25/04/2004
History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789G. B. Barton - 1889
PART I
Crime and Punishment in the Eighteenth Century
TO understand the principles on which the criminal laws were administered by the Judge-Advocate's Court during the early years of the colony, it is necessary to recollect what those laws were in England throughout the same period. The progress of reform during the present century has brought about so many and such radical changes in the administration of justice, that we are apt to look back upon the proceedings of the Judge-Advocate's Court as if they formed an abnormal and unsightly excrescence on the fair body of English jurisprudence. Apart from the summary method in which the business of the Court was transacted, the want of all proportion between crime and its punishment seems in most access to have been so excessive, that the severity of the law is usually attributed to the personal disposition of those who administered it. They have been regarded as the originators of a system under which all notions of justice and humanity were carefully excluded from view when an offender was brought up for trial; as if the infliction of some brutal punishment for its own sake was the sole aim and end of their proceedings. The cruel tortures of the lash are supposed to have been recklessly inflicted, and the hangman's rope to have been brought into requisition with almost as little scruple as the dreaded scourge.
The fact is, however, that the founders of the colony were hardly more responsible for the severity of the law than they were for the conditions of the atmosphere they had to breathe. The criminal laws which they brought with them from England had been put on board their ships, so to speak, like the salt pork and the weevilly flour; and they had to make the best of them. But as they were, they were still the laws of England, and the punishments which they entailed on offenders were not - as they often appear to be - the inventions of malignant gaolers, but the deliberate judgment of the Legislature. Long after Phillip had retired from the scene of his struggles, the laws which imposed the terrible sentences then in vogue remained in force in England. It was a capital offence, for instance, to pick a pocket - technically called "stealing privately from the person;" a capital offence to steal privately in a shop goods to the value of five shillings; to steal goods to the amount of forty shillings in a dwelling-house or on a navigable river; to steal linen from a bleaching-ground; to break and enter a dwelling-house; to steal a letter; to steal a horse, an ox, or a sheep; to be found begging, if a soldier or a sailor; to return to England after having been transported, if the term had not expired; to destroy any tree, plant, or shrub in a garden; to hunt any deer unlawfully; to appear armed, or with the face blacked or otherwise disguised, in any forest, warren, or place where hares or rabbits were usually kept, or on any high ground, open heath, or common. The great number of offences of this description which had been declared to be capital felonies seems to have astonished even Blackstone, who loved to extol the humanity of the laws of England. He pointed out in 1769 that "among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by Act of Parliament to be felonies without benefit of clergy (1)."
To realise the state of mind in which Phillip looked at the question of crime and punishment, we have only to picture to ourselves the scenes with which he had become familiar during his career in England, before he took command of the Expedition. From 1775, when he entered the navy, to 1787, when he sailed with the First Fleet, the criminal system of the last century may be said to have been in full bloom; and although most of Phillip's time was passed at sea, his visits to England, to say nothing of his residence in the New Forest as a country gentleman, gave him opportunities enough for seeing those peculiar spectacles which justified Charles Knight in describing London at that time as "the City of the Gallows." In going up the Thames, for instance, the traveller would probably see the gibbet standing on its banks, with the remains of mutineers, or persons who had committed murder on the high seas, hanging from them in chains (2). One of the docks in London was called Execution Dock, because criminals of that class were usually condemned to suffer there. After they had been hanged, their bodied were cut down and removed to the gibbets on the banks of the Thames, where they were left to hang in chains. If he entered London by Oxford-street, Tyburn tree would certainly attract his attention, especially when ten or twelve criminals were about to suffer in the presence of a crowd of people gathered round it, indulging themselves in the sports and pastimes usual on such occasions (3). If he passed over any of the heaths, commons, or forests which then surrounded London - say Blackheath, Wimbledon, or Finchley Common - a gibbet with a highwayman hanging in chains would probably form a conspicuous feature of the landscape. Even in the crowded streets of the city, he might have seen the gallows standing with its dreadful pendant (4). In 1786, a scaffold was erected opposite a house in Charlotte-street, Rathbone Place, formerly inhabited by an attorney who had been murdered in it. The murderer was hanged in front of it, according to the prevalent custom of inflicting punishment on the spot where the crime had been committed. Seven years afterwards, a burglar was ordered for execution in Hatton Garden, near the house he had robbed ; but having escaped execution by suicide, his body was exhibited in the neighbourhood, " extended upon a plank on the top of an open cart, in his clothes and fettered (5)." This, perhaps the most loathsome practice of the time, continued for many years afterwards. A similar case occurred in 1811, when the cart containing the suicide's body was preceded by a long procession composed of constables who cleared the way with their staves, a newly organised horse patrol with drawn swords, parish and peace officers, and the high constable of the county of Middlesex on horseback (6). After the Lord George Gordon riots of 1780, the gallows was carried about from street to street of the city, and the condemned men were hanged on the spot pointed out by the witnesses as the scene of their outrages.
