Introduction:
The purpose of this assignment is to consider the different ways in which punishment and society changed throughout the period 1750-1868. The essay will critically analyse and explain how punishment methods changed and the reasoning behind them changing. It will also be comparing the punishment methods from the early 18th and 19th century to the punishment methods that still stand in today’s 21st century society. Firstly, an explanation into the corporal punishment methods in the early 18th century, what they were and how they contributed to the changing of punishment methods. Followed an in-depth critical analysis of the forms of capital punishment and how they changed society’s views on the way people were punished. Following on from this, looking at Transportation as a form of punishment, the ideology behind this and how this affected punishment methods. Lastly, the essay will look at the growth of imprisonment and how prisons have changed over the centuries.
Corporal Punishment:
Throughout the 18th century, Corporal punishment was immediate, painful, and the idea behind it was for retributive purposes. However, sometimes the punishment sentenced often left a visible reminder of the offenders’ wrongdoings.
Branding was a punishment which involved branding with a letter, this left a very visible mark of either ‘T’ if you were a thief, ‘F’ if you were a Felon and an ‘M’ if you were a murderer. Transgressors were originally branded on the forehead, then the cheek and then the left hand, Cox,D.J (2014). Cox (2014), Affirms in 1707 branding on the forehead and cheek was discontinued and moved to the left hand. This was done as it was indisputable that branding on the forehead or cheek prevented offenders from gaining employment, this therefore meant that if prior offenders could not gain employment then they had no choice but to turn to a life of continued crime. Branding as a form of corporal punishment was withdrawn in 1823.
Another form of corporal punishment was The Pillory. It was made up of a wooden framework with holes, where the offenders’ arms and head would go through. The framework would then be secured in order to prevent the offender from fleeing. “The Gallows and the pillory were to provide lessons and warnings for other would be transgressors of the law”(Emsley,C 2017. P.272). Although the pillory did not do any harm apart from being uncomfortable it was actually the humiliation and shame that it brought, along with the crowd that it attracted. Crowds would gather in order to throw tomatoes, dead animals and it was in fact that which caused the damage. If the courts wanted to make the pillory punishment worse, then would also incorporate some flogging or even nail your ear down. Cox,D.J (2014) expands on the Pillory Aboliation Act 1816, this meant that the pillory was in use as a corporal punishment until 1817, however it still stood as a punishment for perjury or subornation up until 1837 when it was completely abolished.
Flogging, was also used as a punishment in order to bring humiliation towards the offender. This was done to set an example to society that this could happen to you! Flogging consisted of the offender, male or female being stripped to the waist and publicly whipped. This was more shameful for women as opposed men as a woman’s chest is perceived more private than a man’s. The most common form of flogging was where the offender was tied to a cart and then pulled through crowds to make a show out of them,Cox,D.J (2014). Women were not publicly whipped after 1817.However men, were still publicly chastised up until 1862, however it was rare for publicly whipping to be carried out after 1830, making this one of the last corporal punishments to be abolished, Cox,D.J (2014).
Similar to the pillory, the stocks were another form of punishment. Like most other corporal punishments, the stocks were again only used for petty offenders as opposed serious felons, as the main punishment was not a fatality, but was to maximise the shame on the offender. Throughout the 18th century the stocks were commonly used for punishments and some offenders did lose their life in them, however within today’s society they are often used within museums as a figure of fun, Cox(2014).
Capital Punishment and ‘The Bloody Code’:
During the Age of Enlightenment, many philosophers and activists began to voice their views. Many argued that individuals are not inherently bad, that they are influenced by the environment in which they live. John Locke argued this throughout his theory of ‘Tabula Rosa’. Beccaria believed that capital punishment should not be the punishment for the majority of offences as the proportionality of it in comparison to the offence is too severe,”The death penalty should not be prescribed except in the case of absolute necessity, and I the peaceful circumstances of our society” (Beccaria,C 2009 P.154)
Throughout the 18th and early 19th century there was a change from the imposition of corporal punishment to more severe capital punishments. “In 1723 Parliament passed, almost without debate, an act which created at a blow some fifty new capital offences”(Gray,D.D 2016 p.282). This act was known as the ‘Waltham Black Act’. After the passing of this act, this meant that there were around 200 offences punishable by death. Offences such as stealing horses, horses were a form of transport especially for the wealthy, destroying turnpike roads, cutting down trees, as the wood was used to build naval ships therefore this was frowned upon, arson,etc. This was later referred to as ‘The Bloody Code’. “It largely accepted the case argued by eighteenth century and nineteenth century reformers that ‘the bloody code’ was arbitrary and savage”(Ensley,C P.261).Up until 1783, defendants that were sentenced to death were hanged at Tyburn, this is now famously known as marble arch. In 1783 public hangings were moved to Newgate Gaol and the method of ‘The sharp drop’ was introduced.(Old Bailey 2018). It was understood that newspapers would promote the execution of a defendant and therefore thousands of people would gather in the crowd. Offenders had no right for appeal, as they had 48 hours after they were sentenced to their execution, except if it was a Sunday then it would be 72 hours.
