Traditionally, British judges sentencing criminals had five principal options: capital punishment, corporal punishment, exile, imprisonment and torture. Judges sentencing criminals to ‘savage’ sentences were using proportionate and appropriate punishments according to the expectations of the time. The sentences were anticipated by all parties. Punishments were inflicted in public and there’s a high probability that criminals had seen others suffer what they were about to receive. During the period the intellectual framework changed. Savage sentences and the numerous capital offences were criticised as being disproportionately harsh. Sir Robert Peel introduced a series of reforms recognising the changing times. Wholesale changes were introduced in 1868 ending public execution and transportation. These punishments had been the twin centrepieces of British justice prior to these reforms. Society’s opinion on proportionate sentencing meant many traditional punishments came to be regarded as barbaric. The Cato Street Conspirators who’d committed treason, highlighted traditional barbarism as never before. However new forms of punishment, whilst appearing morally better, were as excessive as those that they’d replaced.
Piracy was a huge problem for the British in the 18th century. Britain had a world-wide trading empire, which was lucrative in the extreme. This wealth attracted pirates. As a consequence the Royal Navy was expanded to protect merchant shipping. Fleets were stationed strategically in regions such as the West Indies and the west African coast where trading routes were especially vulnerable. Nonetheless piracy flourished. Heavily armed pirates usually avoided direct confrontation with the Royal Navy but when cornered they fought with the desperation of those who knew their fate if captured alive. Those who were captured were normally brought back to London to face the Admiralty Court. This court had an uncompromising understanding of proportionate sentencing. Punishment was retribution and deterrence. As always in the 18th century, execution was in public but the form of execution was unique for pirates.
Admiralty judges sentenced pirates to be hung at Execution Dock on the River Thames, London. A short rope was used so that asphyxiation lasted longer, adding torture to the death penalty. Pirates were left hanging in chains for three tides to wash over them. The Admiralty sentenced them, in other words, to a symbolic drowning. This punishment was principally retribution. Deterrence was only partially successful as there were numerous executions at Execution Dock1.. This punishment was unique to pirates. Other traditional punishments were tailored to the circumstances where it was felt fitting that the punishment should be designed to fit the crime.
The case of Admiral Byng is a case in point. He was executed in 1757 for failing to be sufficiently proactive whilst on patrol in the Mediterranean during the Seven Years War against the French. He was executed after he gave the signal to fire on the poop deck of his own ship. Voltaire summed Byng’s execution up as pour encourager les autres that is, a deterrent to any other naval officer who was insufficiently enthusiastic.
The Cato Street Conspirators (1820) were convicted of treason. The designated punishment for treason was being hung, drawn and quartered. This punishment was reconfigured to hanging and decapitation. The government celebrated the conviction of the conspirators by ordering a commemorative axe (which wasn’t used) to do the job. After being hung, their heads were surgically removed and displayed to the crowds. Changing attitudes meant that this execution was unpopular as a throwback to a barbaric era.
In 1800 more than 200 offences were punishable by hanging. There were many egregious examples of young children being hung and public opinion moved decisively against capital punishment in these cases. Changing opinions about proportionate sentencing meant that juries often refused to convict even when there was cast-iron evidence. Judges sometimes didn’t use a capital sentence even when strictly speaking the convict should have been sentenced to execution. They substituted execution with transportation.
The Home Secretary, Sir Robert Peel, reduced offences attracting capital punishment from 225 to 60 in 1830 as the government recognised that execution was ineffective as a deterrent. Over the next thirty years prison became the normal punishment for most crimes in Britain. In 1861 the number of capital crimes was further reduced to four2. Following the passing of the Capital Punishment (Amendment )Act 1868 executions were moved into the privacy of prison buildings. This ended the unseemly carnival atmosphere which often accompanied executions.
Corporal punishment in the army and navy was authorised by officers who were judge and jury. The scale of the punishment was a matter of ‘custom and practice’. This resulted in wide variations from regiment to regiment and ship to ship. The brutal Earl of Cardigan’s regiment was notorious for savagery. In the navy it was a similar story with the infamous Captain Bligh provoking the most famous mutiny of the 18th century. School teachers had the same powers as officers, School discipline varied from school to school but none of them were ‘soft’ on discipline.