During the year in which Phillip sailed with the First Executions Fleet, the number of persons executed in England was one hundred and one; crime at that time having apparently risen to its highest level. In the twelve years between 1771 and 1783, no less than four hundred and sixty-seven persons were hanged in London and Middlesex - an average of rather less than forty per annum. During the twenty-three years from 1749 to 1772, the number of persons condemned to death at the Old Bailey was one thousand one hundred and twenty-one, of whom six hundred and seventy-eight suffered death - a yearly average of less than thirty (7). These figures relate to London only; they do not include the cases in the country towns to which the Judges went on circuit at the Assizes. Executions were, comparatively, almost as common in the country as they were in the metropolis. The Lent Assizes of 1785 were followed by nine at Kingston, nine at Lincoln, and nine at Gloucester, seven at Warwick, six at Exeter, six at Winchester, and six at Salisbury, five at Shrewsbury, and so on all over the country. The total number of capital sentences in England for that year was two hundred and forty-two, out of which there were one hundred and three executions (8).
London itself stood without a rival among all the capital cities of Europe in its display of public executions, just as it did in the abominations of prison life. The contrast between the criminal laws of England and those of other countries in Europe may be seen in the facts mentioned by Howard. When in Amsterdam on his tour of inquiry among the prisons of Europe, he found that during the eight years before his arrival there in 1783, only five criminals had been executed out of a population of two hundred and fifty thousand - about one-third of that of London (9). In all the seven provinces which constituted the Dutch Republic, there were seldom more than five or six executions in the course of a year. These statistics are quite enough to justify Sir James FitzStephen's statement that the English people during the last century were, as a rule, "singularly reckless about taking human life (10)." Many allusions to this peculiar characteristic of the nation might be quoted from the literature of the last century. Sheridan illustrated it with his usual point when he asked, during the debate on a bill making it capital to destroy any tree, shrub, or plant in a garden - "was it under the pretence of protecting nursery grounds that they proposed to make it felony in a schoolboy to rob an orchard, or was it contended that gooseberry bushes ought to be fenced round with gibbets ? "
It was to this recklessness about taking human life that the practice of duelling owed its popularity throughout the same period. The laws made to prevent it were evaded, the Courts winked at it when they could, and the opinion of Parliament - no doubt in harmony with that of society - seemed to be rather in its favour than otherwise. In the course of a debate in the House of Commons on the duel between the Earl of Shelburne and Mr. Fullarton in 1780, one member asked :-
Did the honorable gentleman think that any order or resolution of the House, that any Act of the Legislature, could prevent a gentleman going out, as it was termed, with another, if he felt his honor injured? Had gentlemen so soon forgot that there were Acts of Parliament against duelling now in being? The very attempt to prevent one man fighting with another was absurd, because it was impossible, by any regulation of Parliament, to prevent it.
To which Burke replied that the right honorable gentleman could not surely imagine that he was so absurd as to attempt to make laws for the restraint of the human feelings and passions (11). He, therefore, saw nothing particularly reprehensible in the practice; for either he had nothing to say against it, or he thought it prudent to refrain from expressing his opinion. Pitt and Pox each fought his duel.
There were other exhibitions of human suffering to be seen in Phillip's time even more horrible than that of men hanging from the scaffold in public places. The old law under which women were burned as well as hanged for petit treason - that is, for killing a husband or a master, or for coining - was not abolished till 1789. In the year before, it was put in force against a woman convicted of coining; but out of consideration for her sex, she was first strangled and then burned. Having been tied by the neck to an iron bolt fixed near the top of the stake, the steps on which she stood were drawn away and she was left hanging; a chain attached to the stake was then fastened round her body; two cartloads of wood were piled about her, and after she had hung for half an hour the fire was kindled. The flames soon burned the halter, when the body fell a few inches and hung by the iron chain. This scene took place in front of Newgate Gaol, in the presence of the usual crowd. Other executions of the same kind took place in 1767, 1750, and 1726. In the last case the woman was burned alive. " The fire reaching the hangman's hands, he let go the rope by which she was to have been strangled, and the flames slowly consumed her as she pushed the blazing faggots from her, rending the air with her agonised cries (12)."
These were not the only cruel forms of punishment to which women were subjected during the same period. They were frequently ordered to be flogged or whipped, sometimes at the cart's tail in public, and sometimes in prison. In 1764, for instance, a woman was three times conveyed in a cart from Clerkenwell Bridewell to Enfield, and publicly whipped at the cart's tail by the common hangman. The offence for which she suffered was " cutting down and destroying wood in Enfield Chase" - probably to light her fire (13). Women were not only whipped by order of Court for the offences they had committed, but they were punished in the same manner while in prison at the discretion of the authorities. A whipping-post was set up in every prison yard, and they were mercilessly castigated at it for neglect of duty or insubordination; the punishment being inflicted on their bare backs. This form of punishment lasted till 1820.
Female offenders seem to have been treated with quite as much severity as the men, if not with more; they were not only burned as well as hanged, not only flogged in public as well as in private, but they were heavily ironed and often left in gaol without clothes enough to preserve common decency. Phillip's letters describe the condition of the women put on board the transports in 1787 as disgusting; they were very filthy and almost naked; and notwithstanding his repeated requests for clothing, they were allowed to sail without it - a neglect which seems to have been quite in keeping with official practice long after the sailing of the First Fleet. When Mrs. Fry began her visits to the female prisoners in Newgate in 1813, she found them all in the state described by Phillip. Even before they were lodged in gaol, they were shamefully neglected and ill-treated.
