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Punishment and Brutalization in the English Enlightenment

Published online by Cambridge University Press:  28 October 2011

J. S. Cockburn
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Extract

“As punishments become more cruel, men become more ferocious.” That contention, voiced in this instance by a contributor to The Gentleman's Magazine in 1786, had been a respected tenet of Enlightenment penal theory since its articulation by Cesare Beccaria twenty years earlier. In the interim, commentators on both sides of the Channel had continued to theorize about the impact of public physical punishments on the temper of society. Repeated public executions, thought one contributor to The Times, led only to “a shameless apathy”; another cautioned that, “When the wantonness of oppression is made familiar to the eye, the sensibility of the people…degenerates into despondency, degeneracy and stupidity,…” and he repeated Montesquieu's sinister simile likening the tranquility of such a state to the mournful silence of a city that the enemy is about to storm. In the aftermath of the French Revolution, however, such speculation took on the chilling force of prophecy fulfilled, and for the next fifty years a chorus of increasingly alarmed English voices warned of the potential for insurrection inherent in physical punishments. Continued recourse to public executions, a “festival of blood, [was] calculated to shock or brutalize the feelings of man, [to] encourage ferocious habits in the people.” “Revolutions,” trumpeted the Morning Herald in 1835, “are always most bloody in countries whose laws have most familiarized the people with spectacles of vengeance.”

Type
Symposium: English Legal History in the Age of Mansfield
Information
Law and History Review , Volume 12 , Issue 1 , Spring 1994 , pp. 155 - 179
Copyright
Copyright © the American Society for Legal History, Inc. 1994

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References

1. Gentleman's Magazine, March 1786, p. 206.

2. Beccaria, Cesare, Essay on Crimes and Punishments, trans. Paolucci, H. (1764; Indianapolis, 1981), 50.Google Scholar

3. The Times, February 16, 1786.

4. Ibid., May 8, 1786.

5. Morning Herald, January 17, 1834; ibid., June 1, 1832.

6. Ibid., February 10, 1835.

7. The Times, July 24, 1786.

8. Ibid., June 24, 1788.

9. Fielding, Henry, An Enquiry into the Causes of the Late Increase of Robbers (London, 1751), 2, 31Google Scholar, rejecting the assertion in Shaw, J., The Practical Justice of Peace, 2 vols. (London, 1728), 2:113.Google Scholar The passage was removed from the 1751 edition of Shaw's work.

10. Strutt, J., The Sports and Pastimes of the People of England (London, 1801), 195Google Scholar; Dodd, W., The Frequency of Capital Punishment Inconsistent with Justice, Sound Policy and Religion [London, 1769?], 7Google Scholar; Colquhoun, P., Police of the Metropolis (London, 1796), 260.Google Scholar See also a similar view expressed by the radical Francis Place: British Library, Add. MSS 27825–29.

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16. See, for example, The Times, November 17, 1786; ibid., October 14, 1788 (whipping). For references to fatalities on the pillory see below, note 104.

17. These figures are taken from the appendices to Cockburn, J. S., ed., Calendar of Assize Records: Introduction (Her Majesty's Stationery Office, London: 1985).Google Scholar

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21. Ibid., December 31, 1790.

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23. Gentleman's Magazine, August 1733, p. 436.

24. A List of Persons executed at Bristol since the Year 1741 (Bristol, 1835).

25. List of All the Executions in Nottingham from 1727 to 1839 (Nottingham, 1840?).

26. Public Record Office, ASSI 2/1–3 [unfoliated].

27. Ibid., ASSI 42/1 [unfoliated].

28. Cockburn, J. S., ed., Calendar of Assize Records: Essex Indictments, Jas I (HMSO, 1982)Google Scholar, no. 1260; PRO, ASSI 2/2 [Glos., Winter, 35 Chas. II].

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32. The Times, June 7, 1786.

