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Punishments at the Old Bailey

Late 17th Century to Early 19th Century

This article describes the types of punishments imposed on convicts at London's central criminal court from the late 17th century to the beginning of the 19th century, as detailed in the Proceedings.

Contents of this Article


Introduction

The judges had a choice of a wide range of punishments to impose on convicts during this period, though the options were often limited by choices made at earlier stages in the judicial process.

Felonies defined by common law were punishable by hanging, while misdemeanours were punishable by a range of non-capital punishments. Offences defined by statute were normally only punishable by the punishment prescribed by the statute. The punishments available in any particular case were thus circumscribed by the legal status of the offence with which the defendant was charged (which in some cases could be influenced by choices made by the victim or the grand jury) and then convicted (offences were often reduced by the petty jury through partial verdicts).

Many defendants were given more than one punishment. This particularly applies to those sentenced to the pillory, imprisonment, whipping, fines and providing sureties for good behaviour.

Because the actual punishment a convict received often differed from the original sentence, it is worth searching later sessions by the name of the defendant to see if the sentence was mitigated. It is also possible to search separately on the crime, verdict and punishment search page for information about pardons or actual executions. Although this information was not consistently reported in the Proceedings, there are regular reports of pardons from June 1739 and of executions from April 1743.

 

 

The Death Penalty and Mitigating Circumstances

Execution of Lord Ferrers at Tyburn,  1760.  Ferrers was convicted of murdering his steward in a trial in the House of Lords.  He is shown hanging from the gibbet, surrounded by soldiers and spectators, with the Middlesex countryside in the background.  From Walter Thornbury, Old and New London: A Narrative of Its History, Its People, and Its Places (5 vols, London, 1873-78), vol.5, p.209. Reproduced courtesy of and with thanks to the University of Sheffield. Although the large number of statutes in this period which specified the death penalty (the "bloody code") meant that the vast majority of the people tried at the Old Bailey in this period could be sentenced to death (one could be hanged for stealing only a handkerchief or a sheep), judicial procedures prevented a blood bath by providing ways that sentences could be mitigated for less serious offences.

Through partial verdicts, juries reduced the charges against many of the defendants they convicted. Through the mechanisms of benefit of clergy and pardons many more defendants found guilty of capital offences were spared the death penalty and sentenced only to branding, transportation, imprisonment, or received no punishment at all.

In making these decisions, consideration was given to the defendant's character, the nature of the offence, the strength of the evidence against him or her, and the state of crime at the time (if it was believed a crime wave was occurring, the defendant was more likely to be hanged to deter others).

Misdemeanours

Those found guilty of misdemeanours could be punished with a fine, whipping, the pillory, imprisonment, or asked to provide sureties for good behaviour.


New Forms of Punishment

Increasing reluctance to use the death penalty in this period (except for the most serious cases), together with concern that those who received benefit of clergy were let off too lightly, led to the development of new types of punishments for felons in the eighteenth century, notably transportation and imprisonment.

These new punishments reflect two trends in the evolution of strategies for punishment in this period: first, there was a shift from physical punishments such as whipping, branding, and hanging to attempts to reform the defendant through transportation and imprisonment; and second, punishments became less public, as the spectacles of public hangings at Tyburn, the pillory, and public whipping through the streets were replaced by hanging outside Newgate, private whipping, imprisonment, and transportation to foreign lands.

Bibliography

Pardons

Not all punishments sentenced by the Old Bailey judges were actually carried out. Through the mechanism of a royal pardon, many death sentences, as well as some other sentences, were either not carried out (a free pardon), or commuted to lesser punishments (a conditional pardon), normally branding or transportation. All capital sentences from the Old Bailey were reviewed by the King and his cabinet following reports from the Recorder of London; those convicts who were not pardoned could have their cases reviewed again if petitions for mercy were received from them or their family and friends.

In addition to pardons for specific crimes, periodically in the late seventeenth century defendants were able to claim the benefit of general royal pardons, proclaimed by the King or passed by Parliament for all offences committed before a certain date (though some offences, such as murder, were excluded).

