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The Little Book of Crime and Punishment is a repository of fascinating, obscure, strange and entertaining facts and trivia about the history of the British criminal justice system. Learn of the days when noses, hands and heads were cut off, heretics were burned at the stake and rebels were hanged, drawn and quartered. A reference book and a quirky guide, this can be dipped in to time and time again to reveal something new about the various forms of punishments; from ducking scolds, imposing curfews, tagging persistent offenders and, of course, imprisonment
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Title
Introduction
Timeline of Criminal History
1. Why Waste Money on Prisons?
2. As Black as Newgate’s Knocker
3. Judges and Men of Straw
4. Who’d Like to be a Gaoler?
5. Go to Gaol. And Stay There!
6. Get Out of Gaol Free Card
7. The Bloody Code
8. Public Executions at Bargain Rates
9. The Ones They Couldn’t Hold
10. The Villains
11. The Fraudsters
12. The Victims of Injustice
13. The Ones Who Got Away With It
14. The Invasion of the Body Snatchers
15. Replacing Proper Charleys with Old Bill
16. Panopticons and Misguided Reforms
17. ‘On going to see a man hanged’
18. Things Can Only Get Better
About the Author
Copyright
This short volume is the product of the author’s long involvement with the criminal justice system, both as a student and participant. An earlier account of the long and often gruesome history of Newgate Prison and its neighbour the Old Bailey familiarised me with the eccentricities, injustices and brutality of the system as it existed well into the twentieth century. And sixteen years as a magistrate has taught me of the futility of the lives of many repeat offenders and the heroic patience of those who try to give them hope. In writing this book I am indebted to my friend James Wareing who, when I was falling behind with my schedule, made his tranquil home available to me in which to write without interruption. Thank you, James.
Stephen Halliday, 2014
1154
Henry II becomes king; Newgate starts use as a prison
1166
Grand juries first used to indict criminals
1170
Murder of Archbishop Thomas Becket following dispute with Henry over the benefit of clergy
1189
End of the reign of Henry II; ‘Time Immemorial’ in English Law
1198
Innocent III becomes Pope and ends involvement of clergy in trials by ordeal; juries take over in England
1215
Signing of Magna Carta
1361
Justices of the Peace (magistrates) first mentioned in Act of Parliament
1381
Peasants’ Revolt, when Wat Tyler’s followers destroy the Fleet and Newgate Prisons
1423
Richard Whittington, former mayor of London, leaves money to rebuild Newgate Prison
1587
Mary, Queen of Scots executed at Fotheringay
1612
Pendle witch trials
1667
Jurors released after imprisonment for refusing to find William Penn guilty
1685
Duke of Monmouth beheaded (incompetently) by Jack Ketch
1723
Waltham Black Act begins creation of the Bloody Code with its 300 capital offences
1724
Execution of serial escaper Jack Sheppard
1725
Execution of ‘thief taker’ Jonathan Wild
1726
Birth of John Howard, prison reformer
1728
John Gay’s The Beggar’s Opera is written, based on the career of Jonathan Wild
1741
Last use of pressing to secure a plea
1747
Novelist Henry Fielding becomes magistrate at Bow Street, later creates the Bow Street Runners
1748
Birth of Jeremy Bentham, designer of panopticon prisons
1754
Death of Henry Fielding, whose brother John takes over the Bow Street Runners and creates horse patrols
1750s
‘Tyburn Drop’ replaces strangulation with hanging as a method of execution
1767
Midwife Elizabeth Brownrigg executed for maltreating and killing a servant girl
1777
John Howard’s report ‘The state of the prisons’ begins prison reform process
1780
Gordon Riots; birth of Elizabeth Fry
1783
Tyburn processions end when executions transferred to scaffold in front of Newgate
1790
Death of John Howard from ‘prison fever’ (typhus) contracted while visiting gaols in the Ukraine
1809
Dartmoor Prison opens
1813
Elizabeth Fry visits Newgate and begins programme of reform
1817
Elizabeth Fry secures the end of public whipping of women
1820