Many were brought to the prison almost without clothes. If coming from a distance, as in the case of convicts lodged in Newgate until embarkation, they were almost invariably ironed, and often cruelly so. One lady saw the female prisoners from Lancaster Castle arrive, not merely handcuffed, but with heavy irons on their legs, which had caused swelling and inflammation. Others wore iron hoops round their legs and arms, and were chained to each other. On the journey, these poor souls could not get up or down from the coach without the whole of them being dragged together (14).
If this was the manner in which females were treated in 1813, it is safe to infer that they did not meet with more consideration in 1787. The women put on board the First Fleet had no doubt been dragged about the country in irons from the time they left the gaols till they were delivered on board the ships at Portsmouth.
The practice of putting prisoners of both sexes in irons, even before their trial, had been long established, although it was known to be illegal - so far at least as concerned persons awaiting trial (15). The only excuse that could be offered for it was, that it was difficult to prevent the escape of prisoners, unless they were loaded with clanking irons, owing to the insecurity of the buildings in which they were confined. This cruelty was not only practised in the case of persons actually in gaol, but those who were on their way to it were subjected to the same hardship. There were no police vans or any other vehicles of the kind to convey them from Court to prison; they were marched through the streets in gangs, handcuffed to one another, or linked to a long chain, men and women alike. Anyone who had money to pay for a vehicle might have one, provided the escort warder thought fit to make such a concession, or was honest enough to get the vehicle after receiving the money. Prison vans did not come into use until 1827, when " caravans," as they were called, were introduced (16).
Flogging was a popular form of punishment from very early times in England. It was freely administered to all kinds of petty offenders - thieves, prostitutes, street brawlers, rogues and vagabonds; the punishment taking place sometimes in public and sometimes in the gaols. When it took place in public the offender was tied to a cart's tail and flogged through the streets, or at the market-place. In the time of Elizabeth, the whipping-post was an established institution in every town and village. The municipal records contain frequent allusions to the practice. The fee paid to the officer of justice was usually fourpence in each case. Sometimes women were employed to whip offenders of their own sex. By an Act passed in the reign of Elizabeth, every vagabond was to be publicly whipped and then sent to the parish where he was born; and the law remained in force till the reign of Anne. The poet Cowper, in one of his letters, describes the flogging of a young thief through the town of Olney. In London, the principal places for punishment of this description appear to have been the Bridewells, or houses of correction. The spectacle was open to the public and was largely attended by sightseers. De Foe has described the scene with characteristic force in his Life of Colonel Jack. According to the practice of the time, the men and women taken into custody by the watch were brought before the magistrates and usually committed to Bridewell. They were then brought before the Court of Governors on their usual sitting day; the offence in each case was stated by the beadles, and the Court gave its decision, generally to the effect that the offenders should be corrected on the spot. The beadles at once prepared the culprits for punishment by stripping their clothes off, and the flogging was administered until the president thought proper to stop it, which he did by rapping with a hammer on the table. At the close of this ceremony, the prisoners were handed over to the officials to pass the term of their imprisonment in beating hemp (17).
The practice of flogging in the army and navy was carried to an extreme in Phillip's time which seems incredible in the present day. The most notorious instance of excessive punishment will be found in the trial of Governor Wall, who was executed in 1802 for having caused the death of a sergeant named Armstrong at Goree, an island off the African coast, twenty years previously. According to the statement made by the Attorney-General at the trial, Armstrong's offence consisted in his having gone with several other soldiers to the paymaster's house for a settlement of their claims. Although he was not guilty of any mutinous or disrespectful conduct, Wall, who was commandant of the garrison, without any form of trial or inquiry, ordered him to be punished with eight hundred lashes, and personally superintended the flogging. The unfortunate man was stripped and tied to a gun-carriage, and two black men were employed to flog him with a rope one inch in diameter. He died in hospital five days afterwards (18).
Although there was no doubt that Wall deserved punishment, there was at least one consideration that might have been urged in support of his plea for mercy. He was the victim of a vicious system which had established itself in the army and navy, under which it had become a common practice among commanders in both services to inflict punishment on their own authority, without the intervention of any Court-martial. Romilly mentions a case which was brought before the Privy Council while he was Solicitor-General in Fox's administration of 1806. A lieutenant in the navy was charged with the murder of three seamen at Bombay in the year 1801. They had been flogged without any Court-martial having been held on them; and the punishment was inflicted with such horrible severity that they all three died in less than twenty-four hours after it was over. In the course of the examination before the Council, it appeared that it was not uncommon for officers of the navy to inflict very severe punishment on their own authority, without any Court-martial; their idea being that it was lawful to do so (19).
Two other instances are mentioned by Romilly which seem to have originated in the same spirit of reckless indifference to results. One was that of a soldier at Gibraltar " whose only offence was that he had come dirty upon the parade," and who was thereupon flogged with such severity that he died a few days afterwards. In the other case, a man who had been thirty years in the Guards, and who had been removed into the veteran battalion in the Tower as a reward for his good conduct throughout that time, was sentenced at the age of sixty to receive three hundred lashes, " because he had been absent a day " from duty (20). Romilly does not state that these punishments were inflicted without trial, but a charge of "appearing dirty on parade" would seem to be rather beneath the dignity of a military Court. The Courts-martial of the flogging days, however, did not stand much upon their dignity in these matters. Any breach of discipline, however slight, was sufficient to set the law in motion. In 1792., a sergeant named Grant was sentenced to one thousand lashes for having enlisted two drummers of the Coldstream Guards into the East India Company's service. And in 1832, a private in the Scots Greys was tried and sentenced to two hundred lashes " for highly unsoldierlike conduct in dismounting without leave, when taking his lesson in the riding-school, and absolutely refusing to remount his horse when ordered to do so." Many other instances of the same kind might be quoted.