From 1739 to 1796 the names of convicts pardoned are regularly provided at the end of subsequent editions of the Proceedings. To find this information use the crime, verdict and punishment search page, and search by punishment type 'pardoned' and by defendant surname.

In many cases, however, evidence concerning pardons is only available in manuscript sources (notably reports from the Recorder of London and petitions) kept in the London archives. For such evidence, consult the explanation of associated records. By looking at manuscript sources, where available, you should be able to find out more information about the case, including the actual punishment (if any) inflicted on the convict.

Throughout most of the eighteenth century, around 50-60% of convicts sentenced to death were pardoned. Loss of faith in the merits of the death penalty in the early nineteenth century contributed to an increase in the proportion pardoned to around 90%.

Bibliography

Benefit of Clergy

Through the mechanism of benefit of clergy, many defendants found guilty of certain felonies were spared the death penalty and were given a lesser punishment. Dating back to the middle ages, benefit of clergy was originally a right accorded to the church to punish its own members should they be convicted of a crime. In this instance the court did not prescribe any punishment for the defendant and instead handed him over to church officials.

Since it was difficult to prove who was affiliated with the church, convicts who claimed benefit of clergy were required to read a passage from the Bible. Judges usually chose verses from the 51st Psalm, which was termed the "neck verse", since it saved many people from the death penalty.

As literacy became more common outside the church, the practice gradually developed of permitting all men convicted of allowable felonies to be permitted benefit of clergy if they could read the "neck verse". This test was a flexible one, and judges could be lenient or strict in their expectations of what was an acceptable level of reading, depending on their views concerning the desirability of imposing the death penalty in the specific circumstances. In 1623 women found guilty of the theft of goods less than ten shillings were allowed benefit of clergy, and in 1691 they were granted the privilege on the same terms as men.

In 1706 the reading test was abolished and benefit of clergy became automatic for any offence which had not been excluded from this privilege. Until 1779 the recipients of benefit of clergy were branded on the thumb in order to ensure that the benefit could not be claimed more than once.

Concern that too many serious offenders were getting off too lightly, however, led to the passage of several statutes in which specific offences were removed from benefit of clergy. In the sixteenth century murder, rape, highway robbery, burglary, horse-stealing, pickpocketing, and theft from churches, were deemed non-clergyable.

During the late seventeenth and eighteenth centuries concern over levels of property theft led to several other forms of theft being added to this list, including housebreaking; the theft of goods worth more than 40 shillings from a dwelling house; shoplifting of goods worth more than 5 shillings; and sheep and cattle stealing. A death sentence in such cases therefore became automatic, which explains why juries so often reduced the value of stolen goods through the mechanism of the partial verdict.

Between 1706 and 1718 some defendants allowed benefit of clergy were sentenced to up to two years hard labour in a house of correction. The 1718 Transportation Act allowed the courts to sentence those allowed benefit of clergy to Transportation.

Branding ended in 1779, but benefit of clergy remained for some offences until the rationalisation of the criminal law in the 1820s, when it was abolished.

Bibliography

 

 

Branding in the Old Bailey Courthouse.  Joseph Relph, mariner, convicted of manslaughter in December 1778, is being branded on the hand, while spectators watch. Reproduced courtesy of and with thanks to Mark Herber from Criminal London: A Pictorial History from Medieval Times to 1939 (Chichester, 2002).Branding

Convicts who successfully pleaded benefit of clergy, and those found guilty of manslaughter instead of murder, were branded on the thumb (with a "T" for theft, "F" for felon, or "M" for murder), so that they would be unable to receive this benefit more than once. The branding took place in the courtroom at the end of the sessions in front of spectators. It is alleged that sometimes criminals convicted of petty theft, or those who were able to bribe the executioner, had the branding iron applied when it was cold.

For a short time, between 1699 and January 1707, convicted thieves were branded on the cheek in order to increase the deterrent effect of the punishment, but this rendered convicts unemployable and in 1707 the practice reverted to branding on the thumb. It is possible to search separately to find those sentenced to be branded on the cheek.

The last convict sentenced to branding at the Old Bailey was in 1789.

