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Initial views from the Digital Panopticon: Reconstructing Penal Outcomes in the 1790s

Published online by Cambridge University Press:  31 August 2016

Richard Ward  and
Lucy Williams
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Extract

The criminal justice system of eighteenth- and nineteenth-century England has been likened to a corridor of connected rooms or stage sets. At each stage in the judicial process—from detection and apprehension through to trial, sentencing, and punishment—decisions were made that might remove the accused from the system entirely, or propel that person further along the process into a number of possible outcomes. That decision making (including the identity of the decision makers and the criteria upon which their decisions were based) has been the subject of much historical study. Less attention has been given to the individual experiences—the singular journeys—of the accused through this labyrinthine process. This is in large part because of the inherent evidential and methodological difficulties of reconstructing judicial pathways and the wider criminal lives of offenders. As Tim Hitchcock and Robert Shoemaker note, the archives of criminal justice were created to manage the bureaucracy of prosecution and punishment, not to reveal the criminal's navigation of that system. Tracing an individual offender's journey through the judicial process (and that person's life beyond) therefore entails piecing together fragments spread almost randomly across hundreds of thousands of pages.

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Articles
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Law and History Review , Volume 34 , Special Issue 4: Digital Law and History , November 2016 , pp. 893 - 928
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Copyright © the American Society for Legal History, Inc. 2016 

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References

1. Peter King, Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000), 1.

2. Most notably, John M. Beattie, Crime and the Courts in England 1660–1800 (Oxford: Clarendon Press, 1986); Beattie, Policing and Punishment in London 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001); King, Crime, Justice, and Discretion; and Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c.1660–1725 (Cambridge: Cambridge University Press, 1991).

3. Aside from, as Hitchcock and Shoemaker also note, the ordinary of Newgate's biographical Accounts of the offenders executed at Newgate: Tim Hitchcock and Robert Shoemaker, London Lives: Poverty, Crime and the Making of a Modern City, 1690–1800 (Cambridge: Cambridge University Press, 2015), 23.

4. In particular, Clayton, Mary, “The Life and Crimes of Charlotte Walker, Prostitute and Pickpocket,” London Journal 33 (2008): 3–19 Google Scholar; Barry S. Godfrey, David J. Cox and Stephen D. Farrall, Criminal Lives: Family Life, Employment, and Offending (Oxford: Oxford University Press, 2007); and Godfrey, Cox and Farrall, Serious Offenders: A Historical Study of Habitual Criminals (Oxford: Oxford University Press, 2010).

5. For more on the project, see The Digital Panopticon: The Global Impact of London Punishments, 1780–1925 (hereafter DP). http://www.digitalpanopticon.org/ (January 25, 2016).

6. For a full list of the records that will be incorporated into the website, see DP, “Sources.” http://www.digitalpanopticon.org/?page_id=272 (January 25, 2016). The website also allows users to manually add further documents to such computer-generated lives, as well as being able to search for, and create, other life archives.

7. Old Bailey Proceedings Online (hereafter OBP) (version 7.2), “About the Proceedings.” http://www.oldbaileyonline.org/static/Proceedings.jsp (January 25, 2016). Records from the OBP are cited here using the website's trial reference numbers, given in brackets. These can be searched for at http://www.oldbaileyonline.org/forms/formMain.jsp. Strict criteria for the automated record linkage have been used. To avoid the possibility of false positives, searches of these five datasets have been limited to London cases, and links have only been made to the OBP when there is an exact match between name and (when given) conviction date as given in both records. The automated linking has been developed in an iterative process with extensive manual checking and refinement. Manual checking suggests that the accuracy of the automated record linkage is very high.

8. Digitized as part of London Lives 1690 to 1800: Crime, Poverty and Social Policy in the Metropolis (hereafter LL) (version 1.1), “Criminal Registers of Prisoners in Middlesex and the City (CR),” (hereafter “Criminal Registers”) (January 25, 2016). Records from LL are cited here using the website's unique reference numbers, given in brackets. These can be searched for at http://www.londonlives.org/formRef.jsp.

9. British Convict Transportation Registers 1787–1867, (hereafter BCTR, http://onesearch.slq.qld.gov.au/primo_library/libweb/action/search.do) “About the Convict Database,” http://www.slq.qld.gov.au/resources/family-history/convicts/about (January 25, 2016).