The manner in which this form of punishment was administered in the army is forcibly described by Sir Charles Napier. Referring to the time when he was a subaltern, he says:-
I then frequently saw six hundred, seven hundred, eight hundred, nine hundred, and a thousand lashes sentenced by regimental Courts-martial; and generally every lash inflicted. I have heard of twelve hundred having been inflicted, but never witnessed such an execution. Even a General Court-martial cannot do this now. Its sentence cannot exceed two hundred lashes. I then often saw the unhappy victim of such barbarous work brought out from the hospital three and four times to receive the remainder of his punishment, too severe to be borne without danger of death at one flogging ; and sometimes I have witnessed this prolonged torture applied for the avowed purpose of adding to its severity. On these occasions it was terrible to see the new tender skin of the scarcely healed back again laid bare to receive the lash. I declare that, accustomed as I was to such scenes, I could not on these occasions bear to look at the first blows: the feeling of horror which ran through the ranks was evident, and all soldiers know the frequent faintings that take place among recruits when they first see a soldier flogged.
Some commanders appear to have studied flogging as an art, with a view to the infliction of the greatest possible torture on the victim :-
I have heard, and I have no doubt of the fact because it was generally talked of and admitted to be so, though I never saw it, that there were commanding officers who distributed the lashes from the poll of the neck to the heel; thus flaying the shoulders, posteriors, thighs, and calves of the legs, multiplying the torment enormously ; but I believe it was done, and legally, too, according to the wording of the sentence which ordered or permitted such cruelty.
But even artistic flogging was effective only up to a certain point :-
I have seen many hundreds of men flogged, and have always observed that when the skin is thoroughly cut up, or flayed off, the great pain subsides. Men are frequently convulsed and screaming during the time they receive from one lash to three hundred lashes, and they bear the remainder, even to eight hundred or a thousand lashes without a groan ; they will often lie as if without life, and the drummers appear to be flogging a lump of dead raw flesh (21).
Bad as matters were in the army, they were even worse in the navy. The captain of a ship afloat was practically judge and jury in all cases; public opinion rarely or never reached him, and he was consequently under no restraint in the exercise of his powers; while the prospect of obtaining redress by complaint to the Admiralty was too remote in those days to afford any protection to the men under his command. But that was not all:-
One lash in the navy was considered equivalent in severity to several in the army; and although the lashes were numbered by dozens instead of hundreds, twelve stripes afloat were fully equal to a hundred on shore. This was partly owing to the make and material of the cat, and also to the mode of flogging. The naval cat was altogether more formidable than the military one, being made out of a piece of rope thicker than a man's wrist, five feet in length all over, three of which were stiff and solid stuff, and the remaining two feet ravelled into hard twisted and knotted ends (22).
The sentence of a Court-martial was not considered a necessary preliminary to the use of the cat on board a man-of-war. There may be some exaggeration in the stories told by Marryat on the subject; but if his narratives were not always founded on fact, his descriptions were drawn from his own experience during the years he was at sea. The story of the captain of an eighteen-gun brig ordering five dozen, lashes to be given to a seaman for spitting on the quarterdeck, may be a humourous invention; but it is nevertheless a good illustration of the manner in which punishment was usually administered in the navy at that period. It was inflicted not only by the captains and superior officers, but by the boatswain and boatswain's mates, who carried rattans or rope's ends to quicken the movements of the men. The practice continued for many years after the close of the last century. The agitation in Parliament for its abolition began in 1811; but it was not until 1859 that corporal punishment in the navy was restricted to cases of insubordination or other serious offences, established before a Court of inquiry held by a captain and two lieutenants (23). The results of the abolition form an unanswerable argument in favor of the reform. At no time in the history of the army and navy was discipline better than it is in the present day, when flogging is never heard of; a fact which justifies the conclusion that discipline might have been maintained in both services throughout the whole of the flogging period without any recourse to that method of correction.
The temper of the age with respect to the question of crime and its punishment may perhaps be best understood by reviewing the efforts made to reform the existing system. During the eighteenth century no serious or systematic effort was made for that purpose; it is doubtful, indeed, whether the House of Commons would have listened to any proposals of the kind. The Lords would certainly have rejected them as summarily as they would have negatived a motion to extend the franchise to the working classes, or a bill to abolish the penal laws against the Roman Catholics. The political speeches and memoirs of the time are curiously silent on the subject. No member of either House had ventured to take up the question as Romilly took it up in later years. Not one of the many great speeches delivered by Burke, Fox, Pitt, and Sheridan was devoted to the question. While boys were frequently hanged in rows for offences for which they would now be sent to reformatories, the great statesmen and orators of the day looked on in silence. They appear to have taken little or no interest in social problems, partly because such questions were lost sight of in the greater attractions of foreign affairs, culminating at one time in the war of American Independence, and at another in the French Revolution; and partly because politicians had not then learned to look upon the reform of social evils as of paramount importance to the welfare of the nation. During Pitt's eighteen years of office he might have effected any changes in the administration of justice he pleased; but he left it as he found it, not having effected, or even sought to effect, any material changes in it whatever.