Cato Street Conspirators are the last criminals sentenced to be hung, drawn and quartered
1821
Millbank Panopticon Prison opens (closed 1890, now site of Tate Britain)
1822
Robert Peel becomes Home Secretary and begins to dismantle the Bloody Code
1824
John Dickens sent to Marshalsea Prison for debt; son Charles works in Warren’s blacking factory
1829
Metropolitan Police founded; bodysnatcher William Burke hanged; accomplice William Hare escapes justice by turning King’s evidence
1837
Pillory used for the last time
1840
Charles Dickens and William Thackeray attend execution of Francois Courvoisier outside Newgate
1868
Hangings transferred to execution chamber inside Newgate; transportation to Australia ends
1872
Stocks cease to be used as punishment
1886
First football riot, between Queen’s Park Rangers fans vs. Preston North End supporters
1888
Jack the Ripper murders in Whitechapel
1902
Newgate Prison demolished to allow expansion of Old Bailey
1904
James Whitaker Wright commits suicide in the Law Courts
1916
Irish patriot Sir Roger Casement executed at Pentonville
1928
Bertold Brecht’s The Threepenny Opera opens, based on John Gay’s The Beggar’s Opera two centuries earlier
1933
Last use of grand juries (formally abolished in 1948)
1937
Rev. Harold Davidson, former rector of Stiffkey, killed by a lion at Skegness
1944
The Great Escape: Roger Bushell leads seventy-five RAF personnel out of Stalag Luft III; Helen Duncan is the last person to be imprisoned under the Witchcraft Act of 1735
1953
Derek Bentley hanged for murder actually carried out by accomplice Christopher Craig
1955
Ruth Ellis becomes the last woman to be executed in Britain
1962
Petty criminal James Hanratty executed for A6 murder and ‘Pardon Hanratty’ campaign begins
1963
Great Train Robberyw
1964
Last executions in Britain; Peter Allen and Gwynne Evans hanged for murder in course of robbery
1965
Great Train Robber Ronnie Biggs escapes from Wandsworth Gaol; Roger Casement’s body transferred to Dublin
1966
Spy George Blake escapes from Wormwood Scrubs and makes his way to Moscow
1972
Beheading removed from the statute book
1974
Porridge character Norman Stanley Fletcher (portrayed by Ronnie Barker) enters Slade Prison
1998
Treason and piracy removed from statute book as capital crimes
2001
Ronnie Biggs returns voluntarily from Brazil and is gaoled
2002
DNA tests support James Hanratty’s guilt; Elizabeth Fry featured on £5 note
2013
Death of Bruce Reynolds, mastermind of the Great Train Robbery; train robber Gordon Goody announces that he will reveal the identity of ‘The Ulsterman’, the insider on the robbery who escaped justice
2013
Death of Ronnie Biggs
Before the nineteenth century, criminals were rarely sentenced to prison. Prisons were expensive to build, no one was keen on having one in their backyard and it seemed a pity to waste money on criminals. The purpose of a prison (often known as the bridewell, clink or lockup to give a few local expressions) was to hold prisoners until their trials before magistrates or a judge and jury. When the trial had been held (and the usual verdict was ‘guilty’), the convicted prisoner would be sent back to prison for a brief period before the sentence was carried out.
The system started with King Henry II (1154–89) who, when not quarrelling with Thomas Becket, was reforming the English legal system. And as we will see later, Henry had a strong case in his argument with the troublesome priest, even if he did overplay his hand by turning his archbishop into a martyr. Henry instituted the system whereby the king’s judges, sometimes referred to as justices in eyre, travelled from Westminster to each county in his kingdom to administer justice. They normally travelled in pairs and before they arrived in a town, the local ne’er-do-wells would be rounded up by the parish constable and incarcerated in the local gaol to await trial by the king’s judges. The ‘judges’ were unlikely to have had much in the way of legal training; the Inns of Court, where barristers and judges were later trained, did not appear for another two centuries. Henry’s judges were more likely to be courtiers and nobles who enjoyed the king’s confidence and were prepared to do the work at little cost.