Bibliography

Death

Many, in fact most, death sentences were not carried out. Through benefit of clergy, use of pardons, and respited sentences due to pregnancy or in order to perform military or naval duty, many of those sentenced to death were not actually executed. Since these mitigations often took place after the Proceedings were published, this information is usually not included in the trial texts, though it sometimes can be found in the texts for subsequent sessions. Names of those executed are regularly reported in the summaries of punishments provided at the end of each sessions between 1743 and 1792. Where this information was provided in the same edition of the Proceedings, we have inserted a note to this effect at the end of the trial. To determine if any information about executions was provided in a subsequent edition of the Proceedings, it is necessary to use the crime, verdict and punishment search page, where you can search by punishment type 'executed' and by defendant surname.

By the end of our period there were serious reservations about the use of the death penalty for any but the most serious offences. It was removed from pickpocketing in 1808, and from many more offences in the 1820s and 1830s. But the death penalty was still regularly imposed for murder, violent assault, burglary, housebreaking, robbery, and coining.

Death Respited for Pregnancy

Women who claimed they were pregnant at the time they were sentenced to death could "plead their belly". Such women (and there were many) were then examined by a jury of matrons (chosen from women present in the courtroom), and, if found to be "quick with child" (if movement could be detected, signalling the beginning of life), their punishment was respited until after the baby was born. In principle, the punishment could then be carried out, but in practice concern for the cost of caring for the newborn child meant that the mother was normally subsequently pardoned. The eventual outcome of such cases is not necessarily recorded in the Proceedings, but it is worth searching later sessions for the convict's name. The verdicts of the jury of matrons were sometimes recorded in the punishment summaries.

Hanging

Most defendants sentenced to death were to be hanged at Tyburn (where Marble Arch stands today). Execution was a public spectacle, meant to act as a deterrent to crime: convicts were drawn in a cart through the streets from Newgate, and, after they were given a chance to speak to the crowd (and, it was hoped, confess their sins), they were hanged, surrounded by huge crowds, as depicted in plate 11 of William Hogarth's Industry and Idleness.

The convict was placed in a horse drawn cart, blindfolded, had the noose placed around his/her neck, and then the cart pulled away. Until the introduction of a sharp drop in 1783, this caused a long and painful death by strangulation (friends of the convict often helped put them out of their misery by pulling on their legs).

After the execution there were sometimes struggles for possession of the corpse between assistants to the surgeons, who wanted it for teaching anatomy, and friends of the convict, who wanted to give it a proper burial. Concern at the disorder which occurred at such scenes led to the transfer of executions in 1783 to outside Newgate Prison.Tom Idle is drawn in a cart, accompanied by a Wesleyan minister, to Tyburn.  The Ordinary of Newgate is in a separate coach in front of him.  A vast and disorderly crowd, including pickpockets, hawkers, and a woman selling Tom's 'Last Dying Speech' has assembled to watch.  The three-cornered gibbet where he will be hanged is visible in the background. William Hogarth, 'Industry and Idleness', plate 11, 'The Idle Prentice Executed at Tyburn', (1747).  Reproduced courtesy of Tim Hitchcock.

Some of the most serious offenders were hanged near the place of their crime, as a lesson to the inhabitants of that area. Others were punished by more brutal punishments:

Burned at the Stake

Women found guilty of either treason or petty treason were sentenced to be burned alive at the stake, though it is thought that merciful executioners sometimes strangled women with a cord before lighting the fire. Burning at the stake was abolished in 1790.

Drawn and Quartered

Men found guilty of treason were sentenced to be drawn to the place of execution on a hurdle, hanged, cut down while still alive, and then disembowelled, castrated, beheaded and quartered. It was alleged that merciful executioners allowed men to die on the gallows before being dismembered. This punishment was rare during our period, but occasionally those convicted of coining and petty treason were sentenced to be drawn on a hurdle only, but not quartered. For examples of the latter, search by death, or death by hanging.

