Punishments, 1780-1925

[Anonymous], A Fleet of Transports under Convoy (1781). British Museum Prints and Drawings, number 1935,0522.1.196. © Trustees of the British Museum.

This page describes the types of punishments imposed on convicts at the Old Bailey from the late eighteenth century to the early twentieth century.

Introduction

For those convicted at the Old Bailey, judges could choose from a wide range of punishment sentences in this period, though their options were often limited, both by statute and by choices made at an earlier stage in the judicial process. It is important to remember that the actual punishments convicts received often differed from their original sentences. While punishment sentences are provided in the Old Bailey Proceedings, for the actual punishments a convict received it is necessary to consult their Life Archive.

Felonies defined by common law were originally punishable by hanging, but increasingly from the middle of the eighteenth century, statute law curtailed the use of the death penalty. Misdemeanours were punishable by a range of non-capital punishments. Normally, offences defined by statute could only be punished as prescribed by the relevant legislation. 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 was influenced in turn by the choices made by the victim or the grand jury). Juries frequently manipulated the punishment through the use of partial verdicts.

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

A gradually-growing reluctance to use the death penalty in the eighteenth century (except for the most serious cases) encouraged the development of alternative forms of punishment. The criminal law reforms of the nineteenth century, which abolished the death penalty for many crimes, led in the same direction. As a result, new types of punishments for felons, notably transportation and imprisonment, were created and eventually came to take on an ever-growing role in the sentencing of criminals.

These new punishments reflect two trends in the evolution of strategies for punishment. 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 spectacle of public hangings at Tyburn, the pillory and public whipping through the streets was replaced by hanging outside and then inside Newgate, private whipping, transportation to foreign lands and imprisonment.

[Anonymous], View of an Execution before the Debtor's Door of Newgate (1809). From Wikimedia Commons.

Death

A large number of eighteenth-century statutes specified death as the penalty for minor property offences (the "bloody code"), meaning that the vast majority of the people tried at the Old Bailey could be sentenced to hang (one could be executed for stealing a handkerchief or a sheep). Nevertheless, judicial procedures prevented a blood bath by ensuring that sentences could be mitigated, or the charge redefined as a less serious offence.

Through partial verdicts, juries reduced the charges against many convicted defendants to a non-capital offence. Through the mechanism of pardons many more defendants found guilty of a capital offence were spared the death penalty and subjected instead to punishments such as branding (up to 1789), transportation or imprisonment. Many received no punishment at all.

The standard method of capital punishment was by hanging. Execution was a public spectacle, meant to act as a deterrent to crime. Until 1783, most defendants were hanged at Tyburn (where Marble Arch stands today). 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. In 1783, the procession to Tyburn was abolished and for the next eighty-five years hangings were staged outside Newgate Prison. Although these executions were expedited by the use of the sharp drop, they were still very public occasions. In 1868, concern about public disorder led to the abolition of public executions altogether, and subsequent hangings were transferred inside the prison.

Women who claimed they were pregnant at the time they were sentenced to death could "plead their belly". Such women 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 sympathy for the newborn child (or concern for the cost of caring for it) meant that the mother was often pardoned. Successful pregnancy pleas are found infrequently in the Old Bailey Proceedings after 1760. After 1800, there are few recorded cases of women even making this plea, and in those cases medical authorities were often summoned to advise the matrons. The plea last appears in the Old Bailey Proceedings in the trial of Emma Pleasance in 1880.

Over the course of the nineteenth century, use of the death penalty was increasingly restricted to the most serious offences. It was removed from pickpocketing in 1808, and from many more offences in the 1820s and 1830s. By the 1840s, only those found guilty of the most serious offences (murder, wounding, violent theft, arson, sodomy) were sentenced to death (though only murderers were actually executed), and the 1861 Offences Against the Persons Act abolished the death penalty for all offences except for murder and High Treason.