10. On the indents, see Tasmanian Archives and Heritage (hereafter TAH) , “Indents of Male Convicts,” http://search.archives.tas.gov.au/default.aspx?detail=1&type=S&id=CON14, “Indents of Female Convicts,” http://search.archives.tas.gov.au/default.aspx?detail=1&type=S&id=CON15 (January 25, 2016).

11. Also digitized as part of LL, “Coroners' Inquests into Suspicious Deaths.” http://www.londonlives.org/static/IC.jsp (January 26, 2016).

12. The National Archives (hereafter TNA), “Home Office: Judges' Reports on Criminals.” http://discovery.nationalarchives.gov.uk/details/r/C8911, “Home Office: Criminal Entry Books,” http://discovery.nationalarchives.gov.uk/details/r/C8877 (January 29, 2016).

13. Principally, Beattie, Policing and Punishment, 346–69, 454–61; Vic Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994); King, Crime, Justice, and Discretion, ch. 10; Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1993); and Andrea McKenzie, Tyburn's Martyrs: Execution in England, 1675–1775 (London: Hambledon Continuum, 2007).

14. Beattie, John, “Looking back at ‘Property, Authority and the Criminal Law,’” Legal History 10 (2006): 20 Google Scholar. For a fuller discussion, see Beattie, Policing and Punishment, 353–60, 454–57. These factors were also those highlighted by Beattie and King in their respective studies of assizes pardoning cases: Beattie, Crime and the Courts, 436–49; and King, Crime, Justice, and Discretion, 332. For the importance of elite support and claims to respectability, see Hay, Douglas, “Writing about the Death Penalty,” Legal History 10 (2006): 39–46 Google Scholar; Hay, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, John G. Rule, Edward P. Thompson and Cal Winslow (London: Allen Lane, 1975), 43–49.

15. The pardoning system in London is discussed at length in Aspinall, Arthur, “The Grand Cabinet, 1800–1837,” Politica 3 (1938): 324–44Google Scholar; Beattie, Policing and Punishment, 346–69, 448–62; Beattie, “The Cabinet and the Management of Death at Tyburn after the Revolution of 1688–1689,” in The Revolution of 1688–1689: Changing Perspectives, ed. Lois G. Schwoerer (Cambridge: Cambridge University Press, 1992), 218–33; Simon Devereaux, “Peel, Pardon and Punishment: The Recorder's Report Revisited,” in Penal Practice and Culture, 1500–1900: Punishing the English, ed. Simon Devereaux and Paul Griffiths (Basingstoke: Palgrave Macmillan, 2004), 258–84; and Gatrell, The Hanging Tree, ch. 6, 16, 20–21. For pardoning in provincial cases, see Judges' Reports on Criminals, 1783 to 1830: HO (Home Office) 47, 6 vols. (Chippenham: List and Index Society: 2004), 1:iii–x; and Beattie, Crime and the Courts, 430–36.

16. Later petitions were also forwarded to the Home Office on capital convicts from the Old Bailey, and these would be passed on to the recorder for a written report and recommendation, just as the assize judges were required to do: Judges' Reports on Criminals, 1:xiii.

17. Devereaux, “Peel, Pardon and Punishment,” 270; Devereaux, Simon, “The City and the Sessions Paper: ‘Public Justice’ in London, 1770–1800,” Journal of British Studies 35 (1996): 472 Google Scholar.

18. Ibid., 471–82.

19. Beattie, Crime and the Courts, 447.

20. On the establishment of the criminal registers, see Simon Devereaux, “The Criminal Branch of the Home Office 1782–1830,” in Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie, ed. Greg T. Smith, Allyson N. May, and Simon Devereaux (Toronto: Centre of Criminology, University of Toronto, 1998), 282–83.

21. For London execution rates from 1701 onwards, see Gatrell, The Hanging Tree, 616.

22. Devereaux, Simon, “England's ‘Bloody Code’ in Crisis and Transition: Executions at the Old Bailey, 1760–1837,” Journal of the Canadian Historical Association 24 (2013): 82 Google Scholar.

23. For annual post-1760 execution levels, see Devereaux, “England's ‘Bloody Code,’” 82.

24. On such “crime-invoked responses,” see King, Crime, Justice, and Discretion, 327.

25. We have yet to establish the extent to which this was the result of condemned females pleading pregnancy. On this, see Oldham, James C., “On Pleading the Belly: A History of the Jury of Matrons,” Criminal Justice History 6 (1985), 1–64 Google Scholar.