Death with Dissection and Hanging in Chains

Tom Nero, a pauper, has been executed for murder and his body is being dissected in the Surgeon's Hall.  Below the surgeon's blade Tom's intestines fall out towards a pail, which contains another man's head. William Hogarth, 'The Four Stages of Cruelty', plate 3, 'The Reward of Cruelty' (1751). Reproduced courtesy of Tim Hitchcock.An act of 1752, "for better preventing the horrid crime of murder", dictated that those found guilty of murder and hanged should then be delivered to the surgeons to be "dissected and anatomised" or hung in chains. By increasing the terror and the shame of the death penalty, this was meant to increase the deterrent power of capital punishment.

Bibliography

Fines

Early in the period fines were used primarily for the punishment of misdemeanours. However, in 1779 a clause in the Penitentiary Act allowed a fine to be imposed in lieu of branding. Thereafter fines were frequently used, often in conjunction with a term of imprisonment, for manslaughter, petty larceny, and simple grand larceny. Judges had the flexibility to vary the amount according to the severity of the offence and the status of both the victim and the convict; amounts varied from less than a shilling to hundreds of pounds. Non-payment of fines led to incarceration in jail until the fine was paid.

Bibliography

Forfeiture of Lands and Goods

Technically all those found guilty of a felony were required to forfeit all their goods to the crown. In practice, juries routinely reported (fictitiously) that the convict had 'no goods' and thus nothing to forfeit. Very occasionally, however, judges explicitly sentenced convicted felons to forfeit all their goods and lands to the King, as well as any goods and land they might subsequently acquire during their lives.

Bibliography

Imprisonment

Early modern prisons were typically used for holding defendants awaiting trial and convicts awaiting punishment--imprisonment was not perceived as a form of punishment itself. Occasionally, however, even early in the period, convicts were sentenced to a period of imprisonment, usually in addition to some other penalty, such as whipping.

In addition, a statute in 1706 allowed judges to sentence defendants allowed benefit of clergy to up to two years hard labour in a house of correction (until then, houses of correction had only been used to punish the misdemeanours of the poor). This punishment was used until 1718, when most convicts who were allowed benefit of clergy were sentenced to transportation instead.

Imprisonment as Reform

The hulk 'Justitia' (1776), showing convicts at work on shore with the ship in the background. Reproduced courtesy of and with thanks to Mark Herber from Criminal London: A Pictorial History from Medieval Times to 1939 (Chichester, 2002).From the 1770s new attitudes towards imprisonment developed. It was thought that, if redesigned and given new regimens, prisons could be used to reform offenders, so that they could re-enter the community as productive citizens. Use of imprisonment was further stimulated by the suspension of transportation following the outbreak of the American Revolution.

An Act in 1776, intended to address the problems resulting from the end of transportation, allowed judges to sentence male offenders who were liable to transportation to hard labour improving the navigation of the Thames by dredging it. Although the Act did not specify where such offenders were to be kept, they came to be incarcerated in old ships anchored on the Thames, which became known as the hulks. The work took place on shore.

The Act also allowed the judges to sentence women, and men who were incapable of working on the river, to a term of hard labour in a house of correction.

In 1779 Parliament passed the Penitentiary Act, which authorised the building of one or more national penitentiaries with strict discipline and hard labour. Although the buildings were never built, the courts continued to sentence convicts to terms of imprisonment, and improvements to London's prisons, and changes to their regimes, took place incrementally but erratically.

The Water Engine, Coldbath Fields by Augustus Pugin and Thomas Rowlandson.  This aquatint shows inmates at hard labour operating a water pump with the windows of the prison cells in the background. From W. H. Pyne and W. Combe, The Microcosm of London, or London in Miniature (3 vols, London, 1904), vol.2, facing page 212.  Reproduced courtesy of and with thanks to the University of Sheffield.In 1794 the new Coldbath Fields House of Correction used the controversial system of solitary confinement to attempt to get convicts to reflect on their sins and reform. In 1816 conditions for women prisoners in Newgate were reformed. In the same year Millbank Penitentiary was built on the banks of the Thames (where the Tate Britain museum stands today), which also used solitary confinement.

