Wednesday, 16 March 2011

Revising the Bloody Code

The debate between the Whigs and the Tories regarding law reform in the early-nineteenth century centered on the law’s broad application of capital punishment for both violent and property crimes.[1] The Whig reformers argued for graduated sentences tailored to the severity of offenses, so as to project the image of law that is applied fairly, impersonally, and impartially. The opponents of criminal law reform had a more coherent case than contemporaries or subsequent historians have given them credit. Anti-reformers insisted that justice was not a lottery and that judicial discretion was sensible and conscientiously practised. Reformers could point to injustices but anti-reformers could point to many examples that showed the system working with mercy and moderation. The strongest argument of traditionalists concerned whether there could ever be a significant measure of certainty on the way that a punishment was meted out to fit a particular crime. The Criminal Law Commissioners appointed in 1833 ran into major problems when they tried to establish a rational system of sentencing. In their Second Report in 1836, they specified four overall classes of crime each with two alternative penalties; by 1839, there were fifteen overall classes of crime each with a far greater range of penalties and by 1843, the scale of penalties had reached forty-five. The attempts of the Commission to establish precise offences and to codify the criminal law eventually foundered but its eight reports published by 1849 contain the most thorough and principled examination of English criminal law ever made by an official body.

Traditionalists were defending an aristocratic and paternalistic image of justice that focused on the practice of the courts and the use of mercy. Reformers focused on existing severity and proposed an image of Benthamite impersonal justice in which the law was administered equally to all and was above the suspicion of being dependent on the discretion of the judiciary. The problems for the opponents of reform were that moderate and influential Tories like Peel were sympathetic to the reformers’ image of justice. However, what has to be recognised is the logic of the traditionalists’ case and what has to be rejected is the notion that the reformers had a far-sighted vision of nineteenth century progress that would culminate in the modern legal system.

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Sir Samuel Romilly, William Owen

Government Art Collection: 16044

Reform of the criminal law began in the first decade of the nineteenth century and was associated with individual MPs such as Romilly.[2] In 1808, Romilly persuaded Parliament that convicted pickpockets should no longer be sentenced to death. Between 1810 and 1818, the House of Commons passed four Bills abolishing the death penalty for stealing 5 shillings from a shop but all were rejected by the House of Lords. In 1818, a House of Commons committee was appointed to report on capital offences and as a result some obselete laws were repealed. In the ten years 1815-1824, an average of 89 people were hanged each year, 16 for murder. The death penalty began to lose its central role in the criminal justice system with Peel‘s rationalisation of the law even though numbers of capital convictions continued to rise roughly in line with the rise in criminal statistics until the early 1830s. Between 1823 and 1830, the death penalty was abolished for over a hundred offences and in the following decade was removed from other offences: in 1832, from house-breaking, horse-stealing, sheep-stealing and coining false money; and in 1837, from all offences except murder, attempted murder and treason. The number of capital offences continued to be reduced in the 1830s and early 1840s and after this it was rare for anyone to be executed for any offence other than murder. In 1845-1854, on average nine people were hanged each year, all for murder.In 1861, the death penalty was finally abolished for attempted murder.

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At the same time there were reforms of both the criminal and civil court system. In 1813, Manchester appointed stipendiary magistrates, an example followed by Liverpool in 1836, Birmingham in 1856 and Leeds three years later. Court procedures were simplified in the early 1830s and in 1836, prisoners accused of felonies were allowed to have counsel to represent them in court. The problem of imprisonment for debt was addressed in 1844 when it was abolished for amounts less than £20 and was finally abolished for all debts in 1861. This development was aided by the establishment of a system of county courts in 1846 to allow people to sue cheaply for small debts. The mid-1870s saw a major reform of the court system and in 1879, the Director of Public Prosecutions was appointed to organise the prosecution of serious criminal cases.

The hardening attitude towards prison discipline coincided with further legal limitations on capital punishment and the final shift of physical punishment away from the public eye. In 1861, Parliament abolished the death penalty for all crimes other than murder and high treason. In 1856, a Select Committee recommended the ending of public executions and a Royal Commission made a similar suggestion ten years later. Why end public executions? The deterrent effect of public execution was recognised but contemporaries argued that this would still remain if executions were held in private and was far outweighed by the public order problems posed by the large crowds executions generated.

The mid-Victorians increasingly took the view that public executions were morally wrong. Even if people believed in the deterrent effect of hanging, they did not believe it was right for men and especially women and children to see a person hanging at the end of a rope. The last public execution took place outside Newgate on 26 May 1868.[3] The removal of the convict and of punishment from the public gaze robbed the felon of any moment of glory or martyrdom. It was also in keeping with notions of dignity and decorum so important to Victorian sensibilities.

