Expansion, Crisis, and Transformation: Changing Economies of Punishment in England, 1780-1850.

AuthorMoore, J.M.

UNTIL THE 197OS, HISTORIES OF LATE EIGHTEENTH- AND EARLY nineteenth-century punishment tended to portray a story of the substitution of "rational penal and reformative treatment for blind reaction and petrified tradition" (Griinhut 1948, 1). In particular, "the emergence and consolidation of prisons throughout Western Europe and North America" was, as Sim (1990, 4) highlights, perceived "as a process of benevolent evolution, a movement from barbarism to enlightenment." These Whig histories saw the development and refinement of state punishments as indicative of an increasing level of civilization on the part of penal inflictors (Griinhut 1948, Radzinowicz 1948, Webb & Webb 1963). This interpretation was challenged in the 1970s by authors in the United States and Europe (most notably, Foucault 1991, Ignatieff 1978, Melossi & Pavarini 1981, Rothman 1971), whose revisionist histories contested Whig assertions that change was motivated by civilizing and humanitarian intentions. Instead, the revisionists drew on Rusche and Kirchheimer's (1939, 5) claim that "every system of production tends to discover punishments which correspond to its productive relationships" to argue that the transformation of state punishments during this period represented, in Foucault's (1991, 89) words, "a new economy and a new technology of the power to punish." The transfer from premodern corporal punishments to modern carceral punishment reflected the emergence of capitalism and matched the requirements of its social structures.

Despite their different interpretations, both Whig and revisionist histories agreed that the change that occurred in state punishment during this period was broadly similar across Europe and North America. This consensus about what happened between 1780 and 1850 has been summarized by Ignatieff (1983, 79) as a "revolution in punishment," during which the "decline of punishments involving the public infliction of physical pain to the body" were accompanied by the "emergence of imprisonment as the pre-eminent penalty for most serious offences." Subsequent work has questioned this account and, in the case of England, highlighted the key role played by transportation during this period (Devereaux 1999, Reid 2007). Indeed, Willis (2005, 173) argues that it was only with the "demise of transportation" in the second half of the nineteenth century that "the widespread acceptance of the penitentiary occurred." Rather than experiencing Ignatieff's (1983, 79) "revolution in punishment," Willis (2008, 402) argues that the period was, "at least in the case of Britain ... a time of continuity." The first part of this essay reviews the available empirical data to show that in England, between 1780 and 1850, the major change was a dramatic expansion in all modes of punishment rather than a movement from the corporal to the carceral. There was an increase in the use of imprisonment, but there were also increases in executions, whippings, and transportation. The second part of this essay focuses on the implications of these findings. I argue that the eventual establishment of imprisonment as the dominant form of state punishment in England, in the second half of the nineteenth century, was not due to the attractions of penitentiaries or other carceral models but rather was a response to the unsustainability of preferred alternatives, particularly transportation.

Histories of crime and punishment have tended to focus on felony, which Griffiths (2004, 85) compares to "a little molehill next to the mountain of petty crime." It is therefore important to recognize that English penal law was enforced throughout the period of this study by three tiers of courts. The bottom tier was local magistrates' petty sessions, which Hay (2005, 60) describes as "low law" administered by "laymen, acting without juries." More serious cases, felonies, were sent to either quarter sessions or assizes. Both heard cases with a jury, the quarter sessions being presided over by, in counties, two or more magistrates and, in boroughs, a recorder (part-time junior judge). The assizes, including the Old Bailey in London, were presided over by a High Court judge. Although studies that focus on felony, particularly those that draw on the comprehensive records of the Old Bailey, can tell us much about how the law operated at these higher levels, they are not representative of the "vast amount of the law imposed and suffered, used and resisted" during this period (Hay 2005, 60). Recognizing that most penal sanctions were determined summarily by local justices of the peace creates a major methodological challenge. Although records of assizes and to a lesser extent quarter sessions are available to the historian, the sentences of local magistrates were not systematically recorded, and we can only find traces of them in the archive. Therefore, we can, with a high degree of accuracy, provide well-sourced estimates of those sentenced to death or transported, but with respect to the far more frequent summary punishments--whippings and short terms of imprisonment--ordered by local justices, the claims are inevitably more speculative.