By looking at the actual text of the Proceedings, you will normally be able to determine the length of the sentence and, sometimes, the prison in which the convict was sentenced to be incarcerated. You will find that sentences often combined imprisonment with other punishments. Those committed to the two institutions used most frequently, Newgate Prison and the house of correction, can be searched for separately. In addition, it is possible to search for those committed to the Penitentiary, who were all youths between the ages of 11 and 21 who had been sentenced to transportation but were deemed not yet old enough to be sent. All those sentenced to hard labour, whether in the house of correction, the hulks, or in prison, have been categorised together under "hard labour".

Hard Labour

Hard labour was meant to contribute to the reformation of offenders by teaching them to be industrious, but the punishment was also meant to deter others from committing crime. Prisoners in houses of correction were typically set to beating hemp; those imprisoned sometimes worked a water pump (see image); while men incarcerated in the hulks worked on dredging the Thames or in the naval dockyards. Others were sentenced to work on ballast lighters.

Bibliography

Military/Naval Duty

By sending offenders into their majesties' service, the court not only contributed to the armed forces, but they also exiled undesirable characters.

In some cases the prisoner was sentenced to a term of service in the army or navy. In others, the original sentence was withdrawn because the prisoner agreed to serve, or a defendant who had been sentenced to death was pardoned on condition of service (made possible by the Mutiny Act of 1705).

Bibliography

Pillory

People convicted of notorious crimes such as attempted sodomy, seditious words, extortion, fraud, and perjury were punished publicly in the pillory as a way of destroying the reputation of the convict and signalling public distaste for the crime.

Christopher Atkinson in the Pillory (1783).  Atkinson, convicted of fraud, is shown walking around the pillory in front of the Corn Exchange.  His hat has been removed and placed on top of a central pole, around which the pillory turned.  He is surrounded by constables with staves and spectators, both on the street and looking through nearby windows. From Walter Besant, London in the Eighteenth Century  (London, 1902), p.520. Reproduced courtesy of and with thanks to the University of Sheffield.Set up in busy streets or open spaces, such as Cheapside or Charing Cross, where crowds could easily gather, the culprit (most were men) was placed on a platform with his arms and head placed through holes in the wooden structure. He was normally required to stay there one hour.

The pillory turned so that crowds on all sides could get a good view, and the crowd expressed their disapproval of the offence by pelting the offender with rotten eggs and vegetables, blood and guts from slaughterhouses, dead cats, mud and excrement, and even bricks and stones. Some died from the abuse, despite increasing efforts by constables to protect the convict, by forming a ring around the pillory.

In some cases of seditious words, however, the crowd applauded the convict, pelted him with flowers, and collected money to present to him after his release.

Approximately five to ten people a year were punished in this way in London, but concerns about disorder and the subversion of the purpose of the punishment meant that after 1775 few people were pilloried for riot, seditious words, or any felony. An 1816 statute restricted the pillory to perjury only and the punishment was abolished in 1837. The last woman to be sentenced to the pillory at the Old Bailey was in 1762.

Bibliography

Provide Sureties for Good Behaviour

Convicts were sometimes required to find sureties, men of property who were willing to guarantee the convict's future good behaviour by risking a large sum of money. If the condition was violated, the money was forfeited to the king. The text of the Proceedings normally specifies the length of time of this promise. Sentences frequently combined this punishment with others, such as imprisonment, a fine, and the pillory.

Defendants who were found not guilty were also sometimes given this sentence, if it was thought they had the potential to commit a crime in the future.

Bibliography

Transportation

The first major innovation in eighteenth-century penal practice was the extensive use of transportation. Although there was some idea that transportation might lead to the reformation of the offender, the primary motivations behind this punishment were deterrence and the exile of hardened criminals from society.

Convicts sentenced to transportation being led to a boat at Blackfriars Bridge.  They include some children and are chained together by their necks. Reproduced courtesy of and with thanks to Mark Herber from Criminal London: A Pictorial History from Medieval Times to 1939 (Chichester, 2002).Although many convicts were transported in the seventeenth century, it had to be done at their own expense or at the expense of merchants or shipowners. In the early eighteenth century there was a desire to extend transportation as a way of creating a more effective alternative to the death penalty (in terms of deterring crime) than benefit of clergy and whipping. In 1718 the first Transportation Act allowed the courts to sentence felons guilty of offences subject to benefit of clergy to seven years transportation to America. In 1720 a further statute authorized payments by the state to the merchants who contracted to take the convicts to America.