26. Across all four offenses, 23.3% of males were executed compared with 5.9% of females.

27. Age is recorded for 87% of the offenders sentenced to death at the Old Bailey in the 1790s.

28. For example, the relative frequency with which those over 55 years of age were put to death in the 1790s (see Figure 1) resulted from four of the offenders in this age category having been convicted of the largely “unpardonable” crimes of coining, forgery, or mail theft.

29. King, Crime, Justice, and Discretion, 312–3 (quote at 296); Beattie, Crime and the Courts, 440, 443; and Beattie, Policing and Punishment, 354, 357.

30. Ibid., 357.

31. Five of the condemned had previously been indicted twice, one offender had faced three previous indictments, and two offenders had stood trial on four previous occasions.

32. OBP, September 11, 1799 (t17990911-5).

33. OBP, February 15, 1797(t17970215-2); and LL, “Criminal Registers”, (NAHOCR700030114).

34. LL, “Criminal Registers” (NAHOCR700010029, NAHOCR700020103).

35. OBP, July 12, 1797 (t17970712-4); and LL, “Criminal Registers” (NAHOCR700020123).

36. LL, “Criminal Registers” (NAHOCR700030134); and OBP, February 20, 1799 (t17990220-40).

37. OBP, February 20, 1799 (t17990220-40).

38. Records included within the British Convict Transportation Registers 1787–1867 database are here cited using the State Library of Queensland record numbers, which can be searched for at the URL given in Note 9. For John Purdy (“Purdie”), see BCTR (record number 21115538850002061).

39. LL, “Criminal Registers” (NAHOCR700020005); and OBP, February 17, 1796 (t17960217-32).

40. TNA, Home Office Papers (HO) 47/19, ff.126. Our emphasis.

41. OBP, January 14, 1795 (t17950114-47).

42. The policy of not transporting elderly offenders is discussed further in the following section. John Sharp (Sharpe) seems to have been the only offender over the age of 55 to have been pardoned on the condition of transportation (twice) in the 1790s, but on neither occasion was he sent to Australia: OBP, January 9, 1793 (t17930109-29), June 22, 1796 (t17960622-24); and LL, “Criminal Registers” (NAHOCR700060075, NAHOCR700020137).

43. OBP, April 18, 1798 (t17980418-54).

44. TNA, HO 47/22, ff. 285–8, HO 13/12, ff. 28, 95.

45. LL, “Criminal Registers” (NAHOCR700030120); and BCTR (record number 21133283760002061).

46. The overwhelming majority of such conditional pardons specifically required that the offender serve in the West Indies.

47. For more on the recruitment of offenders (both at the pretrial and post-trial stage), see Conway, Stephen, “The Recruitment of Criminals into the British Army, 1775–81,” Bulletin of the Institute of Historical Research 58 (1985): 46–58 Google Scholar; Emsley, Clive, “The Recruitment of Petty Offenders in the French Wars 1793–1815,” Mariner's Mirror 66 (1980): 199–208 Google Scholar; and Peter King, “War as a Judicial Resource: Press Gangs and Prosecution Rates 1740–1830,”’ in Law, Crime and English Society 1660–1840, ed. Norma Landau (Cambridge: Cambridge University Press, 2002) 97–116.

48. This accords with King's findings from an analysis of the judges' reports: King, Crime, Justice and Discretion, 303.

49. TNA, HO 47/19, ff.126-7; and OBP, April 16, 1795 (t17950416-47).

50. LL, “Criminal Registers” (NAHOCR700010103).

51. OBP, May 31, 1797 (t17970531-33).

52. This partly explains why condemned females were four times more likely to be imprisoned than were males (Table 1).

53. Two others were in their early 40s at the time of their conviction, and, therefore, they were perhaps also deemed too old for transportation.

54. OBP, October 25, 1797 (t17971025-8); and LL, “Criminal Registers” (NAHOCR700030156). Seven females under the age of 45 and capitally convicted at the Old Bailey in the 1790s of stealing from a dwelling house were subsequently pardoned on the condition of transportation.

55. LL, “Criminal Registers” (NAHOCR700020088); OBP, January 11, 1797 (t17970111-37); and TNA, HO 47/21, ff.39-40, HO 13/11, ff.112-113.

56. Eighty percent of such pickpockets were pardoned on condition of imprisonment, as against 29% of shoplifters, 20% of burglars, and 9% of robbers.

