Much has been written about Britain’s ‘Bloody Code’, with horror stories of how children of twelve or less were despatched to the gallows for shoplifting, or how felons were transported for offences that now seem trivial. This suggests a brutally retributive penal system that was the desperate response of the authorities to levels of crime that were getting out of hand. The reality was more complex because, in practice, the criminal law was also characterised by elements of pragmatism and humanity. In the eighteenth and early nineteenth centuries, the courts increasingly imposed non-capital punishments on convicted felons. These might involve detention with hard labour or transportation to the American and later the Australian colonies. Between 1827 and 1830, 451 people were convicted of capital offences in London but only fifty-five of them were actually hanged.
Juries frequently practised what was sometimes called ‘pious perjury’. They often mitigated the severity of the law when prisoners were charged with capital offences. For example, where a prisoner was charged with theft, the jury might undervalue the articles stolen. This reduced the crime from a felony to a misdemeanour, which attracted a lesser punishment. Judges on their own initiative sometimes dismissed cases and reprieves were by no means uncommon. Felons were often sentenced to transportation rather than hanging. A number of women avoided the death penalty by pleading ‘benefit of belly’ because they were pregnant. This allowed them a reprieve until the baby was born and in practice usually mean that they were pardoned. Women in Newgate awaiting trial or execution often bribed the warders to allow men to visit them for the purposes of sex. The outcome, they hoped, would be pregnancy.
The courts exercised an unpredictable, capricious mixture of terror, humanity and clemency which added powerfully to their mystique. The elaborate rituals whereby bewigged judges in ermine-tipped, scarlet robes donned the black cap when death sentences were solemnly pronounced emphasised the majesty of the law and tended to overawe those who offended against it. However, flexibility in how the law was applied could mean inconsistency. The court’s decision might be unclear until the very last minute, greatly heightening the tension. On occasions there were ‘general’ reprieves in celebration of particularly auspicious public events and these could result in even hardened recidivists getting off scot-free.
What was the rationale that underpinned the penal system in the period up to 1800? Three main principles can be identified. One was the concept of deterrence. It was believed that the very public ceremonies involving the condemned prisoner’s last journey to the place of execution, the rituals around the gallows and the felon’s subsequent agonising death were effective deterrents. Retribution was another facet. The suffering attached to the punishment should be proportional to the heinousness of the crime. The third principle was that the offender, even one guilty of a minor crime, had shown his disregard, even his contempt, for the values around which society operated. Therefore it was entirely right and proper that punishment should involve shame and humiliation in public.
The ultimate punishment for City of London and Middlesex criminals up to 1783 was public execution at Tyburn. This provided unequivocal evidence of the State’s legal monopoly of violence. Since the majority of those hanged had offended against laws protecting property, each hanging was intended to send out a clear message that property and the law should be respected. Few people possessed any significant wealth and so the use of this deterrent was evidence of the conflict of interests between the rich and powerful and the poor and disenfranchised. However, was hanging really such a deterrent when pickpockets employed their skills to profitable effect in the crowd massed around the gallows?
From the eighteenth century significant changes were taking place: the reform of criminal law, prisons, and punishments. By 1800 the vast majority of those convicted of a felony were transported to Australia or incarcerated for periods from several weeks to years, often in hulks, floating prison ships moored in the Thames. There was a growing concern, especially from those in positions of authority, that the public hanging of people was not having the desired effect of deterring people from committing crimes.
Bow Street Magistrates Court in Covent Garden.
The thriving market in tabloid-style journalism was quick to recognise the insatiable appetite for sensation and titillation. It fed that appetite with descriptions of lurid crimes and the gruesome punishment of offenders.
The eighteenth century also saw the beginning of serious criticism of the penal system. Henry Fielding, the Westminster and Middlesex JP and co-founder, with his brother Sir John, of the Bow Street Runners, deplored the exhibitionist nature of public hangings and the way in which they either made serious miscreants into swaggering, popular heroes or placed in the limelight the pathetic behaviour and lack of dignity of those unable to hide their terror. He argued that ‘the executions of criminals serve a purpose diametrically opposed to that for which they were designed; and tend to inspire the vulgar with a contempt for the gallows rather than a fear of it’. In practice, most offences went undetected because of the lack of an effective police force and only small numbers of those convicted of felony were hanged. The criminal could therefore go about his activities knowing that he had a good chance of evading arrest and conviction, let alone a premature death on the scaffold.
What system of law enforcement and punishment there was depended upon constables who were expected to keep the peace. There were also night watchmen, or ‘Watch’, who patrolled the streets, and thief-takers who received rewards for arresting and convicting criminals. Night watchmen originated in the reign of Charles II (1660-1685) hence their nickname, ‘Charleys’. Thief-takers were often knowledgeable about what was going on in the criminal fraternity and this, combined with the system of reward, often led to corruption.
Those convicted of forgery and coining were very rarely pardoned, but the frequency with which these crimes continued to be committed strongly suggests that hanging was not an effective deterrent. The question of how to deal with rising levels of crime elicited proposals that varied from increasing the number of capital offences and greater use of corporal punishment to the employment of alternatives such as custodial sentences involving reform and rehabilitation. Enlightenment thinkers, especially in Europe, argued that crime was a problem with economic and social causes that could not be solved merely by creating ever more severe punishment.