Beattie (2002), explores that it was evident that the sole purpose behind all capital punishments were too prevent crime from occurring and scaring other members of society into abiding by the laws. Douglas Hay, a Marxist strongly believed that the laws in which were punishable by death were in fact mostly property laws, by this idea it meant that they were all concerned with authority and the protection of property. Throughout his influential chapter in Albion’s fatal flaws(1975), Hay (1975), explored the ways in which this was carried out, and concluded that it was the wealthy people making the laws ,they made sure that they made laws that protected solely their interests. So therefore, it was argued that punishment methods changed in the early 18th century due to the rich wanting to protect their property. However, many theorists such as John Langbein(1975) have heavily criticised Hays theory. Langbein(1975) in his chapter of ‘Albion’s Fatal Flaws 1975’ claimed that the law was for everybody not just the upper class, “The whole of the criminal justice system, especially the prosecutorial system, was primarily designed to protect the people”(Langbein,J 1975, P.105).
As there were so many crimes now punishable by death, many jurors often committed what is known as ‘Pious Perjury’, this was where they would deliberately underestimate the offence in order for the offender to avoid death. Many MP’S such as Sir Sammuel Romilly started to campaign against punishment methods, in 1810 he claimed, “There is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as In England”(Romilly,S. 1810,p.3)
Posthumous Punishment:
Britain during the early eighteenth and nineteenth century people were very religious, so to not be buried into Christian ground it was believed acted as a deterrent. Cox(2014). It was evident that punishment did not end after offenders received the death penalty, this was shown through Gibbeting. Gibbeting irons caged the corpse and were stood around 20ft high, and were covered in studded nails in order to prevent the offender’s family or friends from cutting down the corpse. The 1752 murder act brought this into place, believing that if they increased the terror and humiliation of capital punishment, it would increase the deterrent (Old Bailey 2018). Gibberting the corpse was done to set an example of the offender,however it didn’t just bring shame upon the offender, it also brought shame upon their family and friends. Anatomical Dissection was another terrifying posthumous punishment. This involved the offender’s corpse going to surgeons and being dissected, as they didn’t have a lot of knowledge about the human body, Cox(2014). “Anatomical dissection in itself was a most feared and reviled posthumous punishment”(Cox,D.J 2014 P.109).
Transportation:
In 1718 the Transportation Act was introduced, this acted as a different form of punishment for offenders which was used in opposition to the death penalty. Transportation was introduced as many people believed that execution was too harsh and used too widely. Even though the transportation act was introduced in 1718, transportation had actually been happening since the sixteenth century. Ekrich (2011), explains that in 1615 it was authorized by James I and parliament granted magistrates the authority to send felons across to American colonies.
Transportation occurred in order to get rid of the ‘Dregs of society’. “The hope and expectation that men who had lost their characters in England might well become productive citizens in a new society” (Beattie,J.M. 2002 p.473) .On average the sentence for transported convicts varied from 7 years, 14 years and life. The most common offence for transportation was grand larceny, however there was also a lot of felons transported for serious crimes Ekrich(2011). After the transportation act was passed, it was evident that juries were more reluctant to use the death penalty as transportation seemed a good alternative.”From 1718 to 1769, more than two thirds of all Old Bailey felons 69.5% were banished to America” (Ekrich,A.R 2011. P.21). The hulks were massively overpopulated and riddled with disease, which meant that the death rate was extremely high. “out of 502 who were placed on the Neptune in 1790 for conveyance to Australia 158 died on the voyage”(Gillespie,J.E 1922 P.362). Once the felons arrived in America, they faced either imprisonment or forced labour,Gillespie(1922). Convicts were providing and improving British colonies with good and cheap labour, it worked out at around several pounds per convict, Gillespie (1922). In 1775 the American War of independence declared that America no longer wanted to receive British convicts as they wanted their own legal system and different laws, which is still the case in today’s 21st century.This meant that men had to be detained in Hulks where they had to undergo Hard labour and women were imprisoned until the government decided where to send them(Old Bailey 2018). In 1770 Captain James Cook claimed Australia for Britain, as ‘Terra Nullius’ so Britain began sending convicts to Australia. “Skilled urban,rural and construction workers were largely matched to the same types of jobs in new south wales”(Nicholas,S 1988 p.10). In order to encourage convicts to not re-offend, ‘Tickets of Leave’ were granted. This meant that if they had good behaviour then they could be released from hard labour conditionally. This was introduced by Governor Brisbane, who established that if the convict had good conduct, then his sentence could be shortened , Gillespie(1922). British Government believed that the means of transportation would act as a deterrent as it meant that the individual would be taken away from their normal life, however it was clear that this was not the case as “Voluntary emigrants were hastening as to a land of promise”(Gillespie,J.E. 1922, p.366) Also Hughes(1986) explores how half the population was ex-convicts. Transportation as a form of punishment was no longer successful. The rising cost of transportation also meant that it could no longer happen. In 1851, Australia discovered Gold in Bathurst, New south wales and started to become their own colony.
