The Hanging Tree: Execution and the English People, 1770-1868.

• Author: Beale, Sara Sun

INTRODUCTION

David Donald begins his Pulitzer Prize-winning biography of Abraham Lincoln by recounting the story of President John F. Kennedy's annoyance with a group of scholars who had hoped to enlist him in a poll that ranked American presidents. No one who had not sat in the Oval Office, and who did not experience the pressures of the presidency, Kennedy bristled, could judge any of them failures. Taking Kennedy's observation to heart, Donald informs his readers that he had set himself the task of explaining, not judging, Lincoln.(1)

Victor Gatrell(2) takes the opposite tack. As he notes in the preface, The Hanging Tree does not aim at objectivity (pp. ix-x). It claims to be "an emotional book" (p. ix), and it is certainly a judgmental one. Gatrell is appalled by the "furred homicides and sable bigots" who administered the English criminal law of the early nineteenth century and defended its reliance on capital punishment (pp. 497-514). He wants his readers to be appalled as well. He dismisses the leading common law judges of the period as bad-tempered mediocrities (pp. 502-14). King George IV, who began his reign determined not to execute anyone, emerges as "less a humane man than a sentimental or squeamish one," and one who was weak and ineffective to boot (p. 551). Gatrell denies Robert Peel the role of legal reformer and characterizes him as "the great hangman," a seriously flawed human being, only partially redeemed by the candor with which he revealed his questionable motives (p. 568). Gatrell judges all of them failures. Even the saintly Elizabeth Fry is portrayed as a person who was "prejudicially selective" in her campaigns on behalf of prisoners (pp. 404-05). Nor does Gatrell reserve his invective for those who are long and safely dead. He rejects the analyses of modern historians from Cynthia Herrup to E.P. Thompson as inadequate, and characterizes the approach taken by Tom Laqueur in interpreting the behavior of the scaffold crowd as "absurd" (pp. 29, 220).

As Gatrell explains, the scale of the phenomenon of hanging in England and Wales fueled his anger. Gatrell estimates that 35,000 men, women, and children were condemned to death in England and Wales between 1770 and 1830 (p. 7). Though most were reprieved to the hulks or transported to Australia, approximately 7,000 were executed (p. 7). After a sharp decline in the number of hangings in the early years of the nineteenth century, executions significantly increased with the end of the Napoleonic Wars. In London alone, sixty-five people were hanged between 1816 and 1830, compared with only seventy-nine during the eighty years from 1701 to 1780.(3) In London, the authorities hanged an average of twenty-three persons per year throughout the 1820s (p. 9). Then, suddenly, the system ground to a virtual halt. After the Whigs came to power there were reforms in both law and practice, and death sentences dropped from well over four hundred in 1837 to fifty-six in 1839 (p. 9). Gatrell calls the "retreat from hanging" in the 1830s the most sudden and important "revolution in English penal history" (p. 10).

Gatrell explores how various segments of society in England felt as the number of executions increased dramatically during "the bloody code's fullest flowering" (p. ix) and then, quite suddenly, fell to a trickle in the late 1830s. The Hanging Tree ends in 1968, when Parliament abolished public executions. The book is divided into six main parts, plus an epilogue. The first three parts explore the reactions of the plebeian and polite classes of English society. The fourth and sixth parts consider the development and manipulation of public opinion and the official response to individual mercy petitions and to penal reform efforts, focusing on judges, the King-in-Council, and Home Secretary Robert Peel. The fifth part is a microhistory, developed from one of the most extensive mercy appeal files in the Home Office archives. The epilogue explores the events leading up to the legislation that abolished public executions in 1868.

The Hanging Tree is an extremely dense 611 pages. It includes enough material to make up several books, including a microhistory about a rape trial and its aftermath; a book about the flash ballads, broadsides, and other evidence of plebeian attitudes toward public hangings; a book about the attitudes of the polite classes toward hangings; and a book about the appeals process, the individual petitions, and the official responses to them. The successful combination of all of these elements in a single book would have required unusually effective editing, which Gatrell did not provide. The result is a book only marginally better than the sum of its parts.

Part I of this review provides some background on the period in question, discusses the organization and themes of The Hanging Tree, and examines the evidence from the flash ballads, broadsides, and mercy petitions. Part II evaluates The Hanging Tree as a work of legal history, and Part III evaluates it as a commentary on some of the law reform issues of our own time.