Changing Economies of Punishment in England from 1780-1850

Histories of punishment face the challenge that much of the available archival evidence relates to penal discourses. These debates tell us much, but they risk privileging the ideas and aspirations of reformers over the lived experience of those who were subjected to punishment. In attempting to recreate England's penal economy in this period, I have therefore sought to largely ignore discourses and instead focus on penal practice. In this section of the essay, I use a mix of archival sources and published work to detail the evidence that all state punishments experienced expansion, focusing in turn on capital punishment, corporal punishment, transportation, and imprisonment.

Capital Punishment

While it is true to say that there were fewer executions in 1850 than there had been a century earlier, this outcome was by no means certain. In the preceding century, there had initially been a dramatic increase in executions, followed by a slow decline (Gatrell 1994). The campaigns of Samuel Romilly and others against the widespread use of the death penalty can be better understood as a response to a recent increase in its use, rather than as an enlightened campaign against primitive punishments. (1) Indeed, as Radzinowicz (1948, 535) has highlighted, by Romilly's death in 1818, the criminal law was largely unchanged and his campaign against the death penalty had been spectacularly unsuccessful. Gatrell (1994, 618) has estimated that, from 1770 to 1830, there were between 6,322 and 7,713 executions in England and Wales, an average of over 100 executions each year. This represented a substantial increase from the previous period; using Gatrell's (1994, 617) figures for London and Middlesex to estimate national rates of executions for the period 1700-1769, I calculate that there were on average between 37 and 45 hangings per annum nationally. (2) This expansion in the use of the death penalty from around 1770, peaking in the 1780s, resulted in significantly more executions taking place in the early decades of the nineteenth century than there had been in the first six decades of the eighteenth century (ibid., 616-18). The increase in the number of death sentences issued was even more dramatic. While less than a hundred people a year were sentenced to die in England and Wales during the early and mid-eighteenth century, by the late 1820s this figure had increased to over 1,300 people a year. (3) Whatever else may have been happening in the penal system of the late eighteenth and early nineteenth centuries, there was no decline in the number of people sentenced to death or executed. Although capital sentences and executions did decline dramatically from the late 1830s on, it is important to note that they remained public spectacles. Gibbeting or hanging in irons continued until 1832, and executions continued to take place in public until 1868 (Priestley 1985, 292; Radzinowicz & Hood 1986, 685).

Corporal Punishment

Establishing the extent of the use of corporal punishment during this period is impossible. The overwhelming majority of sentences were determined through summary proceedings and were not systematically recorded. Changing social attitudes to violence, inherent in what Elias (2000) describes as the civilizing process, means it is likely that where corporal practices continued, they were often erased from, or at least muted in, public discourse. However, there is evidence of the continued widespread use of bodily punishment. For example, although its use was restricted in 1816, the pillory continued to be used until 1837 (Wiener 1990, 94). The stocks, which were never legally abolished, continued to be used into the second half of the nineteenth century with, for example, in 1860, a man subjected to six hours in the stocks for gambling on a Sunday in Pudsey, Yorkshire. (4) Although the archival evidence is fragmented and requires more research to fully evaluate, the limited traces available repeatedly suggest that Whig and revisionist claims of a movement away from bodily punishment are not sustainable. To illustrate the continuing role of the corporal, I will use examples from Birmingham prison. Birmingham has been chosen for three principal reasons. Firstly, the evidence cited relates to 1850 and 1851, representing penal practice at the end of (rather than during) our period. Secondly, the prison was constructed in the 1840s, being described by a Home Office inspector of prisons as "a very extensive and complete prison ... which for excellence of site and completeness of construction will bear a comparison with the best modern prisons in the kingdom." (5) Thirdly, the examples I will cite occurred while the prison's governor was Alexander Maconochie (Moore 2011). His...

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