The first Transportation Act also allowed those guilty of capital offences and pardoned by the king to be sentenced to transportation, and it established returning from transportation as a capital offence.

Under the terms of the Transportation Act, those sentenced to death could be granted a royal pardon on condition of being transported for fourteen years or life. From 1739, a number of such cases appear in the Proceedings.

In 1776 transportation was halted by the outbreak of war with America. Although convicts continued to be sentenced to transportation, male convicts were confined to hard labour in hulks on the Thames, while women were imprisoned. Transportation resumed in 1787 with a new destination: Australia. This was seen as a more serious punishment than imprisonment, since it involved exile to a distant land.

In the early nineteenth century, as part of the revisions of the criminal law, transportation for life was substituted as the maximum punishment for several offences which had previously been punishable by death.

Bibliography

A man has been stripped to the waist and is attached to the back of a horse-drawn cart.  A crowd of spectators is watching, with urban housing forming the backdrop. 'The Manner of Whipping at the Carts Tayle for petty Larceny and other Offences' , from John Seller, A Booke of the Punishments of the Common Laws of England (1678?). Reproduced courtesy of and with thanks to the Corporation of London Libraries and Guildhall Art Library.Whipping

Offenders (mostly those convicted of petty larceny) were sentenced to be stripped to the waist and flogged "at a cart's tail" along a length of public street, usually near the scene of the crime, "until his [or her] back be bloody".

Publicity was traditionally an essential feature of this punishment, but occasionally even in the late seventeenth century the courts ordered that the punishment should be carried out in prison or a house of correction rather than on the streets. From the 1720s courts began explicitly to differentiate between private whipping, which took place inside or immediately outside Newgate Prison, a house of correction, or the Old Bailey; and public whipping, which was carried out in the traditional way.

'Flogging at the Old Bailey' (1809).  An example of a 'private whipping'.  A man with his arms placed in the stocks and stripped to the waist is about to be whipped, while court officials and a small number of spectators look on.  From Walter Besant, London in the Eighteenth Century  (London, 1902), p.350. Reproduced courtesy of and with thanks to the University of Sheffield.

Over the course of the eighteenth and early nineteenth centuries the proportion of whippings carried out in public declined, but the number of private whippings increased after 1772 owing to a loss of faith in the alternative punishments of transportation and the death penalty. The public whipping of women was abolished in 1817 (after having been in decline since the 1770s) and that of men ended in the 1830s.

Bibliography

Not Punished

In addition to benefit of clergy, pardons, respites for pregnancy, and pardons on condition of military or naval duty, there are a number of other reasons why a convicted defendant might not be formally sentenced:

  • The convict died, fell ill, or was rescued from the court or prison by his friends before s/he could be sentenced.
  • The court decided to postpone ('respite') the sentence until a later sessions. In this case you may be able to find additional information by searching for the defendant's name in later sessions.
  • The court agreed that, in lieu of a formal punishment, the convict would perform some act, such as serving as a soldier for the East India Company, or agreeing to work for an employer. Young convicts were sometimes sent to the Marine Society (established in 1756) for training at sea, the Philanthropic Society (established in 1788) for vocational training, or the Refuge for the Destitute (founded in 1806).
  • Those recommended by the jury for mercy were sometimes simply discharged without punishment, or sent to the care of their master or relatives.

In many late seventeenth-century editions of the Proceedings information about punishments was often simply not provided.

Introductory Reading

  • Beattie, J. M., Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford, 2001), Part II
  • Gatrell, V. A. C., The Hanging Tree: Execution and the English People 1770-1868 (Oxford, 1994)
  • Sharpe, J. A., Judicial Punishment in England (London, 1990)

See also the full bibliography.

For a comprehensive bibliography of modern historical writings on London see
London's Past Online.


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