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With the decline in the use of the death penalty, prisons of different varieties had a more central role to place in the punishment of offenders, though until the middle of the century transportation also remained an option for dealing with those deemed serious offenders. The transportation of convicts to English colonies had its origins in the late-sixteenth century. [4] Parliament gave magistrates the power to exile rogues and vagabonds ‘beyond the seas’ in 1597 and James I authorised pardons for condemned felons on condition that they went to the New World. From 1654 onwards, some prisoners who received a reprieve from the death sentence were sent to work on the plantations in North America and the West Indies and in 1678, Parliament approved the idea of sending prisoners to serve their sentences in the American colonies of Virginia and Maryland and in the West Indies where they could be used in developing those lands. However, it was not until the Transportation Act 1718 that Britain systematically adopted foreign exile as a punishment for serious crime. Between 1719 and 1776 some 50,000 people were transported. Transportation to the American colonies effectively ended in 1775 with the American War of Independence. [5] Such was the desparation of the British government over what to do with convicted felons that in the mid-1780s it decided to establish a penal colony in Australia. [6]

From the foundation of New South Wales in January 1788 until 1867, transportation was an important, though increasingly contentious, feature of colonial life. [7] More than 187,000 convicts were sent to Australia, most after 1815.

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The Old Chartist, Joseph Swain, 1862

‘The old man, returning home from transportation, leans on a great stone by the brook side and watches a brown water rat.’

There was growing opposition to transportation in Britain and Australia and in 1840, transportation to New South Wales was discontinued but continued to Tasmania until 1853 and Norfolk Island until 1856. In 1849, transportation started to Western Australia.[8]  Long-term transportation was retained in the 1853 Penal Servitude Act but finally abolished the 1857 Penal Servitude Act. Technically, transportation was replaced by penal servitude, a term of imprisonment that usually included hard labour and was served in British gaols. Ranging from 3 years to life, it was for those who would have been transported for less than 14 years and could also be used as an alternative sentence for those liable to transportation of 14 years or more. In practice, convicts were transported to Western Australia as late as 1867. With hangings greatly reduced and transportation slowed and ten ended, prison was now the main punishment for criminals in Britain.[9]

[1] See, McGowan, R., ‘Images of Justice and Reform of the Criminal Law in Early Nineteenth-Century England’, Buffalo Law Review, Vol. 32, (1), (1983), pp. 89-125.

[2] Hostettler, John, The politics of criminal law reform in the nineteenth century, (Rose), 1992, Ford, T.H., ‘English criminal law reform from Peterloo to Peel’, Durham University Journal, Vol. 76, (1984), pp. 205-216 and Follett, Richard R., Evangelicalism, penal theory and the politics of criminal law reform in England, 1800-30, (Palgrave), 2001.

[3] Cooper, D.D., The Lesson of the Scaffold, (Allen Lane), 1974 examines the debate about public executions. See also, McGowen, Randall, ‘Civilizing punishment: the end of the public execution in England’, Journal of British Studies, Vol. 33, (1994), pp. 257-282.

[4] Innes, Joanna, ‘The role of transportation in seventeenth and eighteenth century English penal practice’, in Bridge, Carl, (ed.), New Perspectives in Australian History, (Sir Robert Menzies Centre for Australian Studies, Institute of Commonwealth Studies, University of London), 1990, pp. 1-24.

[5] Ekirch, A. Roger, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775, (Oxford University Press), 1987 and Morgan, Gwenda and Rushton, Peter, Eighteenth-Century Criminal Transportation: The Formation of the Criminal Atlantic, (Palgrave Macmillan), 2004 provide a detailed account of the operation of the transportation system.

[6] Martin, Ged, (ed.), The Founding of Australia: The Argument about Australia’s Origins, (Hale and Iremonger), 1978, provides a convenient collection of materials on why Australia was chosen.

[7] Rudé, G., Protest & Punishment: The Story of the Social and Political Protesters transported to Australia 1788-1868, (Oxford University Press), 1978 and Criminal and Victim: Crime and Society in Early Nineteenth-Century England, (Oxford University Press), 1985, Shaw, Alan, Convicts and the Colonies: a study of penal transportation from Great Britain and Ireland to Australia and other parts of the British Empire, (Faber), 1966 and Hughes, R., The fatal shore: a history of the transportation of convicts to Australia, 1787-1868, (Collins Harvill), 1987.

[8] Ibid, Shaw, Alan, Convicts and the Colonies and Robson, L.L., The Convict Settlers of Australia, (Melbourne University Press), 1976, and Nicholas, Stephen, (ed.), Convict workers: reinterpreting Australia’s past, (Cambridge University Press), 1988 examine the process and the participants. Smith, Babette, Australia’s birthstain: the startling legacy of the convict era, (Allen & Unwin), 2008 considers why Australians are still misled by myths about their convict heritage. See also Brown, Richard, Three Rebellions: Canada 1837-1838, South Wales 1839 and Victoria, Australia 1854, (Clio Publishing), 2010, Three Rebellions: Famine, Fenians and Freedom 1840-1882, (Clio Publishing), 2012 and Rebellion in the British Empire, (Clio Publishing), 2013.

[9] Smith, D., ‘The demise of transportation: mid-Victorian penal policy’, Criminal Justice History, Vol. 3, (1982), pp. 21-45. See also, Willis, James J., ‘Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State’, Law & Society Review, Vol. 39, (1), (2005), pp. 171-210.

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