Corporal punishment was routinely used in British schools. They were notorious for flogging their pupils with breathtaking savagery. Charles Dickens wrote Nicholas Nickleby in 1838. In that novel he created Dotheboys Hall as a caricature of the boarding (residential) schooling that was typical at the time. These schools were small and usually located in remote areas of Britain where there was no scrutiny. Unfortunately many children were farmed out by parents who had no interest in their welfare and as a result they were subject to whatever the master chose to do. At Dotheboys Hall the head teacher was evocatively named by Dickens as Wackford Squeers. He intended that this name should arouse subliminal images of an ignorant sadist. Dickens based Nicholas Nickleby on a short research visit to Bowes Academy in rural Yorkshire where he found a cemetery with pupils from Bowes Academy. Clearly punishment at the Academy occasionally resulted in death. Dickens estimated that one child a year died with others left permanently injured. Once in school they entered an environment of endemic, institutional violence.
Eton College as with other elite public schools flogged their pupils unmercifully. Brutal beatings were not a secret. Many of those who went to Britain’s elite boarding schools followed their fathers there. In brief, parents knew exactly what their sons were going to face once left at the doors of the school. Eton College ritualised beatings. They used a specially constructed bench in order to flog the children, which was done on bare buttocks3. There was biblical authority for beating children
He who spares the rod hates his son, but he who loves him is careful to discipline him. (Proverbs 13:24)
This was compounded by the New Testament belief that children are born sinful. Christians felt it was their duty to beat their children so that they would grow up righteously.
There were no references to biblical authority for corporal punishment in the British Army or Royal Navy. Corporal punishment was so vicious as to be scarcely credible. The motive was control. Officers were inculcating blind obedience to their orders. This was especially important in combat when orders could look suicidal (and maybe were) to those who thought about them for a moment or two. Military discipline was designed to prevent anyone actually thinking about any order which was issued. Naval corporal punishment was even more severe than that in the army. Officers had the added fear of the men as they were confined on vessels and mutiny couldn’t be resisted by calling in reserves. Officers had an ever present fear of mutiny or, violent attacks from crew. Royal Navy ships were isolated communities and officers had to have complete security, which they felt was only achievable with ferocious discipline.
Keel hauling involved a sailor being tied and dragged beneath the keel of a wooden ship. The keel would definitely have barnacles and would have a very rough surface, which would slice through a the skin in salt water. Additionally the sailor would be half-drowned. Flogging round the fleet entailed a sailor being taken from ship to ship to be beaten on each ship of the fleet that was in harbour. The cat o’nine tails meant that each stroke of the whip inflicted nine lashes on the sailor, all of which was supplemented by routine kicks and blows inflicted during each ordinary day.
In 1807 the maximum corporal punishment for soldiers was reduced to a 1,000 lashes. This punishment could extend over a period of days as men were beaten ‘to within an inch of their life’. In 1828 two soldiers were given the maximum at Kilkenny Barracks, although exceptional, it was actually used on this occasion. Obviously, even if the punishment was spread over a number of days – to allow healing- the net outcome could well be permanent harm. Some soldiers awaiting their flogging suffered mental torture and cracked under the strain:
in the 15th Light Dragoons, then commanded by his royal highness the Duke of Cumberland, two private soldiers had, to avoid the punishment of flogging, put themselves to death, the one by drowning, and the other by cutting his throat5.
Officers were callous and extreme punishment so normal that they forgot social decencies. The most egregious example was perpetrated by the sadistic Earl of Cardigan. He totally lost his moral compass when he went as far as setting up a flogging trestle inside a church on a Sunday in 1841. This matter was raised in parliament where the point of discussion wasn’t the punishment but the desecration of the church on a Sunday. Although the army was separated from society by living in barracks and having their own code they were nonetheless still part of society as the Earl of Cardigan found6. Interestingly, there is in this debate a question of whether flogging actually served any purpose with the suppressed premise that men like Cardigan thrived because they were permitted to sate their vicious inclinations through manufactured ‘crimes’.
Britain was an imperial power who used overseas territories to exile criminals. The advantage was that criminals were exported faraway from Britain and therefore the solving the problem of recidivism. During the 18th and 19th centuries it was a firmly held belief that criminals were born and that nothing could be done to change their behaviour. (The same reasoning informed the savage beatings inflicted in schools, though teachers felt there was a possibility that natural sinfulness of children might be tamed.) Criminals were transported prior to 1776 to the Old Empire, that is the West Indies and north America. After that date Australia was the principal destination.