In 1853, punishment methods changed as the sentence of transportation was replaced by ‘Penal Servitude’. The Penal Servitude act of 1853 and 1857, meant that any convicts who would have been sentenced transportation were now sentenced to years of penal servitude. Penal Servitude often consisted of hard labour such as building roads and other public labour and imprisonment in prisons such as Parkhurst, (Old Bailey 2018).
Prisons:
During the seventeenth and early eighteenth century, Britain had no police force therefore this made it hard when trying to resolve crime. In 1749, Henry Fielding established what was known as the ‘Bow street runners’ Beattie (2012). They carried out “investigating offences,catching and prosecuting felons and in some circumstances preventing felonies from occurring”(Beattie,J.M, 2012 P.29).
To begin with Gaols were not used to rehabilitate an offender, they were used to hold convicts whilst they may be awaiting transportation,trial, execution, and for debtors, Cox(2014). Cox (2014) explains that the idea for prisons to be used for punishment was dismissed as it was thought of to be too expensive, and it was not until the nineteenth century when prison reform started to take place. In 1777, influencer John Howard published a book ‘The state of prison 1777’. Howard proposed ideas for reforming prisons that had been massively neglected and were over run by disease, his idea was “turning them into institutions for the conditioning of men and women who must be changed”(Cornish,W.R et all 1989. P.570).Also, Elizabeth Fry impacted on prison reform.
The Howard league which is for penal form, is still influential in today’s society (BBC 2018). In the nineteenth century, when people started to realise that prisons could be used as a form of punishment they wanted it to be more than just imprisonment.“walking a treadwheel or picking oakhum were the most common forms of hard labour” (National Archives 2018). However, some convicts were made to do productive labour such as clear rocks on fields and smash them in order to build roads.
Philosopher Jeremy Bentham also played a role in the way punishment methods changed. He did this through his work on prisons and his idea of the ‘Panopticon’. Bentham’s Utilitarian approach influenced many philosophers such as Romilly, Brougham and peel in regard to penal reform, Hosstler(2009). Bentham argued that crime and punishment modify depending on time and place, this is evident from looking at the 21st century where drugs like heroin are illegal, but was not back in the 18th century. Bentham’s ideology behind his ‘Panopticon’ was a “Circular iron and glass cage of open cells, the governor would be able to see each prisoner without them seeing him” (Hossttler,J. 2009, P.161).However, even though the Government accepted Bentham’s idea for this prison, it was never proposed, as it was deemed too expensive and impractical. The impracticality of it was shown in the Presidio Modelo 1926, built in Cuba. “Bentham saw the panopticon as a civilising influence on society”(Hossttler,J.2009,P.161). James,(2013) explores one of Britain’s first prisons. Dartmoor was opened in 1809 and was used to house French and American naval prisoners, it was then closed in 1820 after the Napoleonic wars, and re-opened then in 1850 as a convict prison.
Juveniles and Gender:
“Many juvenile offenders transported from Britain to Van Diemen’s Land in the 1830s spent time in the juvenile specific penal station, Point Puer. Here they were subjected to a reform ideology”(Shore,H 2002). Shore(2011) explores the start of the Juvenile justice system within Britain. This start to form in the mid 19th century, which started to move juveniles out of the adult prisons. Many legislations took place, which changed the way in with juveniles were punished within Britain. “The youthful offenders act of 1854 allowed for the certification of voluntary reformatory schools. The Industrial schools act followed in 1857” (Shore,H. 2011, Page 2). Shore in detail explains how Prisons such as Parkhurst, after the Parkhurst act 1838 balanced punishment with reformation, however this was only short term. Cox (2014, explores how punishment and society was unfair, he examines how the law and punishment was detrimental towards women. “women in particular were often at a considerable disadvantage both as complaints/victims and offenders”(COX,D.J 2014. P.144). This is the idea of Double Deviance, where it is more socially accepted for men to commit crimes than women, as it should not be in their nature.
Conclusion:
Throughout the period of 1750-1868 forms of punishment went through various changes. It escalated from a very corporal and extreme capital approach to punishment, to a rehabilitative approach, which is similar to today’s 21st century punishment. Punishment throughout 1750-1868, changed drastically as the crime levels increased people were not sure what to do about it. However, during the late 19th century people’s attitudes towards punishment changed, it became more about rehabilitating the offender as apposed retribution. Furthermore, the legacy of shaming the offender still stands in today’s 21st century, this is done through newspapers, and sentences such as community service.