The trials became known as assizes, derived from an old French word meaning a legal process carried out while seated. The assizes would begin with the arrival of judges, who would often process through the town with the mayor and other dignitaries before beginning the trials. This continued until 1972, when the assizes were replaced by permanently staffed Crown Courts, of which the Old Bailey is the most famous. When they had finished their work in a county, the judges would return to London and to Westminster Hall where the high court was based, until the reign of Queen Victoria who opened the present Royal Courts of Justice in the Strand in 1882. The judges would compare notes with their colleagues who had been administering justice in other parts of the kingdom, discussing such matters as how evidence was gathered and presented, what credence was attached to testimony from people at different levels in society and what penalties they had imposed for various offences.
In this way a set of common principles or precedents developed to ensure a degree of consistency in the administration of justice. In time this became known as the common law, the application of which is based upon precedents in order to combine consistency with justice. Henry II is thus regarded as the ‘Father of the Common Law’ and it is not by chance that the year of his death, 1189, is regarded as time immemorial in English law. If an individual can prove, for example, that he has owned a piece of land or other possession since 1189 then no claim prior to that date will be held valid in English law. The Crown Courts continue to hear serious cases which are likely, in the event of guilt being established, to result in long prison sentences.
Less serious infringements of the law would be dealt with not at the assizes by the king’s judges, but by quarter sessions or petty sessions. Quarter sessions were held, as their name implies, four times a year at Epiphany (early January), Easter (March/April), Midsummer and Michaelmas (late September). They would be presided over by three Justices of the Peace sitting with a jury. Minor offences such as drunkenness, theft of fairly low-value items and most motoring offences would be dealt with by three Justices of the Peace without a jury, in petty sessions which were often held in a church hall or pub rather than in a purpose-built courthouse. The office of Justices of the Peace (also called magistrates) is an ancient one. It was first mentioned in an Act of Parliament in 1361 but the reference there is clearly to an office that had already existed for some time. In 1195, during the reign of Richard I (1189–99), Keepers of the Peace were appointed and they were probably the forerunners of the Justices of the Peace. They were chosen by the king’s local representative, the sheriff, as citizens of good standing with local knowledge and they did much more than hear cases. Their knowledge of the local populace would be used to round up suspects before the assizes or quarter sessions were held (whereas nowadays a justice who knows anything about the criminal past of a suspect is required to stand down from hearing the case). They were not paid (they still aren’t) and now have some training in court procedure, but they are assisted by a legally qualified court clerk who advises them, when required, on the law. Before the reign of Queen Victoria they did much else besides. In effect they were the local government authority outside the major towns, with the task of raising money from rates to repair bridges and roads, for example.
The use of judges, magistrates and juries was a great improvement on what went before. In the early medieval period, trial by ordeal was a common method of establishing guilt or innocence, based upon the assumption that God would care for the innocent. The most common variations were trial by fire and trial by water.
Trial by fire involved walking across hot coals or holding a red-hot piece of metal. After an interval of about three days, the resulting wounds would be examined by a priest, who would decide whether the healing process had advanced sufficiently to show that the deity had indeed intervened. If not, the suspect would be declared guilty.
Trial by water took two forms. The first required the suspect to remove a stone from the bottom of a cauldron of boiling water, following which a priest would decide whether the injuries were consistent with guilt or innocence. The other form, known as ordeal by cold water, involved the accused being thrown into a river or pond, sometimes bound hand and foot. If he floated he was innocent and if he sank he would drown – regarded as a satisfactory outcome to those who believed this was a punishment for his guilt.
In 1215 Pope Innocent III (1198–1215) prohibited priests from participating in these ‘ordeals’, which put an end to the practice, though in the seventeenth century in England a witch-hunter called Matthew Hopkins briefly revived a form of ordeal by water associated with catching witches. It was assumed that a witch, having renounced her baptism, would be rejected by water. The unfortunate woman would be thrown into water. If she floated, she was rejected by the water and therefore guilty. If she sank, well, that was hard luck but at least she was innocent. In the absence of these crude, swift and unjust methods of determining guilt, other methods had to be found and in England this was the jury.
The first type of jury was the grand jury, which was created in England by Henry II in 1166. The word ‘jury’ is derived from a Norman French word meaning ‘to swear’ and simply meant that a number of local citizens would swear to deliver justice. The grand jury would consider evidence of a crime presented by a prosecutor and decide whether the case was strong enough to proceed to an indictment (in effect an accusation) before the assizes or quarter sessions. This was not a trial. The grand jury only considered the prosecution’s case to decide whether there was sufficient evidence to proceed to a trial.