Reform was in the air and by the time that Victoria came to the throne in 1837, the number of hanging offences had come down from well over 200 to just fifteen. These offences included murder, arson, rioting, robbery with violence, piracy, wrecking, serious sexual crimes and the theft of government money or securities. Two decades later the number of capital offences had been reduced to just four. The number of hangings in London was falling significantly and a long period of almost uninterrupted economic growth, combined with the presence of the new Metropolitan Police, led to a considerably enhanced sense of security. In 1834, one of London’s executioners had been laid off because there was insufficient work for him. Branding had ended in 1829, gibbeting was abolished in 1834 and the pillory in 1837. Public hangings continued until 1868. Transportation ended in the same year.
London’s population grew at a phenomenal rate. By the end of the nineteenth century it had grown to over seven million. Migration had contributed greatly to this expansion. As London expanded in size and population during the eighteenth and nineteenth centuries the issue of maintaining law and order became a matter of public concern. The reliance upon part-time officials proved inadequate in dealing with law-enforcement. Conditions in London became intolerable and begged for an effective and organised system of policing. Until 1829 arrests depended upon the victims apprehending a criminal and then contacting a police constable, hence the regular hue and cry of ‘Murder!’ or ‘Stop thief!’.
Plan of Pentonville Prison.
Reform may indeed have been in the air, but as always it was an uneven process. The prisons of London continued to be d
ire establishments – cold, insanitary places with regimes that often sought only to punish the prisoner, break his personality and dehumanise him rather than to encourage him towards reform and rehabilitation. Contemporary wisdom favoured the idea of putting prisoners to work in solitary confinement. New prisons such as Pentonville were built to put this concept into practice. Each block had single cells on several floors radiating like the spokes of a wheel. When attending chapel or taking exercise, prisoners were masked and prevented, at least in theory, from communicating with each other. This deprivation of human contact and the hours of solitary confinement frequently drove prisoners insane. Highly imperfect though such prisons were, the use of such places to punish the offender gradually won support as preferable to transportation overseas.
Contemporary thinking favoured the infliction of soul-destroying labour on prisoners undergoing penal servitude. An example was supervised ‘shot-drill’. Heavy iron balls of shot were picked up and passed around a circle of prisoners, but only after each man had placed the shot on the floor and stooped to lift it up before giving it to the man at his side who in turn put it down, and so on. The rationale was to destroy each prisoner’s ‘excess energy’. 1¼ hours of this in the open on a hot day turned even the strongest man into a weakened and quaking mass of human misery. Less physically demanding but mind-numbingly boring was oakum picking. This involved separating the individual fibres of rope cables discarded from sailing ships. The oakum was then put to use in caulking the planks and decks in wooden ships. The ropes were frequently filthy with congealed tar and other substances and in unpicking the rope, masses of floating tarry fibres were released and were of course easily inhaled by the luckless convicts. It is no wonder that many prisoners mutilated themselves or tried to commit suicide – anything that would secure an escape, even a temporary one, from this enforced and pointless employment.
Idleness among the inmates was seen as something to avoid at all costs. It was thought, usually by those members of the upper classes who had never done a day’s work in their lives, to erode morale and morality. Not for nothing did they intone that ‘the Devil makes work for idle hands’. The beau ideal of this school of thought was the treadmill invented by William Cubitt (1785-1861). William was a noted mechanical and civil engineer. It was a devilishly ingenious device in the form of a wheel 16ft in circumference and wide enough to accommodate twenty-four prisoners simultaneously. They supported themselves on a handrail and ‘walked’ at sufficient speed to rotate the massive heavy wheel twice a minute. Care was taken to partition them off from their fellows as they underwent their sessions on the wheel. It was a studied exercise in pointlessness intended to break their spirit and to punish them for being prisoners. It was physically extremely demanding. Each prisoner was required to complete fifteen sessions of fifteen minutes each daily on this contraption. This was roughly equivalent to climbing a mountain over 7,000 feet high – and this on prison rations! Nothing tangible, not even milled grain, was ever produced by the treadmill. Some prisoners were literally ‘broken on the wheel’ in mind and body. For the toughest, it simply bred hatred. An expensive and simplified device was invented in 1840. The ‘Crank’ could be operated by one man who turned a long handle attached to heavy weights. It was back-breaking and demoralising, precisely as it was intended to be.
A treadmill at Brixton Prison.
Wormwood Scrubs Prison was opened in 1874 and completed in 1890. It was based, even at this late date, on the already discredited ‘separate system’, although it broke with normal practice in consisting of several parallel blocks of buildings. Much of the construction work was done by convicts. From the start it contained some of Britain’s most dangerous prisoners.