Transportation to the West Indies was reserved for those criminals whose death sentences were commuted to servitude. Britain was a very unsettled country between 1640 and 1746 with civil wars, invasion and rebellions punctuating the entire period. Aristocrats could expect no mercy if they failed, whereas foot soldiers were seen as dupes. A relatively small number of them were transported. The second Jacobite rebellion of 1745 was a severe test for the government. This was a very close call for King George II’s government and they responded with savage punishments7. Once in the West Indies those who were transported were treated as slaves. Psychologically this was even worse than it sounds as they were working alongside black slaves. Being reduced to slaves co-equal with black slaves was a further ‘punishment’ in a racist society. The problem with the West Indies was that convicts who were allocated manual work didn’t survive very long. This isn’t a humanitarian point. Employers taking on British indented labour knew they were taking on poor workers in comparison to their black slaves. Naturally they resisted and so the programme was ineffective.
Britain’s north American territories offered more opportunities. Instead of whipping or imprisonment, criminals could be sent to those colonies. There was a labour shortage in north America pre-1776, which wasn’t yet a slave based economy. As their economy developed and the middle-class expanded, they required more labour. About a quarter of pre-1776 British immigrants were convicts and this wasn’t greeted with any great enthusiasm. Transportation was a golden opportunity for the British. Criminals could be exiled for a determined sentence but they weren’t permitted to return. The American states were unenthusiastic about being a dumping ground for Britain’s criminal class but were over-ruled by King George II. Skilled men were in demand as indentured servants as they made a positive contribution to the society and once released they were often successful8. Unskilled criminals on the other hand were unsuitable for heavy manual work and in the southern states of America died fairly quickly as the climate was too hostile for them.
Britain’s population exploded once the industrial revolution decreased the death rate. The living-standards of the working classes improved with better hygiene, cheap clothing, a superior more balanced diet and housing. Between 1750 and 1900 the population increased from circa 7m to 40m. The increased population implies a larger criminal population even if the increase was pro rata. Fortuitously, Australia was discovered in 1770 immediately prior to the loss of the American colonies in 1776. The loss of one destination for British convicts was replaced with an even better option, the vast empty spaces of Australia. Australia had a further advantage. It was very much further away, making it only a remote possibility that transported convicts could return.
Transportation to Australia began in 1788 and ended in 1868. The mostly urban criminals who were transportated were totally unsuitable for the environment they were placed in. In the earliest period of Australia’s history most of their population were either military guards or convicts. However Australia quickly became a vent for Britain’s urban working classes. The tensions which had plagued the north American programme of transportation began again. ‘Decent’ British immigrants didn’t want large numbers of criminals dumped where they were trying to make a new life. In 1849 the British government responded by designating Western Australia a penal colony. In the eighty years of transportation Britain sent circa 164,000 convicts to Australia making it very much a pure colony insofar as only British people were living there9.
The crime which filled prisons prior to 1869 was debt. Debtors were incarcerated for indefinite sentences as they were imprisoned until they paid they off their debt. This is the ultimate Catch-22 situation. Fundamentally creditors made it impossible for debtors to pay their debts but kept them in prison until they paid up. Unamazingly those debtors without cooperative friends and relatives or, people who could be emotionally blackmailed, often spent decades in prison. The consequence was that half of all prisoners were debtors.
Charles Dickens wrote Little Dorrit about London’s largest debtor prison, the Marshalsea. He wrote from personal knowledge as his own father had been imprisoned there. Unlike ordinary prisons family members could come and go as they pleased. As a result children were born in prison and it became their home. Little Dorrit was a satire about the absurdities of imprisonment for debt. Britain had an undeveloped retail banking system, which created opportunities for money lenders and informal credit lines from shopkeepers, family and friends and investors. Unregulated, and with interest rates ranging from nothing to 100s of percentage points, falling into enormous debt was simplicity itself. Two hundred years prior to Little Dorrit, Shakespeare’s The Merchant of Venice had covered the same territory of money lenders and mountains of debt10. The scandal of debtors’ prisons was resolved with the 1869 Bankruptcy Act.
Prior to 1853 imprisonment was almost entirely used for short term prisoners. Prisoners were waiting for execution, transportation or flogging but they weren’t given long sentences. Consequently prisons weren’t well maintained and were in an appalling condition. Typhus was so prevalent in prisons that it was called Jail Fever.11 Imprisonment wasn’t supposed to be a death sentence but when extended over long periods the chances of survival were poor.