No statesman of the day was better qualified than Burke to deal with such a subject; he had not only studied juris-prudence, but he had an instinctive perception of its principles; and yet in the whole circuit of his studies there is no evidence that he had devoted any serious attention to the reform of a system which he knew to be radically defective (24). A casual reference to the matter may be found here and there in his speeches, enough to show that the tendency of his own mind was wholly opposed to the barbarous code and revolting methods of punishment then in existence; but at the same time it is equally clear that, for reasons we can only conjecture, he refrained from touching the work of reform. On one occasion during the year 1780, he was roused from his apparent indifference by an occurrence which had come under his notice " in the newspapers of that morning." Two men had been put in the pillory the day before, and had been so cruelly ill-treated that one of them was killed outright, while the other was removed in a dying state. Burke's statement of the facts was prefaced by the following remarks :-
In making criminal laws, it behoved them materially to consider how they proceeded, to take care wisely and nicely to proportion the punishment so that it should not exceed the extent of the crime, and to provide that it should be of that kind which was more calculated to operate as an example and prevent crimes than to oppress and torment the convicted criminal (25).
He did not give the House his opinion as to the actual proportion between crime and punishment, but rather left it to infer that, as a rule, one was "wisely and nicely" proportioned to the other. The case to which he referred might well have led him to look a little further than the mere facts connected with it. One of the victims being not only short but short-necked, could not reach the hole in the pillory made for the head, whereupon "the officers of justice" forced his head through the hole, so that he hung rather than walked as the pillory went round. The result was that he soon grew black in the face, and the blood forced itself out of his nostrils, eyes, and ears. Knowing the treatment he would probably receive from the mob when he was exposed to their violence, he had begged hard for mercy before his punishment began; but his plea was not listened to, and he was immediately attacked with so much fury that the officers, in order to save him, opened the machine, when he fell down dead.
Burke spoke of this atrocious proceeding as "a melancholy circumstance " - language he might have used had he been speaking of someone who had fallen down stairs and broken his leg. No one in his day could use the language of invective with more effect; but on this occasion he contented himself with a very mild remonstrance. He asked the House whether it would not be right to abolish a mode of punishment liable to such perversion, and intimated at the same time that if no man would take the matter in hand, he would bring in a bill for the purpose. But no bill was brought in for the purpose either by him or by any other member. The Attorney-General said in reply that he would require to consult the Judges before he could interfere; but the result of his consultations, if any, was never seen (26).
If Burke was disposed to be silent on the subject of reform, he was equally reserved as to the moral effect of such a system of punishment on the masses. He saw clearly enough, no doubt, that under the debasing influence of public exhibitions, men had become not only indifferent to suffering, but had learned to look on it as a source of amusement. Had it not been so, such a scene could not have been witnessed in the streets of London. But it would have been useless to raise any question as to the moral result of an established system. It was the settled conviction of society that exhibitions of the kind were necessary in order to deter people from committing crime; just as the practice of mutilating and branding offenders was retained for centuries under the belief that it was the best means of producing a good moral impression on the multitude.
Educated as he was under such influences as these, it is not to be wondered at that Phillip brought with him to Sydney Cove the current doctrine of his times. When, for instance, in the heat of his indignation at a deliberate murder committed by the natives at Botany Bay, he instructed Captain Tench, before setting out on an expedition in search of the murderers, to " cut off and bring in the heads of the slain, for which purpose hatchets and bags would be provided," he was manifestly influenced by the eighteenth century belief in the efficacy of ghastly spectacles. His idea was that, by fixing the heads of the natives on poles around the settlement, he would deter others from committing similar outrages. The effect of such a spectacle would probably have been just the reverse. The feeling of repulsion provoked by exhibitions of that kind on minds not accustomed to them was shown in the case already referred to, when a convict was flogged in the presence of the natives. The only result was to make them sympathise with the sufferer and turn against those who punished him, whom they had not yet learned to look upon as " the officers of justice."
The reform of the criminal law made no appreciable progress until it was taken in hand by Sir Samuel Romilly, who identified himself with the cause as zealously as Wilberforce devoted himself to the abolition of the slave trade. Compared with his design, however, Romilly's actual achievements were very limited; the greatest consisted in having thoroughly awakened men's minds on the subject, and so prepared the way for his successors. The determined opposition he met with, even in places where he might reasonably have looked for sympathy, if not with active assistance, is enough to show the nature of the task he had undertaken. In 1808, he succeeded in passing a bill to repeal the old Act which punished pocket-picking with death; but he met with very different results two years afterwards, when he introduced bills to substitute transportation for death in cases of stealing in shops or dwelling-houses. The bills were passed in the Commons, but were thrown out by a majority of nearly three to one in the Lords. Among those who opposed the stealing-in-shops bill were seven bishops, the Archbishop of Canterbury among them. Romilly charitably supposed that they voted against his bill "out of servility towards the Government"; because he was unwilling to believe that they, " recollecting the mild doctrines of their religion, could have come down to the House spontaneously to vote that transportation for life is not a sufficiently severe punishment for the offence of pilfering five shillings worth of property, and that nothing but the blood of the offender could afford an adequate atonement for such a transgression (27)."