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35. For Europe, see Edgerton, S. Y., Pictures and Punishment: Art and Criminal Prosecution during the Florentine Renaissance (London, 1985)Google Scholar; Spierenburg, Spectacle of Suffering, 43–80, 186–88.

36. Rye, England as Seen by Foreigners, 89. German and Dutch cities had professional executioners before the sixteenth century: Spierenburg, Spectacle of Suffering, 14–15, 18.

37. PRO, ASSI, 42/1, 2; Babington, Z., Advice to Grand Jurors in Cases of Blood (London, 1677), 52–53.Google Scholar These examples, of which he was apparently unaware, indicate that Spierenburg's chronology was not universal: Spectacle of Suffering, 27.

38. Rye, England as Seen by Foreigners, 89.

39. A Compleat Collection of remarkable Tryals … in the Old-Bailey (London, 1721), 245.

40. Select Trials … in the Old Bailey, 4 vols. (London, 1742), 4:100.

41. This interpretation of the dynamics of public execution agrees substantially with that advanced in Laqueur, T. W., “Crowds, Carnival and the State in English Executions 1604–1868,” in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. Beier, A. L. et al. (Cambridge, 1989), 309–23.Google Scholar However, his conclusion that “from the audience's perspective executions were [consistently] a species of festive comedy or light entertainment” (ibid. 323) caricatures complex audience reactions and subsumes a complex, and changing, interaction as “carnival.”

42. Quoted i. Griffiths, A., The Chronicles of Newgate (London, 1883), 176.Google Scholar

43. See, for example, The Araignment of John Selman … (London, 1612), 17; The Times, December 15, 1787; see notes 116 and 118 below.

44. Babington, Advice to Grand Jurors, 52–53.

45. A Compleat Collection, 245.

46. Sharpe, J. A., Judicial Punishment in England (London, 1990), 32.Google Scholar

47. For some examples and a brief discussion see Cockburn, Calendar of Assize Records: Introduction, 52–53, 90–91, 115–16.

48. Cockburn, J. S., “Patterns of Violence in English Society: Homicide in Kent 1560–1985,” Past and Present 130 (February, 1991): 86–87.CrossRefGoogle Scholar

49. The Diary of John Evelyn, ed. Bowle, J. (Oxford, 1983), 333.Google Scholar

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51. See Sharpe, J. A., “‘Last Dying Speeches’: Religion, Ideology and Public Execution in Seventeenth-Century England,” Past and Present 107 (May 1985): 144–67.CrossRefGoogle Scholar

52. Blount, while waiting on the scaffold for the executioner to complete his work, was asked by an onlooker if he would like a drink. He replied that he would, but that unfortunately he had nowhere to put it. Wood, A., Annals of Oxford, 4 vols. (London, 1889–1899), 1:537.Google Scholar

53. SirFortescue, John, De laudibus legum Anglie, ed. Chrimes, S. B. (Cambridge, 1942), 43–53, 63–65Google Scholar; SirSmith, Thomas, De Republica Anglorum (London, 1583), 85.Google Scholar

54. Araignment of John Selman, 17.

55. Goodcole, Henry, Heaven's Speedie Hue and Cry sent after Lust and Murther (London, 1635).Google Scholar

56. The Diary of Ralph Thoresby (1677–1724), ed. Hunter, J., 2 vols. (London, 1830), 1:131.Google Scholar

57. Cockburn, J. S., ed., Calendar of Assize Records: Kent Indictments, Elizabeth I (HMSO, 1979), no. 389.Google Scholar

58. Mandeville, B., An Enquiry into the Causes of the Frequent Executions at Tyburn (London, 1725), 36.Google Scholar

59. Rye, England as Seen by Foreigners, 110, 133.

60. Ibid., 110.

61. See, for example. Radzinowicz, L., A History of English Criminal Law and its Administration from 1750, 4 vols. (London, 1948), 1:175.Google Scholar

62. Araignment of John Selman, 17.

63. See Linebaugh, P., “The Ordinary of Newgate and his Account,” in Crime in England 1550–1800, ed. Cockburn, J. S. (London, 1977), 246–69.Google Scholar

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65. Goodcole, Heaven's Speedie Hue and Cry.

