Published online by Cambridge University Press: 18 August 2010
Shortly after two o'clock on the afternoon of Saturday, 19 September 1789, the last act of the sessions at Justice Hall in the Old Bailey began. London's accused capital offenders were tried here eight times yearly. Those who were convicted and received sentence of death or transportation remained in nearby Newgate Prison until their sentences could be carried into execution. So, too, did the capital respites: those convicts who were to be spared execution but who would not actually be pardoned until the Recorder of London, the chief sentencing officer at the Old Bailey, had decided what condition should be imposed. The vast majority of pardoned capital respites were transported to New South Wales. Before that condition of pardon could be put into effect, however, the respites had first to be brought back into the court at the end of another sessions in order to be formally notified, and to signal their acceptance, of the condition of their pardon—that is, to “plead their pardon” at the bar of the court. Although it is unclear from the sources whether or not the respites were still obliged, as they had been down to the 1690s at least, to present the most overt symbol of deference—kneeling while pleading their pardon—the symbolic significance of this procedure seems still to have been thought important, even if it had become largely a formality.
1. Although they frequently take note of this procedure, no accounts from the printed Old Bailey Proceedings (hereafter OBSP) specifically state the respites to have been kneeling when receiving their pardons (as a search of >http://www.oldbaileyonline.org/< reveals, when using “knees” or “kneeling” as a keyword search). My sense, as will be apparent from the rest of this article, is that such a formality had given way in the face of the practical difficulties involved in conveying the king's intention to pardon to large numbers of respites on any given occasion.
2. Here and in the following notes, I give shortened citations to the online version of the Old Bailey Proceedings >http://www.oldbaileyonline.org/<. Readers may find specific trials by going to the site and searching the proceedings by “reference number.” The account given in this paragraph is derived from OBSP 1788–89, pp. 888–92, (s17890909–1); and The Times of London, 21 Sept. 1789Google Scholar.
3. OBSP 1785–86, pp. 1162–63 (t17861025–3), 1186–89 (t17861025–10).
4. OBSP 1786–87, pp. 405–9 (t17870221–33), 646–53 (t17870523–17); OBSP 1787–88, pp. 52–57 (t17871212–34).
5. OBSP 1787–88, pp. 277–83 (t17880227–42), 543–47 (t17880625–10), 665–66 (t17880910–22); OBSP 1788–89, pp. 5–8 (t17881210–4).
6. For the subsequent fates of the eight men, see Flynn, Michael, The Second Fleet: Britain's Grim Convict Armada of 1790 (Sydney: Library of Australian History, 1993), 196–97Google Scholar , 228, 238–39, 351–52, 435, 458–59, 503–4, 662.
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8. MacKay, Lynn, “Refusing the Royal Pardon: London Capital Convicts and the Reactions of the Courts and Press, 1789,” London Journal 28.2 (2003): 21–40.CrossRefGoogle Scholar
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13. The National Archives (hereafter NA; formerly the Public Record Office), Home Office Papers (HO) 13/11, p. 225.
14. The Gentleman's Magazine 21 (1751): 425Google Scholar ; The London Magazine 20 (1751): 427, 475Google Scholar (mention of Gibson's action is entirely omitted from the places where we should expect to find it in OBSP 1750–51, pp. 177–78 (t17510523–25), 199 (s17510523–1). For Burt see OBSP 1785–86, pp. 868–69 (t17860719–31); OBSP 1786–87, pp. 328–29 (o17870110–3), 462–63 (o17870221–2).
15. These other seven were: Mary Talbot in December 1790 (The Annual Register 32 [1790]: 227)Google Scholar , whose initial defiance goes unnoticed in OBSP 1790–01, p. 90 (o17901208–1); Elizabeth Cummings in May 1791 (The Gentleman's Magazine 61 [1791]: 484)Google Scholar , whose efforts are similarly unnoted in OBSP 1790–91, p. 402 (o17910608–2); and the seven others noted in MacKay, “Refusing the Royal Pardon,” 23, 37–38, n. 16.
16. It is surprising that MacKay seems confident that the words of the respites are reproduced more or less verbatim in the OBSP, “unmuffled by the wrappings of deference” and thus affording us “a rare, small window into the minds of eighteenth-century plebeian capital convicts” (“Refusing the Royal Pardon,” 21). By 1789 publication of the OBSP was largely funded and regularly monitored by the government of the City of London. See Devereaux, Simon, “The City and the Sessions Paper: ‘Public Justice’ in London, 1770–1800,” Journal of British Studies 35 (1996): 466–503CrossRefGoogle Scholar ; and Devereaux, , “The Fall of the Sessions Paper: The Criminal Trial and the Popular Press in Late Eighteenth-Century London,” in Crime, Punishment, and Reform in Europe, ed. Knafla, Louis A., Criminal Justice History, 18 (Westport, Conn.: Praeger, 2003), 57–88.Google Scholar For the sake of brevity, I will not pursue in detail a reservation that might be raised concerning any evaluation of the accuracy and fullness with which convicts' words may have been reproduced in the OBSP, but only note that it might raise some interesting questions surrounding how far exactly we might regard it as an “official” or “hidden” transcript, and force us to think a little more clearly about what such phrases may or may not mean in this context.