57. OBP, September 11, 1793 (t17930911-7); LL, “Criminal Registers” (NAHOCR700070032); and TNA, HO 13/12, ff.232.

58. LL, “Criminal Registers” (NAHOCR700040102).

59. OBP, January 11, 1797 (t17970111-10, t17970111-9), October 24, 1798 (t17981024-10); LL, “Criminal Registers” (NAHOCR700020103); and BCTR (record number 21111957480002061).

60. This might not have been Clayton's first appearance at the Old Bailey: three other prosecutions were brought against individuals named George Clayton in the immediate years prior to 1793, but it has not been possible to verify if these were the same man.

61. LL, “Criminal Registers” (NAHOCR700070040, NAHOCR700030034, NAHOCR700040036, NAHOCR700040044); OBP, October 30, 1793 (t17931030-58), October 28, 1795 (t17951028-67), January 10, 1798 (t17980110-58), February 20, 1799 (t17990220-22), October 29, 1800 (t18001029-59), May 20, 1801 (t18010520-54), January 13, 1802 (t18020113-32), July 14, 1802 (t18020714-9), and October 26, 1803 (t18031026-41).

62. For the woeful conditions in London's prisons in the later 1770s and 1780s, see Hitchcock and Shoemaker, London Lives, 339–40.

63. This is based upon nominal record linkage between the OBP and the London coroners' inquests. The numbers of such convicts who had been sentenced to death in each of those years was: five in 1788, eleven in 1789, nine in 1790, and none in 1791.

64. This pattern is more widely evident in the numbers of criminals (including those tried by other courts in the metropolis) who died in London's prisons in the later 1780s and 1790s: in total, the coroner for London and Southwark investigated the deaths of 42 offenders in prison in 1788, 119 in 1789, 84 in 1790, 20 in 1791, and an average of 41 each year between 1792 and 1799 inclusive. This count is based on the indexes to the London and Southwark coroners' inquests held at the London Metropolitan Archives (hereafter LMA), CLA/041/IQ/02/055-056, in addition to a study of the original inquests for Newgate: LMA, CLA/041/PI/01/001-002.

65. OBP, July 4, 1798 (t17980704-52); LL, “Criminal Registers” (NAHOCR700030072); and TNA, HO 13/12, ff.37.

66. OBP, December 2, 1795 (t17951202-26); LL, “Criminal Registers” (NAHOCR700020059); and LL, “City of London Coroners' Inquests” (hereafter “Coroners' Inquests”), (LMCLIC650120175).

67. OBP, October 30, 1793 (t17931030-69); and LL, “Criminal Registers” (NAHOCR700070048), “Coroners' Inquests” (LMCLIC650060895).

68. King, Crime, Justice, and Discretion, 267.

69. Garton, Stephen “The convict Origins debate: Historians and the problem of the ‘criminal class,’” Australian and New Zealand Journal of Criminology 24 (1991), 66–82 CrossRefGoogle Scholar.

70. A. G. L. Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London: Faber and Faber, 1966), 150.

71. David Meredith, “Full circle? Contemporary views on transportation,” in Convict Workers: Reinterpreting Australia's Past, ed. Stephen Nicholas (Cambridge: Cambridge University Press, 1988), 14. For the selection criteria, Meredith cites Parliamentary Papers (hereafter PP), “Report from the Select Committee on Convict Establishments,” 1810, IV, C348, 16 (Originally published in 1798 and reprinted in 181)]; PP, “Report from the Select Committee on Secondary Punishments,” 1831, VII, C276; and PP, “Report from the Select Committee on Gaols and Houses of Correction,” 1835, XI, C438, 277.

72. Deborah Oxley, Convict Maids: The Forced Migration of Women to Australia (Cambridge: Cambridge University Press, 1996), 60. See also: Anne Summers, Damned Whores and God's Police: The Colonization of Women in Australia (Melbourne: Penguin Books, 1994).