66. Goodcole, Wonderfull discoverie (“Apology to the Christian Readers”).

67. The speech and deportment of Col. James Turner at his execution … (London, 1664); The Diary of Samuel Pepys, ed. Latham, R. and Matthews, W., 11 vols. (London, 1971), 5:23–24.Google Scholar

68. An Exact Narrative of the Bloody Murder and Robbery Committed by Stephen Eaton, Sarah Swift, George Rhodes and Henry Prichard upon the Person of Mr. John Talbot, Minister (London, 1669), 8.

69. Mandeville, Causes of the Frequent Executions at Tyburn, 19–28, 37. It is noteworthy that in Hogarth's “The Idle Prentice Executed at Tyburn” (1747), the ordinary of Newgate sits, marooned in his coach in a dense crowd, isolated and functionless.

70. The Bloody Husband and the Cruell Neighbour… (London, 1653), 11; Diary of Ralph Thoresby 1:131.

71. See, for example, PRO, SP 44/81, fols. 27, 136.

72. The practice was recommended in an anonymous proposal made to the House of Commons, circa 1694: BL, Add. MS 42593, fols. 4–5v. For examples of the practice see Gentleman's Magazine, March 1731, p. 123; ibid., March 1748, p. 137; ibid., March 1750, p. 239.

73. PRO, SP 44/89, fols. 350–51. For instances in the early 1770s, see ibid., SP 44/90, fol. 214; ibid. 44/91, p. 7; ibid. 44/92, pp. 38–39.

74. Goodcole, Wonderfull discoverie.

75. BL, Add. MS 27826, fol. 100; The Weekly Chronicle, May 7, 1837 (account of execution of Jas. Greenacre); BL, 1880.c. [broadsides printed in Bristol 1700–1840]; ibid., Cup.407.mm.29 (1–52) [lcollection of East Anglian broadsides 1707–1832].

76. “Old Bailey Sessions Papers”: see Beattie, Crime and the Courts, 24–25.

77. Mandeville, Causes of the Frequent Executions at Tyburn, 21.

78. Quoted in Griffiths, Newgate Chronicles, 165.

79. Notably by Sharpe, Judicial Punishment, 31–34.

80. See, for example, PRO, ASSI 2/1, 2, passim; 42/1.

81. Diary of John Evelyn, 333.

82. Lord Russel's Farewel, Who was Beheaded for High Treason in Lincoln's-Inn-Fields, July 21st 1683 (London, 1683); Disny's Last Farewell. Being an Account of the Execution of William Disney Esqr, Who was Drawn, hang'd, and quartered on Monday the 29th of this Instant June, 1685. For Printing of Monmouth's Treasonable declaration (London, 1685); A Full Account of the Tryal of Godfrey Cross for High-Treason (London, 1690).

83. See above, note 67.

84. A Compleat Collection 2:190–92.

85. Transportation Act, 4 Geo. I, c. all. For the context see Beattie, Crime and the Courts, 500–506.

86. Mandeville, Causes of the Frequent Executions at Tyburn, 37. See also Laqueur, “Crowds, Carnival and the State,” 325.

87. Fielding, Causes of the Late Increase of Robbers, 118, 123–24. See also The Times, February 16, 1786.

88. 32 Hen. VIII, c.42 (“An act concemyng Barbours & Surgeons to be of one companie”).