In England, grand juries ceased to operate in 1933, though they were not officially abolished until 1948. The number of jurymen on a grand jury varied, but it was never fewer than twelve and often more. They continue to be used in some parts of the world which practise the common law, notably the United States of America. Their work in England is now done by magistrates who decide whether there is a prima facie case to go to trial, either in the magistrates’ court itself or, for more serious indictable offences, in the Crown Court. All criminal matters, from speeding to murder, begin their journey in magistrates’ courts and 95 per cent of them are disposed of there. The remaining 5 per cent go to the Crown Court to be heard before a judge and a jury which is, strictly, a petit or petty jury (small jury) consisting of twelve ‘good men and true’; this phrase originates in the seventeenth century to describe the trial jury though in the twentieth century women also began to serve on juries. The jury system was implicitly recognised in 1215 in Magna Carta, the same year that Pope Innocent III effectively ended trial by ordeal. The famous clause 39 of the document sealed by a reluctant King John at Runnymede in 1215 states:
No freeman shall be taken or imprisoned or disseised [i.e dispossessed] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
The word ‘peers’ means that citizens have the right to be tried by their fellow citizens. Clause 40 adds that ‘To no one will we sell, to no one will we refuse or delay, right or justice.’ These clauses, which remain a feature of the English legal system, were taken in later centuries to mean that jury trial (i.e judgement by one’s fellow citizens) was the right of any subject for serious criminal charges.
So in the absence of prison sentences, what was to happen to those who were convicted? As previously noted, not many offenders were sent to prison. In 1582 William Lambarde, a barrister of Lincoln’s Inn, applauded the English penal code for no longer including ‘pulling out the tongue for false rumours, cutting off the nose for adultery or taking away the privy parts for counterfeiting of money’, though many equally gruesome punishments remained, which Lambarde divided into three categories: infamous, pecuniary and corporal. Infamous punishments were reserved for crimes such as treason, and pecuniary penalties were usually imposed by Justices of the Peace. Corporal punishments he divided into two subcategories: ‘Capital (or deadly) punishment is done sundry ways as by hanging, burning, boiling or pressing. Not capital is of diverse forms as of cutting off the hand or ear, burning, whipping, imprisoning, stocking, setting in the pillory or ducking stool’. Imprisonment is there, but low down in the list of penalties. Some of the more common sentences were:
Fines were commonly imposed for petty offences including swearing, playing a prohibited musical instrument, sport on the Sabbath or failing to attend church. Some sports, such as football, were forbidden at any time because, in the words of an edict of 1314, of ‘great noise in the city caused by hustling over large balls from which many evils may arise’.
Fines were also applied to tradesmen who sold defective produce. An alternative punishment in such cases was humiliation. For example, a fishmonger or butcher who had sold produce of poor quality or a baker whose loaves were underweight would be paraded around the town in a cart with the offending merchandise, with a placard describing his offence hanging around his neck.
The stocks, in which culprits were held by their ankles, were sometimes used to detain offenders in the hours before their appearances in court. In 1384 two defendants failed to appear for their trials because they had been put in the stocks and forgotten. Their feet froze and they died.
The City of London’s stocks were in the heart of the Square Mile and in about 1282 the City’s stocks market, a market for fruit and vegetables, was established nearby. It continued to trade until it made way for the residence of the Lord Mayor, the Mansion House, in 1737. Some historians believe that the stockmarket, which began to trade in stocks and shares from nearby coffee houses in the early eighteenth century, took its name from this market and hence from the stocks from which the fruit and vegetable market took its name.
In some cases the stocks were used as a punishment in their own right, usually for petty thieves, drunks and vagabonds. They remained in use in England until 1872. Passers-by were invited – some would say encouraged – to throw things at them, but at least the victims could defend themselves by catching some of the missiles.
Helpless in the pillory.
The pillory was similar to the stocks but the victims were instead held by the wrists and neck, leaving them without any protection at all. Some people died in the pillory from being struck by hard objects like stones, such as the perjurer John Waller, who was pelted to death in London in 1732. Waller was a highwayman, condemned for providing false evidence which led to the execution of a man called James Dalton. Dalton’s brother delivered the coup de grâce that ended Waller’s life in the pillory.