The Penal Servitude Act 1853 reduced the numbers of criminals sentenced to transportation, which was phased out in 1868. The thousands of criminals who had been exiled to Australia now had to be housed and controlled in prisons in Britain. Victorian prisons didn’t have people sitting in cells. They all incorporated Hard Labour of some kind or another. Hard labour might have an economic purpose or just a meaningless activity to punish. Victorians believed that the criminal classes could be improved by exposure to work. Work was done in silence12 so that they had the opportunity to reflect on their sins. The infamous treadmill typifies this mentality. As a punishment it was a soul destroying meaningless task with very hard ‘work’ indeed13. When it was a bone fide economic activity – grinding corn for example – it was meaningful hard work. Hard labour was harder than it seemed because prisoners were badly fed with insufficient calories to support the energy outputs necessary.
Prisoners were often flogged to keep them on task. Whipping was a normal part of the repertoire of prisons and was used throughout the 19th century. Where a person was sentenced to a whipping, this was usually part of the sentence which was followed by prison14. Prisons were hostile environments where the prisoners were controlled completely.
The early 19th century saw prison reformer Elizabeth Fry introduce rehabilitation as an objective for female prisoners. The appalling conditions that prisoners endured seemed worse when the women prisoners had childen who shared the incarceration. Most female prisoners were illiterate and unskilled in sewing and knitting, which were essential in early 19th century for women. Elizabeth Fry was a Quaker and her religion also informed her humanitarian principles. Her view of punishment was that it wasn’t for, “revenge but to lessen crime and reform the criminal.”15
Torture is the infliction of excruciating pain. Mental torture is also the infliction of excruciating pain through the knowing manipulation of an enforced inescapable environment. Mental torture is a powerful punishment. As we saw in the section on corporal punishment, soldiers anticipating hundreds of lashes committed suicide rather than submit, “two private soldiers had, to avoid the punishment of flogging, put themselves to death, the one by drowning, and the other by cutting his throat.” The anticipation was an unbearable torture. The physical sentence on the two soldiers, if inflicted, was additional torture. Military corporal punishment was reduced to 1,000 lashes in 1807 though it’s difficult to understand the reasoning underpinning that figure. It’s a possibility that a 1,000 lashes was chosen as a maximum because fewer soldiers were likely to be maimed or die under the whip but that’s speculation. The military were happy with torture in the 19th century and so were schools. Corporal punishment in schools had an additional sadistic twist. Those being flogged were children who were physically and mentally immature, meaning the impact was probably amplified.
There’s an unignorable interaction between physical and mental torture. The claim that torture had been phased out because it was barbaric relies on a very narrow historical definition. The paradigm appears to flow from an understanding of the medieval experience. If torture qua torture is the Spanish Inquisition, dungeons, being ‘hung, drawn and quartered’ and so on then torture didn’t exist in our period. Though the last burning at the stake was in 178817 and that punishment provoked an immediate parliamentry reaction banning it as a punishment. Burning at the stake was interpreted as wildly inappropriate and barbaric, having no place in late-18th century Britain. This punishment was done in public in London with the only mitigating factor being that the criminal was dead prior to being burned. And how did she feel immediately prior to her execution?
During the 19th century the default punishment became prison as transportation was phased out and the number of capital crimes was tapered to four. Obviously prison involves the loss of freedom and normal social life. This was insufficient for the Victorians. From 1818 prisons routinely used the treadmill both as a punishment and as part of the economic life of the prison. Either way the treadmill was so physically demanding and relentless for undernourished prisoners that it too was torture. It’s implausible to say the deliberate stresses of the treadmill fell short of the excruciating pain that the concept torture relies on. Prisoners were whipped to keep them on task and there were injuries if they failed to maintain the pace. The reality of the activity was remorseless intimidation. The generalised experience might not meet the core physical demand – excruciating pain – but some prisoners certainly felt that, especially women.
The use of silence as torture is problematic. There is no pain involved, just the extreme discomfort of being held in an unnatural environment. As mental torture it also fails the test. Yet there is unease in claiming that silence doesn’t inflict pain. Extended periods of voluntary silence are extremely challenging18 as silence thwarts normal human life. Imposed silence is worse. Imposed silence in a punitive, mal-nourished, hard labour environment with ferocious punishments institutionalises and crushes the spirit19 .