It was not necessary to impute servility to the bishops in order to account for their votes. They may be credited with having acted conscientiously, seeing that their opinions coincided with those of distinguished law lords, refined moral philosophers and other eminent persons, including the members of the Perceval Government. Perhaps the most popular as well as the most authoritative work on moral and political philosophy in their days was Paley's, originally Paiey's published in 1785; and Paley not only approved of but applauded the criminal laws of his time, as the best possible method of administering penal justice. His view was that the law of England, by the number of statutes creating capital offences, swept into the net every crime which under any possible circumstances might merit the punishment of death; but that when the execution of the sentence came under the consideration of the Executive, a small proportion only of each class of offenders was singled out to serve as examples to the rest. By this means, while few criminals actually suffered death, " the tenderness of the law " could not be taken advantage of by others. The happy result so arrived at proved " the wisdom and humanity" of the design (28).
To minds fed on such diet as that, any proposals for reform, which had the appearance of relaxing the iron grasp of of the law, seemed to be so many dangerous innovations, threatening the security of property and therefore the foundations of society. Proposals for the education of the poor in public schools were looked at in much the same light and met with almost as much opposition. Every other movement in the direction of reform - we might, perhaps, except John Howard's agitation for the improvement of the prisons - met with a similar fate. It was sufficient to stigmatise any scheme for reform as an " innovation " in order to enlist against it every one who believed in things as they were, instead of things as they should be. Even the proposal to do away with the procession to Tyburn met with opposition; and the kind of argument which was considered good logic in 1783 may be seen in Dr. Johnson's remarks on the subject:-
"The age is running mad after innovation; and all the business of the world is to be done in a new way; men are to be hanged: in a new way ; Tyburn itself is not safe from the fury of innovation." It having been argued that this was an improvement: - " No, sir," said he, eagerly, " it is not an improvement: they object that the old method drew together a number of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators, they don't answer their purpose. The old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it, Why is all this to be swept away ? "
To which Boswell thought it necessary to add :-
I perfectly agree with Dr. Johnson on this head, and am persuaded that executions now, the solemn procession being discontinued, have not nearly the effect which they formerly had. Magistrates, both in London and elsewhere, have, I am afraid, in this had too much regard to their own ease (29).
While Phillip and his immediate successors in office have been unsparingly criticised here for the apparent severity with which the law was administered during their time, it is clear that, in the eyes of their contemporaries in England, their administration would probably have been considered rather too lenient than otherwise. The prerogative of mercy was frequently exercised by Phillip, and his example was followed by Hunter and King. A striking illustration of English opinion on the subject presents itself in a letter written by Sir Joseph Banks to Governor King in 1804, in which ho referred to this matter with marked emphasis:-
There is only one part of your conduct as Governor which I do not think right - that is, your frequent reprieves. I would have justice, in the case of those under your command who have already forfeited their lives and been once admitted to a commutation of punishment, to be certain and inflexible, and no one instance on record where mere mercy, which is a deceiving sentiment, should be permitted to move your mind from the inexorable decree of blind justice. Circumstances may often make clemency necessary - I mean those of suspected error in conviction, but mere whimpering soft-heartedness never should be heard.
The plain inference from this language is, that every convict who committed a second offence, for which he was liable to death as the law then stood, should be hanged without mercy. We have only to recall the long list of capital offences at that time to understand what Sir Joseph meant by "the inexorable decree of blind justice." Had he not been generally credited by those who knew him with great generosity and kindliness of disposition, such a stern denunciation of "whimpering soft-heartedness" might be quoted as evidence of a very different character.
The current of public opinion with respect to the criminal law may be seen in the kind of legislation that met with favour in Parliament, as well as in that which met with no favour at all. While it proved to be such a very difficult matter to repeal a law inflicting death for a trifling offence, nothing seemed easier than to pass an Act imposing it for a new one, however trivial it might be. Romilly mentions that, during the session of 1816, a bill was introduced in the Commons by a colliery proprietor making it a capital offence to destroy any machinery employed in a colliery, although there was a law already in existence to that effect. The bill attracted no attention in the House, but passed through all its stages as a matter of course - " as if the life of a man was of so little account with us that anyone might at his pleasure add to the long list of capital crimes which disgrace our statute books (30)." Burke made the same remark thirty years before.
The laws in question were made for the protection of property, and were made at the instance of property owners - merchants, manufacturers, and country gentlemen - who held seats in Parliament.
A merchant or squire goes into the House of Commons exasperated by the loss of his broadcloth or the robbery of his fish, and immediately endeavours to restrain the crime by severe penalties. Hence it is that, every man judging that to be the most deadly offence by which he is himself a sufferer, the Parliament has permitted the statute book to be loaded with the penalty of death for upwards of two hundred offences (31).