[Anonymous], "Catherine Hayes burnt for the murder of her husband", from William Jackson, The New and Complete Newgate Calendar (1795). Wellcome Images, reference EPB 30093/B. © Wellcome Library, London.

Execution with Additional Cruelty

Women found guilty of either treason or petty treason were sentenced to be burned alive at the stake, though executioners usually strangled women with a cord before lighting the fire. Burning at the stake was abolished in 1790 and replaced by drawing and hanging.

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. 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. The last convicts to be sentenced at the Old Bailey to be drawn and quartered were the Cato Street conspirators in 1820, but in the event decapitation was the only part of the grisly ceremony that was actually carried out.

The Murder Act of 1752, "for better preventing the horrid crime of murder", dictated that the bodies of those found guilty of murder and hanged should either 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, these practices were meant to increase the deterrent effect of capital punishment. They were abolished in 1832 (dissection) and 1834 (hanging in chains).

Transportation

Efforts to find alternatives to the death penalty date from the seventeenth century, not out of principled opposition but because it was believed that the punishment failed to deter others from committing crimes. There was a need to find suitable and substantial "secondary" punishments to punish those who found guilty of serious, but not the most egregious, offences.

The first major innovation was the substantial expansion of the use of transportation. Although it was believed that transportation might lead to the reformation of the offender, the primary motivations behind this punishment were a belief in its deterrent effect, and a desire to simply remove hardened criminals from society. Following the passage of the 1718 Transportation Act, some 57,000 convicts were sent to the American colonies.

In 1776, transportation was halted by the outbreak of war with America. Following a desperate search for a new destination, 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.

Opposition to transportation mounted in the 1830s, however, with complaints that it failed to deter crime, did not lead to the reformation of the convicts, and that conditions in the convict colonies were inhumane. There was also criticism from colonists in Australia. The number of convicts sentenced to transportation began to decline in the 1840s. Transportation was theoretically abolished by the Penal Servitude Act of 1857, which substituted penal servitude for all transportation sentences, but some convicts were still sent to Western Australia. The last convicts to be sent left in 1867.

For information on the experiences of transported convicts, see the separate page on Transportation.

Imprisonment

A growing desire to reform convicts rather than just punish them led to development of imprisonment as a punishment for serious offences from the late eighteenth century, manifested in the passing of the Penitentiary Act in 1779. While the first Penitentiary, Millbank, did not open until 1816, with the end of transportation to America in 1776, an increasing number of convicts were punished by incarceration in the prisons. The traditionally-open nature of pre-modern prisons was replaced by separate cells for prisoners and various combinations of the "silent" and "solitary" prison regimes. Prisoners were put to hard labour and subject to religious instruction.

In the late 1840s, the progressive stage system (originally developed in Australia) was introduced, whereby prisoners started their sentences with solitary confinement at hard labour, and then moved to a public works prison where they worked in quarries or on roads, before release on a prison licence, if their conduct was good. Growing opposition to transportation, leading up to the 1857 Penal Servitude Act which effectively abolished it, led not only to the growing use of imprisonment but also changes to its legal framework in order to limit the increase in the size of the prison population. The 1853 Penal Servitude Act established tickets of leave (prison licences) for convicts in the last stage of their sentence, and the 1855 Criminal Justice Act downgraded the offence of simple larceny (theft of goods valued under five shillings) to an offence subject to summary jurisdiction, and, if they pleaded guilty, to incarceration up to six months in houses of correction or "common gaols" (rather than the convict prisons).

As this suggests, convicts were incarcerated in a number of different prisons. Some stayed in Newgate Prison, which functioned both as a holding prison for convicts awaiting trial or execution and as a place of punishment. Those sentenced to be punished in Newgate tended to be young people serving a short stint of imprisonment in the prison followed by a more prolonged period of imprisonment in a reformatory. Newgate closed in 1902 and was demolished in 1904 to make way for the new Central Criminal Court building. Most Old Bailey convicts, however, were sent to the Convict Hulks, normally prior to boarding a transport ship, or to Millbank Prison (opened in 1816) or Pentonville (opened in 1842).

