Reforming the death penalty and transportation

Despite the so-called Bloody Code, judges and juries were reluctant to see criminals hanged. This made the whole process something of a lottery. Whether a person condemned to hang went to the gallows was a matter of luck. The first significant moves made by government to rationalise the criminal justice system occurred in the 1820s under Peel. 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. 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 the ten years 1815-1824 an average of 89 people were hanged each year, 16 for murder. In 1835-44 it was 13, with 10 for murder. In 1845-1854 on average nine people were hanged each year, all for murder.

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 similar suggestion was made ten years later by a Royal Commission. Why end public executions? Three main reasons were identified:

1. The deterrent effect of public execution was recognised but contemporaries argued that this would still remain if executions were held in private.
2. This was far outweighed by the public order problems posed by the large crowds executions generated.
3. 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[1]. 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.

Transportation

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. It reached a peak in the 1830s without about 5,000 convicts being shipped to Australia each year from Great Britain and Ireland, of whom two thirds came from England and Wales. Three main reasons were given for the end of transportation:

1. There was pressure from the colonists, increasingly proud of their new land, against further transportation of criminals.
2. There was growing faith that prison with hard labour at home was the best means of punishment.
3. The 1838 Molesworth Committee of Transportation said transportation was not a sufficient punishment. Convicts were treated unequally. It also said that transportation was expensive. The Committee concluded that convicts were hardened not reformed by the experience.

Transportation was abolished as a judicial sentence in 1857 though a few offenders continued to be sent to Western Australia for ten years[2].

 

Date	Event
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.
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.
1718	Transportation Act allowed transportation to the colonies for seven years, fourteen years or for life. Between 1719 and 1776 some 30,000 people were transported. As with gaols, transportation was run as a business. For example, Stephenson and Randolph of Bristol called themselves ‘felon-dealers’. They arranged for the transport of convicts and sold them to the Caribbean plantations for up to £80 each.
1775-1783	American War of Independence. Transportation to America ended. This created a crisis as British prisons could not cope with the overcrowding caused by the sudden ending of transportation. Disused ships or hulks were used for emergency prison accommodation but conditions on these ships were poor and many prisoners died.
1787-88	Australia was used as an alternative for transportation. The First Fleet left England in 1787 and arrived at Botany Bay in early 1788. First offenders were sent to New South Wales. Habitual criminals were send to Van Dieman’s Land [Tasmania].
1830s	Development of the Assignment System by which convicts were ‘assigned’ to free settlers and had to work for them. In due course a convict could get a ticket-of-leave [after four years of a seven year sentence], then a conditional pardon [one or two years later] and finally an absolute pardon or certificate of freedom.
1838	The Molesworth Committee of Transportation concluded that between 1787 and 1836 75,200 convicts had been sent to Australia at a cost of £8 million. The Committee wanted transportation stopped and replaced by sentences with hard labour at home.
1842	The assignment system was replaced by the Probation System. This was more severe but equally unsatisfactory.
1853	Transportation to Tasmania stopped. Instead convicts were sent to Western Australia. The Penal Servitude Act 1853 introduced the ticket-of-leave system, a conditional pardon with remission granted towards the end of a sentence to any convict not guilty of idleness or misconduct. Initially the press and MPs appeared to have been sympathetic to convicts released on licence in this way, especially if they were unable to get work or were harassed by the police. Attitudes quickly changed. By the mid 1850s some MPs and sections of the press had become hostile linking the rise in violent crime with ticket-of-leave men now prowling the streets rather than being transported. Amending legislation tightened up the system in 1857 but concerns erupted again with the garrotting panic of 1862. A Royal Commission was appointed to investigate the legislation relating to transportation and penal servitude. Its report resulted in the Penal Servitude Act 1864 that required police supervision of ticket-of-leave men and specified minimum sentences of penal servitude: five years for a first offence and seven years for any subsequent.
1857	Transportation abolished as a judicial sentence mainly as a result of pressure from the colonies.
1867	Transportation ended. In total 150,000 people were sent to Australia; only one in eight of them were women.

With hangings greatly reduced and transportation also stopped, prison was now the main punishment for criminals in Britain.

---

[1] D.D. Cooper The Lesson of the Scaffold, Allen Lane, 1974 examines the debate about public executions.

[2] G. Rudé has produced two books on crime and punishment: Protest & Punishment: The Story of the Social and Political Protesters transported to Australia 1788-1868, OUP, 1978 and Criminal and Victim: Crime and Society in Early Nineteenth-Century England, OUP, 1985.