When Burke went down to Bristol in 1780 to address his constituents, a portion of his speech was occupied with an elaborate defence of his votes in favour of a bill introduced into the House of Commons during the previous session, dealing with the law relating to imprisonment for debt. It proposed to restrict in some measure the unlimited power, then exercised by creditors, of detaining a debtor in prison as long as the debt was unpaid. Reform of that kind was not in favour among the commercial classes of Bristol, who probably regarded it as calculated to prejudice their securities. The absurdity as well as the injustice of the system was exposed by Burke in a few sentences, which display his intuitive perception of principles. In the first place, he said, every man was presumed by the law to be solvent - a presumption quite at variance with facts; and secondly, imprisonment for debt was inflicted, not because an impartial judge considered it necessary, but because an interested and irritated individual chose to demand it; the judge being a passive instrument in his hands. To such an extent had this abuse been carried that the gaols were everywhere crowded with miserable debtors, and Parliament was frequently obliged to interfere. For a long time previously, " Acts of Grace " had been passed once, and latterly twice, in every Parliament, by which the gaol-doors were thrown open and their inmates released. These Acts were described as
a dishonourable invention by which, not from humanity, not from policy, but merely because we have not room enough to hold these victims of the absurdity of our laws, we turn loose upon the publick three or four thousand naked wretches corrupted by the habits, debased by the ignominy of a prison.
NOTES:
(1) Commentaries, 2nd ed., vol. iv, p. 18; post, p. 545. The class of offenders usually executed at Tyburn may be gathered from the following:- "Yesterday morning, about nine o'clock, the following malefactors were brought out of Newgate and carried to Tyburn in three carts, where they were executed according to their sentences, viz. :- Henry Berthand, for feloniously personating one Mark Groves, the proprietor of £100 three per cent. annuities, and transferring the same as if he was the real owner thereof; William Jones, for stealing in a warehouse, in Aldersgate-street, a deal box containing a quantity of haberdashery goods; Peter Verrier, accomplice with Charles Kelly, executed for burglary in the house of Mrs. Pollard, in Great Queen-street; William Odern, for robbing two women in Spawfields; Charles Woolett, for robbing Bernard John Cheale, on the highway, of a metal watch; John Graham, for feloniously altering the principal sum of a bank note of £15, so as to make the same appear to be a bank note of £50, with intent to defraud; Charlotte Goodall and John Edmonds, for stealing in the dwelling-house of Mrs. Fortesque, at Tottenham, where she lived as a servant, a great quantity of plate, linen, &c.; Thomas Cladenboul, for assaulting Robert Chilton on the highway and robbing him of a gold watch; John Weatherley and John Lafee, for feloniously and treasonably coining and counterfeiting the silver moneys of the realm called shillings and sixpences. They all behaved very penitent." - London Evening Post, 9 October, 1782.
(2) Andrews, Eighteenth Century, p. 269; Hogarth, The Idle 'Prentice sent to Sea. The practice of hanging in chains was not confined to cases of piracy or mutiny; the bodies of murderers and highwaymen were usually hung in that manner. A murderer was hanged in chains on Rock Island in 1796; Collins, vol. ii, p. 10. The practice of hanging in chains had fallen into disuse in England by 1832; but an attempt was made to revive it at that date, when the Act for dispensing with the disscetion of criminals was passed. A clause was inserted to the effect that the bodies of all prisoners convicted of murder should either be hung in chains, or buried under the gallows on which they had been executed, according to the discretion of the Court.
(3) Hogarth, The Idle 'Prentice executed at Tyburn.
(4) " All the gibbets in the Edgeware Road, on which many malefactors were hung in chains, were cut down by persons unknown." — Annual Register, 3 April, 1763.
(5) Griffiths, Chronicles of Newgate. (1884), vol. ii, pp. 232-3.
(6) Ib., vol. ii, p. 267.
(7) Howard, State of the Prisons, 4th ed., 1792, pp. 482-4.
(8) Griffiths, vol. ii, p. 3. The number of executions in England during the present century decreased from year to year, notwithstanding the rapid increase of population. Mulhall's Dictionary of Statistics gives the number executed in England and Wales from 1801 to 1820 at one thousand six hundred and ninety-seven, or eighty-five per annum; between 1821 and 1830, the number was six hundred and seventy-two, or sixty-seven per annum ; and between 1831 and 1850, the number was three hundred and sixty-five, or eighteen per annum ; the total number for the half-century . being two thousand seven hundred and thirty-four. The population of Kngland had increased from 8,800,000 in 1801 to 18,000,000 in 1851. The population in 1780 was 8,000,000.
(9) State of the Prisons, p. 56.
(10) History of the Criminal Law, vol. i, p. 478. The recklessness was shown not only in the multitude of cases in which life was taken, but in the manner of taking it. By an Act passed in 1752, for instance, murderers were allowed but one clear day to prepare for death; and after execution their bodies were handed over to the surgeon for anatomical practice. The frequency of executions may be gathered from the following :-
John Townshend, a Bow-street officer examined before a Committee of the House of Commons in 1816, relates in his evidence that Lord Chief Justice Eyre once went the Home Circuit, beginning at Hertford and finishing at Kingston, when crimes were so desperate that in his charge to the Grand Jury at Hertford he told them to be careful what bills they found, for he had made up his mind, whatever persons were convicted throughout the circuit for capital offences, to hang them all. And he kept his word; he saved neither man nor woman. In one case seven people, four men and three women, were convicted of robbing a pedlar in a house in Kent-street. "They were all convicted, "says Townshend, " and all hanged in Kent-street opposite the door; and, I think, on Kennington Common eight more, making fifteen; all that were convicted were hung." And, generally, he observes in another part of his evidence, "with respect to the present time and the early part of my time, such as 1781-2, 3, 4, 5, 6, and 7, where there is one person convicted now, I may say I am positively convinced there were five then; we never had an execution wherein we did not grace that unfortunate gibbet with ten, twelve to thirteen, sixteen, and twenty." - Charles Knight, " London," vol. iv, p. 237.