89. Goodcole, Heaven's Speedie Hue and Cry, sig. C3.

90. The Pepys Ballads, ed. Rollins, H. E. (Cambridge, Mass., 1929–1931), 7:40–43.Google Scholar

91. Mandeville, Causes of the Frequent Executions at Tyburn, 27. See also Beattie, Crime and the Courts, 527; Linebaugh, P., “The Tyburn Riot against the Surgeons,” in Albion's Fatal Tree, ed. Hay, D. et al. (London, 1975), 65–117.Google Scholar

92. See, for example, Gentleman's Magazine, December 1740, pp. 570, 621; An Account of the Extraordinary Life and Execution of Mary Green (London, 1820); An Account of the Execution of Elizabeth Simmonds… (London, 1826).

93. 25 Geo. II, c.37 (“An Act for better preventing the horrid crime of Murder”).

94. This estimate is based on a survey of the surviving Crown-side records from the Southeastern, Midland, Norfolk, Northern, and Oxford assize circuits: PRO, ASSI 31/2–26; ibid. 11/1–5; ibid. 33/1–12; ibid. 42/1–12; ibid. 41/7; ibid. 2/1–31.

95. Mandeville, Causes of the Frequent Executions at Tyburn, 27–28.

96. PRO, SP 44/79A, fols. 403–4, 434 (smallpox, 1721); ibid. 44/88, pp. 78–79, 82–83; Select Trials… in the Old Bailey (London, 1764), 4:285 (styptic, 1763); Gentleman's Magazine, January 1731, pp. 10, 18–19 (ear surgery).

97. Beattie, Crime and the Courts, 431–33, 500–506.

98. A Compleat Collection 3:117; PRO, ASSI 2/6–9.

99. Gentleman's Magazine, June 1738, pp. 286–88 (burning); December 1731, p. 532 (castration); BL, Add. MS 42593, fols. 4–5v. (gibbeting); Ollyffe, G., An Essay… to prevent Capital Crimes… (London, 1731), 8–9 (public torture)Google Scholar; Parsons, Robert, The Jesuit's Memorial, ed. Gee, E. (London, 1690), 252–54 (whipping before execution).Google Scholar

100. Fielding, Causes of the Late Increase of Robbers, 123–24, 126.

101. Hardy, W. J., ed., Hertford County Records: Sessions Rolls 1699–1850 (1905), 2:91Google Scholar; PRO, ASSI 2/16; ibid. 31/3; ibid. 33/2.

102. Penitentiary Act, 19 Geo. III, c. 74; 57 Geo. III, c. 75. Women were whipped in private until 1820.

103. Hardy, Hertford County Records 279 (1820); PRO, ASSI 31/23, p. 321 (1820); ibid. 31/24, p. 717 (1825); ibid. 33/12 (1832); Halifax Guardian, June 20, 1835.

104. The Times, November 25, 1786; Brief Statement of Proceedings… upon Several Bills for Amendment of the Criminal Law (London, 1811), 44; Select Trials… in the Old-Bailey (1764), 3:153; Gentleman's Magazine, April 1780, pp. 243, 245; Beattie, Crime and the Courts, 468.

105. Select Trials… in the Old-Bailey (1764), 3:153.

106. Brief Statement of Proceedings, 44. The evolution of this argument merits further examination. By the middle of the nineteenth century, members of Parliament apparently believed that “for centuries” criminal punishments had expressed the will of the people: Laqueur, “Crowds, Carnival and the State,” 353.

107. Gentleman's Magazine, April 1780, pp. 243, 245.

108. See, for example, PRO, SP 44/94, p. 406; ibid. 44/95, p. 175; ibid. 44/96, p. 85.

109. James, J., Continuation and Additions to the History of Bradford (London, 1866), 89–90Google Scholar; The Times, November 22, 1786; ibid., October 18, 1800.

110. Griffiths, Newgate Chronicles, 150.

111. Gentleman's Magazine, March 1752, p. 141 (Oxford); ibid., April 1752, pp. 188–89 (Epping); Select Trials …in the Old-Bailey (1764), 4:192 (Islington); Petrie, C., The Four Georges (London, 1946), 195 (Moorfields).Google Scholar

112. Gentleman's Magazine, April 1732, p. 722; Particulars of the Trial and Execution of William John Marchant (London, 1839).