17. The bibliography in this area has grown vast in recent years. Useful guides include several of the contributions to Dickinson, H. T., ed., Britain and the French Revolution, 1789–1815 (Basingstoke: Macmillan, 1989),CrossRefGoogle Scholar and Mori, Jennifer, Britain in the Age of the French Revolution, 1785–1820 (Harlow: Longman Pearson, 2000)Google Scholar.
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22. OBSP 1788–89 (June), p. 636 (o17890603–1).
23. A copy of the pamphlet is preserved at NA, Treasury Solicitor Papers (TS) 11/388. Most of it is reprinted in the account of the trial in Howell, T. B., ed., Cobbett's Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Time (34 vols., 1809–1826), 2:175–236.Google Scholar A full account of the pamphlet, the government's responses and the significance of the incident is provided in Hay, Douglas, “The Laws of God and the Laws of Man: Lord George Gordon and the Death Penalty,” in Protest and Survival: The Historical Experience: Essays for E. P. Thompson, ed. Rule, John and Malcolmson, Robert (London: Merlin Press, 1993), 60–111Google Scholar.
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25. OBSP 1788–89 (Sept), p. 890 (o17890909–7).
26. OBSP 1788–89 (Sept), pp. 890 (quote) (o17890909–8), (o17890909–9), 891 (o17890909–12).
27. The Times of London, 21 Sept. 1789Google Scholar (emphases in original); The Whitehall Evening- Post, 19–22 Sept. 1789.Google Scholar Thus, in December 1786, Joseph Wooley, suspected by the judge of having committed a theft “with an intention of being transported to Botany Bay,” found himself instead sentenced to be transported to Africa (OBSP 1786–87, p. 67 [t17861213–32]). One may also compare another suspicion of 1787 that Botany Bay was attractive enough a prospect actually to encourage criminality (The Times, 6 Jan. 1787)Google Scholar with the later relief, once news of the new settlement had arrived and been disseminated, that it was—like death—a place “From whose bourne no Traveller returns” (The Morning Chronicle, 14 Jan. 1791, 6 Dec. 1791)Google Scholar.
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29. OBSP 1789–89 (April), pp. 483–85 (o17890422–1); The Times, 1 May 1789.Google Scholar Two of the women, Sarah Storer and Sarah Cowden, were exceptions. In both April, and then again in June (even when their fellow respites had submitted or were shortly to do so), the grounds on which they attempted to refuse their pardons were that their original convictions were unjust. See OBSP 1788–89, pp. 483 (o17890422–1), 634–36 (o17890603–1); and MacKay, , “Refusing the Royal Pardon,” 21–27)Google Scholar.
30. OBSP 1788–89 (Sept), pp. 888 (o17890909–2), 890–91 (o17890909–9).
31. The process can be followed from the dates on the group pardons recorded in the government's “Criminal Entry Books” (NA, Secretary of State Papers [SP] 44/79a-96) and the notices of those convicts' appearances in court recorded in the OBSP.
32. Devereaux, Simon, “The Making of the Penitentiary Act, 1775–1779,” Historical Journal 42 (1999): 405–33CrossRefGoogle ScholarPubMed (esp. 423–24, 428–29); this discussion is expanded upon in Devereaux, , Convicts and the State: Criminal Justice and the English Government, 1750–1810 (forthcoming), chap. 4.Google Scholar See also Branch-Johnson, William, The English Prison Hulks, rev. ed. (Chichester: Phillimore, 1970)Google Scholar; Oldham, Wilfrid, Britain's Convicts to the Colonies (Sydney: Library of Australian History, 1990), chap. 3Google Scholar; and Campbell, Charles, The Intolerable Hulks: British Shipboard Confinement, 1776–1857, 3rd ed. (Tucson: Fenestra Books, 2001), esp. chap. 3.Google Scholar For a more optimistic portrait of the early hulks system, see Frost, Alan, “Overcrowded Hulls, Foetid Sinks? The Hulks System and the Thames Hulks, 1776–1786,” in his Botany Bay Mirages: Illusions of Australia's Convict Beginnings (Melbourne: Melbourne University Press, 1994), 9–41Google Scholar.