1. BACKGROUND

   By the end of the eighteenth century there were over 200 capital crimes in England's criminal code -- the so-called bloody code -- and two-thirds of the executions during the period before the reforms of the 1830s were for property crimes, including burglary, housebreaking, robbery, forgery, and theft of horses, sheep, or cattle (p. 7). Although wealthy murderers and forgers were hanged occasionally, most of those hanged were the "poor and marginalized" (p. 8). Public hangings constituted a significant and frequent ritual in metropolitan and urban provincial life and were embedded deeply in the collective imagination.(4) Crowds of 30,000 to 40,000 commonly attended executions, and reports place crowds of 100,000 at London's most highly publicized executions.(5)

   Gatrell forces the reader beyond the euphemisms that typically enshroud discussions of the spectacle that those crowds witnessed. Arguing that other historians have sanitized the process (p. 29), he insists that the reader confront "the bleaker truth which social memory has censored -- that most felons went to their deaths in quaking terror" (p. 37). He details the agony of death on the gallows, where suffocation took five, ten, or even fifteen minutes, and sometimes came only when the hangman pulled on the condemned prisoner's legs to put him out of his agony (pp. 45-50). Executioners bungled some hangings so badly that the prisoner had to be hanged again (p. 50). Despite technological advances in other fields, executions remained primitive and painful under "a policy of deliberate neglect: hanging was never meant to be a dignified or peaceful quietus" (p. 51).

   1. Plebeian Attitudes

      How did plebeians behave at executions, and what did they really think of them, and of the law? Gatrell argues that plebeian views of the hanging laws were far more complex than previously understood, either by historians or by the polite society that abhorred the crowd's behavior at executions. Gatrell challenges the view that the crowd celebrated executions in a drunken carnival-like atmosphere. He does not deny the fact of the outward behaviors but interprets them as strategies of psychological defense: "[T]he crowd's passion was not always or chiefly celebratory or ghoulish. On the contrary, its passion helped to cancel out terror while camouflaging its submission to the authority that did these things" (p. 76).

      Gatrell employs two contemporary accounts of the same execution to illustrate the gap between the real feelings of the crowd and the interpretation of polite observers, and to demonstrate one of the major forms of plebeian response to the hanging laws. In 1848 a barrister wrote disapprovingly about the insolent bearing of a prisoners who " `died with the apparent insensibility of a dog,' " and about the prisoner's mother, who cried "Bravo" when her son dropped, expressed pleasure that he "died game," and left the execution with others to go drinking in a public house.(6) Other accounts reveal, however, that the prisoner in question was far from indifferent to his fate. The Times reported that the prisoner protested his innocence until the eve of his execution and then wept while writing farewell letters to his family and sending them locks of his hair so that something of himself might survive (p. 109). Taking comfort in the sheriff's promise to send his family home to Yorkshire, the prisoner bowed to the crowd at the scaffold and then " `suffered severely' " when he dropped.(7) As for the prisoner's supporters in the crowd, Gatrell argues that they hid their true feelings and refused to play along with the state's ritual. The way to cope with the pain and shame of the gallows was "to display your contempt for it, to applaud the victim's courage, to parade your own courage in fellowship, and to lead life onwards" (p. 111). "[D]on't let the bastards grind you down."(8)

      Gatrell finds the same spirit in the flash ballads. Flash ballads celebrated "drink, devil-may-care heroism, and bleak endings at Tyburn," and provide, Gatrell argues, the best evidence of the real attitudes of the common people toward executions.(9) The flash ballads "confronted life's horrors without moralizing and sentimentality, and then refused to take them seriously" (p. 123). The energy of the songs was not for protest, but a celebration of triumph over adversity or getting something for nothing (p. 133).

      Although some of the ballads are filled so with cant terms that they are difficult to follow even with the explanatory footnotes, the ballad of Jack (later Sam) Hall strongly supports Gatrell's point. The earliest known version concludes:

      I sail'd up Holborn Hill in a cart, in a cart,

      I sail'd up Holborn Hill in a cart.

      I sail'd up Holborn Hill, at St. Giles's drunk my fill,

      And at Tyburn made my will in a cart, in a cart. [p. 141]

      The last three stanzas of a popular...