Sometimes the place of confinement was specified in the sentence and is indicated in the Old Bailey Proceedings, but for the most part it is necessary to consult the Prison Registers or convict Life Archives to determine in which prison(s) a convict was incarcerated.

For more information on imprisonment, see the Imprisonment background page.

[Anonymous], "A man publickly whipped in the sesssions house yard in the Old Bailey", from William Jackson, The New and Complete Newgate Calendar (1795). Wellcome Images, Ref. EPB 30093/B © Wellcome Library, London.

Corporal Punishments

Early-modern punishments including whipping and the pillory frequently used physical harm, often inflicted as a public spectacle, as a method of deterring crime. While convicts continued to be sentenced to these punishments into the nineteenth century, all but the private whipping of men had ceased by the end of the century.

Defendants convicted of notorious crimes such as deception and perjury were sometimes punished publicly in the pillory as a way of destroying their reputations and signalling public distaste for their crimes. 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 secured 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 could express 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. An 1816 statute restricted the pillory to perjury only and the punishment was abolished in 1837.

Offenders (mostly those convicted of theft) were sentenced to be stripped to the waist and whipped "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, serving to shame the offender and deter others from committing the crime. But over the course of the eighteenth and early nineteenth centuries, the proportion of whippings carried out in public declined. The public whipping of women was abolished in 1817 and that of men ended in the early 1830s, though it was not formally abolished under 1862.

Private whipping (in prison, with the press in attendance), from the 1850s virtually of men only, continued, however, beyond the end of this period. Following the passage of the Security from Violence Act (the "Garrotters Act") in 1863, which authorised up to 50 strokes, this punishment was frequently used for those convicted of theft with violence. This punishment was not abolished until 1948.

Other Punishments

The other punishments described in this section were often part of sentences with more than one punishment.

In 1779, a clause in the Penitentiary Act allowed a fine to be levied 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 could vary the amount according to the severity of the offence and the status of both the victim and the convict. The amounts involved varied from less than a shilling to hundreds of pounds. Non-payment of fines led to incarceration in jail until the fine was paid.

Young offenders were sometimes fined and then sentenced to a period of imprisonment in the London Refuge for the Destitute which was, in effect, a juvenile reformatory. Interestingly, this was a covert procedure and thus was frequently not documented in the Old Bailey Proceedings. The short life narratives recorded in the minute books of the Refuge for the Destitute for individuals tried at the Old Bailey and sentenced can be found in the Old Bailey Associated Records 1740-1834.

By sending convicts into their majesties' service, the court not only contributed to the armed forces, but also exiled undesirable characters. This sentence was most frequently used during the War of American Independence (1775-1783) and the Napoleonic Wars (1793-1815). In some cases the prisoner was sentenced directly to a term of service in the army or navy. In others, the original sentence was withdrawn once the prisoner agreed to serve. Alternatively, many defendants sentenced to death were pardoned on condition of service.

Convicts were sometimes required to find sureties. These were men of property who posted a bond to guarantee the convict's future good behaviour. The bond could be for a substantial sum of money, hundreds or thousands of pounds. If the condition of the defendant's discharge was violated, the money was forfeited to the king. The text of the Old Bailey Proceedings often specifies the sum of money promised and the duration of the bond. In many cases, the convict remained under threat that an additional punishment might be imposed despite the bond. In this circumstance they were bound "to appear and receive judgement if [or when] called upon". The requirement to provide sureties was frequently combined with others punishments 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.

Further Information

Acknowledgements

Much of the information for this page is derived from: Emsley, Clive, Tim Hitchcock and Robert Shoemaker. “Crime and Justice – Punishments.” Old Bailey Proceedings Online, version 7.0. https://www.oldbaileyonline.org/static/Punishment.jsp, accessed June 2017.

Author Credits

This page was written by Robert Shoemaker, with additional contributions by other members of the Digital Panopticon project team.