Another unfortunate was a man called Penedo who was pilloried in 1570 for forging the seal of the Court of Queen’s Bench. His ears were nailed to the pillory and when he was released he left part of them behind.
Daniel Defoe had an easier time in the pillory. The author of Robinson Crusoe was committed to the pillory in London in 1703 for a pamphlet called ‘The Shortest Way with Dissenters’, which lampooned the government. Such was Defoe’s popularity that he was protected from assailants by a London mob who threw flowers. Upon his release Defoe escaped the punitive fine which had also been imposed as part of his sentence by making an ignoble deal with the leader of the Tory government, Robert Harley, to become a government agent and provide intelligence about his former Whig friends.
A victim of the pillory meets his fate.
The most unlikely candidate for the pillory was the Scottish naval officer Thomas Cochrane (1775–1860), who was feared by the forces of Napoleon as much as Nelson was. Cochrane was convicted of spreading false rumours about the death of Napoleon in order to gain from the rise in the value of shares. The evidence was strong, the verdict ‘guilty’ but the sentence, to stand in the pillory, was revoked for fear of provoking a riot in support of the naval hero. Instead he was fined and stripped of his knighthood, though the title was later restored by a sympathetic Queen Victoria.
The last person to be pilloried in England was Peter James Bossy, who was convicted of perjury in 1830. He was offered the choice of seven years’ transportation or an hour in the pillory, and chose the pillory. He survived but disappeared from history, the punishment itself being formally abolished on 30 June 1837.
The ducking stool was a punishment used exclusively for women, commonly for prostitutes and scolds. A scold was defined as ‘a troublesome and angry woman who by brawling and wrangling amongst her neighbours breaks the public peace, increases discord and becomes a public nuisance to the neighbourhood’. Nowadays we have ASBOs (antisocial behaviour orders) instead. It was also used, long after Innocent III banned the participation of clergy in trial by water, to establish whether a woman was a witch.
A scold awaits a ducking.
The ducking stool – punishment for scolds and witches.
Another way to silence a scold: the scold’s bridle.
Whipping was a common punishment for vagabonds and others who disturbed the king’s peace. Sometimes the culprit was restrained in the pillory, but specially designed whipping posts were also used, both in public places and within prisons where they were used to maintain discipline. The prison reformer Elizabeth Fry (1780–1845) successfully campaigned to end the public whipping of women in 1817 but the practice continued within prisons in Britain until 1948. Sometimes particularly notorious offenders would be ‘whipped at the cart’s tail’, so tied to a cart and drawn around a town or city as they were whipped.
One of the best known (and perhaps most deserving) victims of this punishment was the perjurer Titus Oates (1649–1705). An early career as an Anglican priest was ended by accusations of blasphemy and buggery, whereupon he briefly entered the Jesuit order in France. He took advantage of anxieties about Catholic traitors in the reign of Charles II by falsely accusing a number of prominent citizens of plotting to assassinate Charles II and replace him with the king’s Catholic brother (who eventually assumed the throne as James II). Many innocent people suffered gruesome deaths as traitors on the strength of Oates’s perjured evidence. In 1685 he was finally convicted of perjury and sentenced to be whipped from Newgate to Tyburn and pilloried every year. It was assumed that this would result in his death but despite the fact that, according to a contemporary account, Oates ‘made hideous bellowings and swooned several times with the greatness of the anguish’, he survived and was released from Newgate in 1688, dying in 1705 still admired by some Protestants.
Justices of the Peace would sometimes order the whipping of vagabonds beyond the parish boundary so that they were no charge upon the parish in which they were detained. In 1572 an Act for the Punishment of Vagabonds prescribed that ‘fortune tellers, pedlars, players [i.e actors] and jugglers’ should be whipped and ‘burned through the right ear’ as evidence of their offence, but fortunately for William Shakespeare, who was 8 years old when the Act was passed, players who were patronised by the monarch or prominent nobles were exempt from the penalty. In 1744 an Act specified that while ‘idle and disorderly persons, rogues and vagabonds’ were to be publicly whipped, ‘incorrigible rogues’ (repeat offenders) were to be offered to the army or navy, many of them no doubt serving in the forces of Nelson and Wellington, the latter describing his troops as ‘the scum of the earth’.