33. Concise summaries of the search for an alternative convict settlement are provided by Martin, Ged, “The Foundation of Botany Bay, 1778–90: A Reappraisal,” in Reappraisals in British Imperial History, ed. Hyam, Ronald and Martin, Ged (London: Macmillan, 1975), 44–74Google Scholar; and Martin, , “The Founding of New South Wales,” in The Origins of Australia's Capital Cities, ed. Statham, Pamela (Cambridge: Cambridge University Press, 1989), 37–51Google Scholar.
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35. OBSP 1786–87 (May), p. 499 (t17870418–33); OBSP 1788–89, pp. 483 (o17890422– 1), 634 (o17890603–1).
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46. British Library (hereafter BL), Additional Manuscript (Add MS) 59356, ff.59–60, Under Secretary Evan Nepean to Home Secretary William Grenville, 1 m/45 p[ast] 1 pm, 8 Sept. [1789].
47. “Quarter sessions” is a misnomer in this instance, because the necessity for all criminal indictments to first be heard before grand juries at quarter sessions meant that, unlike the rest of the country, “quarter” sessions for the City and for Middlesex were in fact held eight times per year in order to accommodate felony trial at the Old Bailey.
48. The workings of justice in London, and the nature and extent of interactions between officials of the City and Middlesex and those of government, during the Restoration and early Hanoverian eras are explored in Beattie, J. M., Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001)Google Scholar.
49. This particular aspect of the relations between London and governmental officials from the 1750s onward is explored in Devereaux, Convicts and the State (forthcoming), part 2.
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86. Some of these concerns can be followed in Wilf, “Imagining Justice,” and Devereaux, “City and the Sessions Paper.” A fuller discussion of them would embrace such topics as the enhanced scale of public whipping in the metropolis during the 1770s and '80s, as well as new courtroom and prison architecture and the much-enhanced role of defense lawyers in criminal trial from the 1780s onward. For architecture, see Evans, Robin, The Fabrication of Virtue: English Prison Architecture, 1750–1840 (Cambridge: Cambridge University Press, 1982),Google Scholar and Chalkin, Christopher, English Counties and Public Building, 1650–1830 (London: Hambledon Press, 1998), chaps. 7–10. For defense lawyers seeGoogle ScholarBeattie, J. M., “Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar; Langbein, John H., The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)Google Scholar; and May, Allyson N., The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar.
87. OBSP 1788–89, pp. 887–88 (s17890909–1). By comparison, only nineteen received terms of imprisonment, fourteen were ordered to be whipped, and two were fined.
88. BL, Add MS 59356 ff.65–66, Recorder of London to Nepean, 9 pm, 19 Sept. 1789. See also OBSP 1788–89, pp. 889 (o17890909–4), 890 (o17890909–7).
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97. HMC [30] Dropmore Papers, 1:517–18.
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111. The most influential analysis of “theater” and “counter-theater” in eighteenth-century English social relations is Thompson, E. P., “Patrician Society, Plebeian Culture,” Journal of Social History 7 (1973–74): 382–405CrossRefGoogle Scholar, and idem, “Eighteenth-Century English Society: Class Struggle Without Class?” Social History 3 (1978): 133–65, subsequently re-worked as “The Patricians and the Plebs,” in Thompson's Customs in Common (London: Merlin Press, 1993), 16–96.Google Scholar The impact of Thompson's perspective, both early and recent, is apparent in Wrightson, Keith, English Society, 1580–1680 (London: Hutchinson, 1982),Google Scholar and Hay, Douglas and Rogers, Nicholas, Eighteenth-Century English Society: Shuttles and Swords (Oxford: Oxford University Press, 1997).Google Scholar For a considered critique of it, see King, Peter, “Edward Thompson's Contribution to Eighteenth-Century Studies: The Patrician-Plebeian Model Re-Examined,” Social History 21 (1996): 215–28CrossRefGoogle Scholar.
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114. The formal sentencing of death at sessions' end, however, could still afford room for a show of defiance. One man sentenced to death in June 1791 reportedly “went from the Bar laughing, while the rest of the Prisoners were crying round him” (The Morning Chronicle, 15 June 1791).Google Scholar And the friends and relatives of the condemned might still provide their own critique. After the death sentences were handed down at another sessions, it was reported that “A most dreadful scene now presented … eight boys and seven women stood on the bail-dock for several minutes, filling the Court with shrieks and cries, imploring mercy—the whole Court and auditory seemed to feel sensations of the most interesting nature” (The Times of London, 19 Dec. 1789).Google Scholar If we may judge accurately from contemporary reports, however, such scenes were rare.