Throughout the period there was constant evolution in sentencing. The absolute normality of public execution in 1700 was challenged by the mid-19th century as an unseemly spectacle. In 1868 executions ceased to be public. Corporal punishment in the army ended in 1881, 74 years after the maximum sentence was reduced to a 1,000 lashes. Exile for non-capital offences peaked in the 1840s and was abolished in 1868 as part of the great penal reforming legislative process. Imprisonment became the default punishment after the abolition of execution as a generalised punishment. Abolition of transportation and the reduction in capital offences presented logistical challenges with a massive increase in the numbers of criminals now entering prison. This demanded huge investment in a prison building programme creating a network of local jails in centres of population. Linked with this was the abolition of one form of torture and the creation of another, namely the systematic destruction of prisoners physically and mentally. Punishment in 1900 was different in scope to that of 1700 but contemporaries would have been convinced that their punishments were both appropriate and proportionate.
* ADDENDUM Throughout British/Britain is used even though Scotland wasn’t part of the United Kingdom until 1707 and the island of Ireland in 1801. Much of the discussion is located in the English experience but many of those exiled were from Scotland after the Jacobite rebellion. The English experience dominates because England is the principal part of Britain in terms of population and wealth.
2 For a comprehensive list go to www.capitalpunishmentuk.org/timeline.html
3 For a photograph see https://www.art.co.uk/products/p12128936475-sa-i6276584/at-eton-college-a-flogging-block-sitting-in-the-lower-school.htm
4 For a longer discussion of this go to http://www.nmrn-portsmouth.org.uk/sites/default/files/Punishment.pdf For discussion of the famous Mutiny on the Bounty go to https://en.wikipedia.org/wiki/Mutiny_on_the_Bounty
6 The earl of Cardigan was forensically analysed in this debate and found to wanting in the qualities necessary of a gentleman and officer. Cardigan’s career didn’t suffer from this embarrassment as he became a major-general in 1853 and was partially responsible for the disastrous Charge of the Light Brigade during the Crimean War against Russia. http://hansard.millbanksystems.com/commons/1841/may/13/the-earl-of-cardigan
7 For a thorough discussion go to http://convictvoyages.org/expert-essays/caribbean
8 https://paleofuture.gizmodo.com/britain-sent-thousands-of-its-convicts-to-america-not-1707458418 Judges often made a calculation about the people in front of them and sentenced some to transportation if they believed that they would be rehabilitated. Transportation also reduced the numbers who were sentenced to whipping and prison. https://www.stratfordhall.org/educational-resources/teacher-resources/indentured-servants/
9 A good discussion is here http://www.migrationheritage.nsw.gov.au/exhibition/objectsthroughtime/order-ending-transportation-to-nsw/index.html A more general discussion is here http://waves.anmm.gov.au/Immigration-Stories/Immigration-history
10 Debtors prisons a Victorian source from 1838, James Grant focussing on the Marshalsea prison. http://www.victorianlondon.org/publications/sketchesinlondon-2.htm
11 If you want to read about typhus and why it was so common in prison https://medical-dictionary.thefreedictionary.com/Jail-fever There were similar living conditions on board ships with the same result https://sites.google.com/a/uconn.edu/klb14006/t
12 They were poor because they were feckless’ and therefore they should be taught not to be feckless by hard work in a grim environment in silence.
13 https://www.geriwalton.com/the-treadmill-for-punishmen/ see also http://vcp.e2bn.org/justice/page11362-types-of-punishment-hard-labour.html
14 https://www.corpun.com/counukj.htm This is an excellent summary of flogging complete with pictures of the equipment used- trestles, whips, cat o’nine tails.
15 Cresswell, Rachel E. and Fry, Katharine Memoir and Life of Elizabeth Fry 1848 For a comprehensive list of crimes for which females were transported go to https://www.femaleconvicts.org.au/docs/seminars/CrimesOfTransportation_TrudyCowley.pdf
Elizabeth Fry also had an impact on transportation where women were very much better treated than men. https://en.wikipedia.org/wiki/Convict_women_in_Australia
16 For an excellent discussion of torture in a modern setting with the justifications used by police forces see https://plato.stanford.edu/entries/torture/notes.html#note-1
The main article is very philosophical though written in an accessible way https://plato.stanford.edu/entries/torture/ Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder https://plato.stanford.edu/entries/torture/#WhatInheWronTort
19 Oscar Wilde’s poem is an astonishing insight into Victorian prisons and is wonderful poetry as well https://www.poets.org/poetsorg/poem/ballad-reading-gaol French philosopher Michel Foucault wrote that prison was part of the mechanism of ‘keeping the masses quiet’ or generalised social control. A quick Wikipedia article is a good introduction https://en.wikipedia.org/wiki/Discipline_and_Punish