(11) Parliamentary History, vol. xxi, pp. 324-6. Dr. Johnson defended the practice of duelling.—Boswell's Johnson, by Napier, vol. ii, p. 73; iii, p. 316n. ; iv, pp. 12, 205.
(12) Griffiths, vol. ii, p. 237; vol. i, p. 354.
(13) Andrews, p. 294.
(14) Griffiths, vol. ii, p. 136.
(15) The law will not justify jailers in fettering a prisoner unless when he is unruly, or lias attempted an escape. In 1728, the judges reprimanded the warders of the Fleet prison, and declared that a jailer could not answer the ironing of a man before he was found guilty of a crime.—Blackstone, Comm., book iv, c. 22.
(16) Griffiths, vol. i, p. 165.
(17) History of the Rod, pp. 150,196. Flogging was as common in Scotland as in England. The last exhibition in the streets of Edinburgh is described at length in the same work, p. 189.
(18) Burke, Celebrated Naval and Military Trials, p. 339.
(19) Memoirs, vol. ii, p. 133.
(20) Ib., vol. ii, p. 362.
(21) Remarks on Military Law and the Punishment of Flogging, 1837.
(22) History of the Rod, p. 369. "The military cat was a weapon about eighteen inches in length, armed with thongs of the same length, each thong hearing five or six knots, compressed and hardened into sharp edges till each had acquired the consistency of horn."—Ib., p. 357.
(23) Ib., p. 570. Flogging in the army was abolished in time of peace in 1868, and totally abolished in 1881. A proposal to abolish it in the navy was negatived in the House of Commons in 1879, by 239 votes to 56.— Haydn, Dictionary of Dates.
(24) On a motion to commit a bill making it felony to destroy any tree, plant, or shrub in a garden by day or night, Burke said that " the whole system of the penal laws was radically defective," and he recommended " a revision of the whole criminal law, which, in its present state, he considered abominable." Parliamentary History, vol. xxviii, p. 146. The bill referred to may be taken as a specimen of many other measures of the same kind, generally introduced by property owners for their own protection.
(25) Parliamentary History, vol. xxi, p. 387.
(26) The pillory was not finally abolished until 1837- A bill for its abolition was rejected by the Lords in 1815 on the motion of Lord Ellenborough, who said that the subject required consideration and ought to be referred to the Judges. " He talked about the antiquity of the punishment both in England and the rest of Europe, and said that it was mentioned by Fleta and Ducange ; and as usual declaimed against innovation."—Romilly, vol. iii, p. 189.
(27) Memoirs, vol. ii, p. 325.
(28) The tenderness of the law seems to have been an article of faith with many men besides Blackstone and Paley. Burke, for instance, in a speech delivered in the House of Commons in 1785, spoke of England as " a country which prided itself on the mild and indulgent principles of its laws " ; and again, of " the mild spirit and principles of the English laws." Post, p. 491.
Paley furnishes a curious illustration of the "wisdom and humanity" of the laws in another part of his work, in which he treats of relative duties in connection with property. If, he says, you should see a flock of pigeons in a field of corn, ninety-nine of them gathering all they got into a heap for one, and that the weakest, perhaps worst, of the flock; and if one of them, more hardy or hungry than the rest, should touch a grain of the hoard, and if all the others should instantly fly upon it and tear it to pieces, you ' would see nothing more than what is every day practised and established among men; '' ninety and nine toiling and scraping together a heap of superfluities for one, oftentimes the feeblest and worst of the whole set; and if one of the number take or touch a particle of the hoard, the others joining against him and hanging him for the theft."
(29) Boswell's Johnson, by Napier, vol. in, p. 297. The public procession from Newgate to Tyburn was not abolished untill 1783; from that date executions took place in front of Newgate Gaol. Lecky (Eighteenth Century, vol. vi, p. 251) speaks of the "disgusting scene of ribaldry and profanity which habitually took place when the criminal was carried for more than two miles through the most crowded thoroughfares in London. So brutal and brutalising a spectacle could be seen in no other capital in Europe." It is well described in Griffiths, vol. ii, p. 246.
(30) Memoirs, vol. iii, p. 260. "Mr. Burke once told me that, on a certain occasion when he was leaving the House, one of the messengers called him back, and on his saying he was going on urgent business, replied, ' Oh ! it will not keep you a single moment; it is only a felony without benefit of clergy !' He also assured me that although, as may be imagined from his political career, he was not often entitled to ask favour from the Ministry of the day, he was persuaded that his interest was at any time good enough to obtain their assent to the creation of a felony without benefit of clergy." - Sir James Mackintosh, Speech on moving for a Committee to inquire into the state of the Criminal Law, 1819.
(31) Russell, English Government and Constitution, p. 242.
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