113. Gentleman's Magazine, December 1783, p. 1061; Griffiths, Newgate Chronicles, 176.

114. Gentleman's Magazine, April 1788, p. 361.

115. Mandeville, Causes of the Frequent Executions at Tyburn, 37.

116. Morning Herald, April 12, 1836.

117. General Executions for 1856….

118. Execution of William John Marchant.

119. Life, Trial, and Execution of Francis Benjamin Courvoisier… (1840); The Weekly Chronicle, May 7, 1837.

120. The Last Dying Speech and Confession of Joshua Slade… (London, 1827).

121. General Executions for 1856…; BL, 1888.C.3 (undated newspaper cutting describing execution of Chas. Thos. White); The Dying Speech… of John Edwards, aged 14… (London, n.d.); BL, 1880.c., no. 221 (account of execution of Benjamin Oldroyd at York, n.d.).

122. An Account of the Horrid Execution of Samuel Brown (London, n.d.).

123. Particulars of the Trial and Execution of James Philips and John Wade… (London, 1822).

124. See above, note 92.

125. 31 Viet. C.24. For the context see Cooper, D. D., The Lesson of the Scaffold: The Public Execution Controversy in Victorian England (Athens, Ohio, 1974).Google Scholar

126. See, for example, Life, Trial, Confession and Execution of Thomas Corrigan (n.d.):

Last Christmas day we past together,

Me and my dear murdered wife,

My only kind and sweet Lousia,

Free from malice, spleen and spite,

Alas she little thought dear creature,

When so happy, brisk and gay,

Her husband like a wolf would meet her,

And to take her life on Boxing Day.

127. The term is borrowed from MacDonald and Murphy, Sleepless Souls, pt. II.

128. The Life, Trial, Sentence and Execution of S. Adams… (London, 1859); Life, Trial, Confession and Execution of Moses Hatto (London, 1854).

129. Halifax Guardian, June 20, 1835; John Clark, “History and Annals of Bradford…” (n.d.), 93 [TS on deposit in Bradford Central Library]. I owe these references to Richard Soderlund.

130. Leeds Intelligencer, June 12, 1828.

131. Thompson, English Working Class, 662n.

132. Grenadier Guards, R 550 (July 30, 1821). See also Steppler, G. A., “British Military Law, Discipline, and the Conduct of Regimental Courts Martial in the later Eighteenth Century,” English Historical Review 102 (1987): 881.Google Scholar For the nature and context of contemporary opposition to military flogging see Dinwiddy, J. R., “The early nineteenth-century campaign against flogging in the army,” English Historical Review 97 (1982): 308–31CrossRefGoogle Scholar; Steiner, E. E., “Separating the soldier from the citizen: ideology and criticism of corporal punishment in the British armies, 1790–1815,” Social History 8 (January 1983): 19–35.CrossRefGoogle Scholar I owe the latter reference to Douglas Hay.

133. The Life of Alexander Alexander, ed. Howell, J., 2 vols. (London, 1830), 1:86–87.Google Scholar

134. Grenadier Guards, R 559.

135. Interviewed in 1858, a ninety-year-old resident could describe in matter-of-fact detail the ducking-stool, pillory, and public whippings of late-eighteenth-century Bradford. He then went on to locate the bull ring, utilizing the pillory as a reference point with the nonchalant familiarity more usually reserved for a favorite public house: James, History of Bradford, 89–90. See also the account of a whipping at the Old Bailey in 1786: The Times, June 7, 1786.

136. Emsley, Clive, The English Police (London, 1991), 75, 204.Google Scholar See also Devon, Criminal and Community, 174.

137. “Flogging judge brings back ‘cat’,” The Independent, September 22, 1991. The instrument itself was made in England.