In 1877 the Prison Act brought every English prison under the jurisdiction of the Home Secretary. They were now paid for by central government out of taxes and immediate responsibility for their operations was placed under a group of commissioners. One intention was to introduce uniform standards and regimes throughout the prison service, but this proved impossible to achieve in the short-term. The treadmill and crank continued to extort their toll of human misery for many more years. Another Prison Act was passed in 1898 which introduced the idea of remission of sentence for good behaviour. The crank and treadmill were abolished and excessive corporal punishment was ended, at least in theory. While official thinking may have been that prisons should prepare their inmates for making a better fist of things once they were released, individual governors had much autonomy and many of them continued to do things as they had always been done. It took a long time for the idea of reform, education and rehabilitation to become accepted practice. In reality, retribution and revenge have never really left the penal agenda.
2
The Prisons of London
This chapter explains the role of the prison in the eighteenth century, and provides a brief outline of the history of some of London’s major places of confinement.
The concept of the prison as a place of long-term confinement for people convicted of serious offences did not really exist before the eighteenth century. Periods of imprisonment were usually brief – often a year or less – and were imposed for a curiously eclectic range of offences. Among those who were consigned to prison were those convicted of offences including perjury, combining against employers, manslaughter and commercial fraud. Offences regarded as felonies and therefore of a more serious nature carried the death penalty but in practice the courts exercised considerable discretion in applying capital sentences when they were extended to a widening range of offences in the eighteenth century. The ‘Bloody Code’ looks rigid and vindictive, but its application was extremely flexible. The arbitrary nature of sentencing probably increased the awfulness of the law because a court’s decision was so difficult to predict. Transportation gave the penal system a welcome alternative to capital punishment. In the late 1760s, as many as 75 per cent of those convicted for felony at the Old Bailey were transported. Transportation was a very convenient, ‘out of sight, out of mind’ sanction leavened by a hint of clemency.
In the middle of the eighteenth century, three major institutions of confinement can be identified in London: debtors’ prisons, jails and the houses of correction commonly known as bridewells. In London, debtors were confined particularly in Ludgate, King’s Bench, the Fleet and the Marshalsea. Debtors were consigned to these institutions until such time as they were able to discharge their debts or Parliament let them off the hook by passing an act declaring them ‘insolvent’. The regime under which these prisoners lived seems curious to modern opinion because the inmates were maintained at their creditors’ expense. Debtors could live with their families, could enjoy visits from friends and business contacts and did not have to undertake the various tasks that came the way of the ordinary prisoners. In fact, they were virtually able to run their businesses from the prison or to leave it daily to work and earn wages. Those able to come up with the necessary financial means could rent privileged accommodation and in some cases they even sublet some of it. If they could discharge their debts, they obtained their freedom.
The Viaduct Tavern which stands opposite to the site of Newgate Prison. It was built shortly after the last public execution in 1868.
The whole system was corrupt and mercenary. Prisons were let out to contractors whose major concern was to maximise their profits. They would provide almost any service in return for cash. Debtors were frequently the kind of people who did not allow mere financial embarrassment to stand in the way of their enjoyment of life and its varied, often expensive, pleasures to the full. The keepers of the Fleet and King’s Bench were prepared to allow debtors to live outside their respective prisons if a suitable financial arrangement could be reached. Debtors were not treated as felons but were often a disruptive element, especially on those occasions when they were confined alongside criminals. Many of them were irritatingly querulous and acted as ‘barrack-room lawyers’, inciting discontent and insubordination
among the other inmates.
The second category of institution was the local jail controlled by a county or a borough. Few of these were large establishments, and Newgate was by far the largest of them with more than 250 inmates in 1750. These prisons contained debtors, people awaiting trial, some prisoners serving short custodial sentences and those waiting to be transported. The rules said that the different classes of prisoner should be kept apart but in practice, largely because these prisons were understaffed, the inmates mingled and developed a regime whereby most goods and services could be obtained in exchange for cash. These jails were run for profit by contractors who cut financial corners wherever they could. The actual keepers found many ways to add to their meagre wages by further scrimping for those prisoners who could not buy favours and selling favours of all sorts to those who could. Many prisoners only survived on the support of friends and relatives.
The bridewells or houses of correction were sometimes a separate part of a major jail or buildings entirely on their own, and they were more numerous than the other types of prison. Their ostensible purpose was to tackle the problem of vagrancy by housing ‘sturdy vagabonds’ and other ne’er-do-wells, the able-bodied who were not prepared to work. By combining elements of punishment with set tasks for the prisoners, the house of correction was the only type of prison at this time whose regime contained at least some sense of trying to reform its inmates. It was hoped that the experience would persuade them to value the work ethic. In some places the local industries in which there was a lot of outwork relied very heavily on the labour provided by the house of correction. The work involved was unskilled and monotonous. It is stretching the imagination to believe that inmates who, for example, spent their time picking feathers as stuffing for mattresses, found this an encouraging introduction to the world of work. In their turn, the businesses concerned faced the low productivity inherent with forced labour. The regimes within the various houses of correction varied widely. All were dirty and pest-ridden, but an inmate who underwent a brief stay in the Clerkenwell House of Correction in 1757 made it clear that many of its prisoners spent the time lounging around gaming, drinking and fornicating.
Olde London Punishments Page 2