A birch at the ready.
Mutilation was adjusted according to the crime and included: branding, cutting off of hands, feet, noses, ears and removal of eyes, tongues and lips. Counterfeiting was treated with particular savagery, with coiners, as they were called, having their right hands lopped off (presumably because they had done the counterfeiting), followed by castration.
Poaching the king’s deer was also treated severely: a first offence by a serf leading to the loss of his right hand and a second offence bringing death. In the Anglo-Saxon period, the Danes would remove eyes, scalps and flay living victims.
Transportation was used as a punishment from the late sixteenth century, first to the North American colonies, though this ceased after the War of Independence, when the new USA declined to accept any more British criminals. Thereafter convicts were sent first to South Africa and later, more notoriously, to Australia, a practice which continued until the 1860s, by which date about 160,000 convicts had been resettled there. The convicts were sent from prisons like Newgate to prison ships (hulks) moored in the Thames and the Medway to await the long journey halfway round the world.
Some feared transportation more than they feared death. In June 1789 the Morning Chronicle reported that Mrs Maria Fitzherbert (illegally married to the Prince of Wales, later George IV) had attended the Old Bailey to hear a 16-year-old maid, Sarah Cowan, resisting attempts to persuade her to accept transportation rather than execution. She eventually succumbed and was duly sent to a life in the new colony.
Convicts being taken from Newgate to the hulks for transportation to America. American Independence later redirected them to Australia, a process which continued until the 1860s. (The Newgate Calendar).
The ultimate penalty, of course, was death and by the end of the eighteenth century almost 300 offences were subject to capital punishment, ranging from theft of goods worth 5s (25p) and impersonating a Chelsea pensioner to arson, murder and treason. In practice the harsh penalties were often evaded, either because juries refused to convict people of petty theft or because the death sentences were set aside by the crown. But when the sentence was carried out there were many ways of taking a life.
Beheading was the kindest form of execution, if carried out by a proficient executioner, because it was instant. For this reason it was mostly reserved for royalty or the nobility, like Anne Boleyn or Thomas More. However, if the axeman was incompetent or drunk then it was a gruesome experience. Thomas Cromwell’s execution in 1540 was botched, in the words of a contemporary, by ‘a ragged butcherly miser which very ungoodly performed the Office’ with several blows of the axe being needed to despatch the unfortunate fallen favourite of Henry VIII. The executioner was probably drunk as a result of libations supplied to him by Cromwell’s aristocratic enemies, who resented their earlier humiliations at the hands of the upstart Cromwell and wanted his end to be as degrading and painful as possible.
Hanging was the usual fate of more common criminals. It was usually carried out in public until 1868, the best known execution site being Tyburn (Marble Arch). From 1868, executions were carried out within prisons before a few official witnesses. Prior to about 1850 most of those hanged died from strangulation, which could take as long as 20 minutes.
Thereafter, the longer ‘Tyburn drop’ brought about the breaking of the neck and instant death. James Boswell, biographer of Samuel Johnson, witnessed an execution at Tyburn before the introduction of the drop method and was so distressed by what he saw that he was unable to sleep. He advocated a more ‘humane’ way that he had witnessed in Rome, where ‘the criminal is placed upon a scaffold and the executioner knocks him on the head with a great iron hammer then cuts his throat with a large knife and lastly hews him into pieces. The spectators are struck with prodigious terror; yet the poor wretch who is stunned into insensibility by the blow does not actually suffer much.’
Crowds gather at Tyburn (Marble Arch) to witness executions.
Burning at the stake was the fate of heretics and women who were convicted of murdering their husbands or of counterfeiting money (male forgers being hung, drawn and quartered) and occasionally of witches, though these were more often hanged. Joan of Arc suffered the fate of a heretic, having been convicted of heresy on very doubtful grounds, as did many Catholic and Protestant martyrs at Smithfield, victims of the notoriously fickle religious affiliations of Tudor monarchs.