73. Maxwell-Stewart, Hamish, Cracknell, Matthew, and Inwood, Kris, “Height, Crime and Colonial History,” Law, Crime and History 5 (2015): 41 Google Scholar

74. PP, “Report from the Select committee on Transportation,” 1812 (314), 77–78 (16 for index)

75. Ibid. See also Meredith, “Full Circle?” and Oxley, Convict Maids.

76. Although convict transportation to Australia ran uninterrupted for 80 years (1787–1868), it is important to acknowledge that each colony had its own systems, requirements, and procedures when it came to receiving felons from the other side of the world. Although there is significant crossover in the convict histories of both New South Wales and Van Diemen's Land, each represents a unique era in transportation history. Similarly, the final years of convict transportation to Western Australia differed significantly from that to earlier colonies. However, the experiences and records of each colony combined have much to teach about the overall scope and function of penal transportation in the long nineteenth century.

77. Oxley, Deborah and Meredith, David, “Contracting Convicts: The Convict Labour Market in Van Diemen's Land 1840–1857,” Australian Economic Review 45 (2005): 47 Google Scholar.

78. Godfrey, Barry and Cox, David, “The Last Fleet: Crime, Reformation, and Punishment in Western Australia after 1868,” The Australian and New Zealand Journal of Criminology 41 (2008): 240 Google Scholar.

79. Babette Smith, Australia's Birthstain (Crows Nest: Allen and Unwin, 2009), 78.

80. Robert Hughes, The Fatal Shore (London: Collins Harvill, 1987), 142.

81. Smith, Australia's Birthstain, 108.

82. Ibid.

83. Maxwell-Stewart, Hamish, “Convict Transportation from Britain and Ireland 1615–1870,” History Compass 8 (2010): 1224 Google Scholar.

84. Oxley, Convict Maids, 60.

85. A total of 827 individuals were traced to a BCTR entry (some also have a convict indent attached) and only twenty-eight were connected to a convict indent alone.

86. Shaw, Convicts and the Colonies, 150.

87. Oxley, Convict Maids, 60.

88. OBP, February 15, 1797 (t17970215-32).

89. TNA, HO 47/24, ff.353–6.

90. TNA, HO 47/12, ff.134–6.

91. TNA, HO 47/15, ff.13–21, 126–9.

92. TNA, HO 47/15, ff.201–4, 122–5.

93. OBP, April 30, 1794 (t17940430-30); and LL, “Criminal Registers” (NAHOCR700020088). Knuckey was eventually sentenced to death after being found guilty of returning from transportation: OBP, September 14, 1796 (t17960914-2).

94. OBP, September 12, 1792 (t17920912-29).

95. LL, “Criminal Registers” (NAHOCR700030010).

96. Hughes, The Fatal Shore, 161.

97. TNA, HO 47/19, ff.20-3; and LL, “Criminal Registers” (NAHOCR700010043).

98. TNA, HO 47/19, ff.73-6; and LL, “Criminal Registers” (NAHOCR700010105).

99. Ibid.

100. TNA, HO 47/17, ff.173-82.

101. TNA, HO 47/19, ff.98-100; and LL, “Criminal Registers” (NAHOCR700010113).

102. Ibid.

103. OBP, February 17, 1796 (t17960217-49).

104. LL, “Criminal Registers” (NAHOCR700020117).

105. TNA, “Home Office: Convict Prison Hulks: Registers and Letter Books,” HO 9/8.

106. OBP, October 31, 1792 (t17921031-53).

107. BCTR (record number 21131977790002061).

108. OBP, October 31, 1792 (t17921031-26, t17921031-29).

109. LL, “Criminal Registers” (NAHOCR700060025, NAHOCR700060029).

110. OBP, July 12, 1797 (t17970712-41).

111. LL, “Coroners' Inquests” (LMCLIC650120192).

112. Ibid.

113. OBP, February 20, 1793 (t17930220-4).

114. LL, “Criminal Registers” (NAHOCR700060101).

115. Sydney Webb, English Prisons under Local Government (Longman: London, 1922), 45–46.

116. Forbes, Thomas, “Coroners' Inquisitions on the deaths of Prisoners in the Hulks at Portsmouth England in 1817–1827,” Journal of the History of Medicine and Allied Sciences 33 (1978): 366 Google Scholar.

117. Ibid., 358.

118. OBP, October 31, 1792 (s17921031-1).

119. LL, “Criminal Registers” (NAHOCR700060043).

120. OBP, December 4, 1793 (t17931204-60).

121. LL, “Criminal Registers” (NAHOCR700030198).

122. OBP, September 11, 1793 (t17930911-31).

123. LL, “Criminal Registers” (NAHOCR700070133).

124. OBP, October 31, 1792 (t17921031-38).

125. LL, “Criminal Registers” (NAHOCR700070016).