Tyburn: London's Fatal Tree Read online

  FIVE

  Changing Methods of Punishment: 1500 to 1800

  At the end of the sixteenth century, there were fifty capital offences; by the end of the eighteenth century there were more than two hundred. How and why did perceptions of crime and the appropriate ways of punishing it alter over these centuries?

  Crime, like the poor, has always been with us. Laws have been created to protect property and life, bodies of armed men have existed to implement law and order and methods have been devised to judge and to punish those deemed guilty of breaking the law. While ‘law and order’ is often referred to as an ideal, a concept transcending time and place, in reality it is a social construct. Laws are made, interpreted, applied and altered by people who are largely from the dominant social classes. The forms that law and order take change over time and in different societies, but their primary purpose is to ensure that those individuals and institutions that possess the bulk of power maintain their favoured position. In reality, the concepts of the rule of law and the equality of all before the law conflict with the actual distribution of wealth, power and influence in modern societies.

  In Tudor and Stuart England the criminal justice system took on some resemblance to its modern counterpart. Henry VII (r. 1485–1509) was keen to strengthen the position of central government. At the same time he also wanted to continue the system whereby the dispensing of localised justice was largely in the hands of the magistrates. They were appointed on a county basis, met in quarter sessions and heard a wide range of less serious cases. Henry was also determined to establish a judicial system in which powerful barons and others could not pervert the course of justice by bribery and intimidation. He wanted, too, to provide a legal framework which would encourage the rising middle classes to pursue the wealth-creating efforts he thought essential to the country’s development.

  Henry VIII (r. 1509–47) took control of the Church and because of this, heresy and treason tended to conflate and the punishments extorted for these crimes became more severe. His daughter Mary (r. 1553–8) earned the nickname ‘Bloody Mary’ because of her forceful determination to restore the position of the Catholic Church in England. During her reign at least three hundred men and women died horribly at the hands of the state for infringing heresy laws enacted under her initiative. Most of these heretics were burnt at the stake. This was a fearful form of execution. The victim was often smeared with pitch or tar and then brushwood or other combustible materials would be placed around him or her. The executioner then employed a noose to render the prisoner unconscious before the flames reached him. This did not always work and agonising death resulted. Britain’s last recorded burning at the stake occurred on 18 March 1789 when a woman was put to death outside Newgate Prison. Her crime was coining.

  The quantity of business devolving on to the shoulders of parish constables increased in Tudor times. It was fashionable to lampoon these constables as officious incompetents and Shakespeare provides evidence of this with the characters of Dogberry in Much Ado About Nothing and Elbow in Measure for Measure. The constables resented the unpaid nature of their duties and often loftily dismissed the victims of crime if they were poor and without influence. One level below the constables ranked the watchmen. They were also something of a standing joke. Paid a pittance, they were usually portrayed as feeble old men who could not find any other work. Satirised because it was said that their instinct when trouble occurred was to ignore it or scurry away and hide in their little sentry boxes, it is unlikely that they were as useless as this caricature suggests. However, they were not the kind of force to be of much help in stemming the growing tide of lawlessness and violence in Stuart and Hanoverian London.

  In the period between the start of the Tudor dynasty in 1485 and the restoration of the monarchy in 1660, a distinct change in attitudes to crime and how it should be dealt with can be perceived. The Crown, whose preoccupation had formerly been to keep powerful and ambitious nobles in their place, now felt seriously threatened by the less deferential and increasingly restive common people. This perception was shared by the well-to-do rising bourgeois classes who looked to the Crown and Parliament to protect their property and privileges. The criminal law became one means whereby the dominant classes imposed their control over what were seen as the irreverent, truculent and criminally inclined lower orders. A substantial increase in the population and a fall in real wages and living standards in the sixteenth century were accompanied by a number of popular uprisings, there being four in the period 1536 to 1554 alone. Additionally, the end of the monastic system and its charitable and welfare functions in the late 1530s was thought to have caused the emergence of that bogeyman of the Tudor and Stuart era, the able-bodied vagabond, the ‘sturdy beggar’. In official circles, poverty and criminality became virtually synonymous.

  Vagrancy was regarded as a major concern in Elizabethan times as minatory bands of sturdy beggars ranged across the countryside terrorising and robbing. In order to address the problem, in 1530 Henry VIII introduced the notorious Whipping Act which allowed the authorities to seize vagrants and take them to the nearest market town, where they would be whipped around the streets at the cart’s tail. The savagery of this act was reduced slightly around fifty years later when the perambulation ceased and instead the victim was tied to a whipping post while punishment was inflicted. Vagrants were often branded with a letter ‘V’ after the first offence and from 1572 had a hole bored in the gristle of the ear. Houses of correction were built to punish vagrants and put idle people to work. Whipping posts soon appeared in towns and villages throughout England and in large numbers in London. This gave rise to the comments made by John Taylor (1578?–1653) the ‘Water-Poet’. On a visit to the capital he was struck by the number of whipping posts and was led to pen the following lines:

  In London, and within a mile, I ween,

  There are jails and prisons full eighteen,

  And sixty whipping-posts and stocks and cages.

  Whipping became one of England’s most common forms of punishment, not only used against vagrants but employed as the standard punishment for petty larceny, the theft of goods worth less than a shilling. In 1589 appropriateness was the criterion for decreeing the loss of ears for uttering seditious words and of the right hand for producing seditious writings. Such punishment left the offender with visible evidence of his guilt and dishonour.

  Elizabeth I (r. 1558–1603) made England Protestant once more. In 1559, the Act of Supremacy abolished the power of the Pope in England while the Act of Uniformity made it illegal to hold any services other than those contained in the prayer book. The state argued that heresy was treasonable: heretics should be punished for treason because their religious activities and practices inevitably meant that they denied the monarch’s supremacy. Torture was now being routinely used to obtain confessions, especially in cases where treason and religious heterodoxy were suspected. At the same time, increasingly severe punishments were thought necessary to tackle the perceived threat to law and order from rising crime. In a somewhat hysterical climate of opinion, nobody seemed surprised when a senior legal figure advocated pulling out the tongues of convicted criminals.

  The concept of punishment embraced both physical pain and public humiliation. Petty offenders might be placed in the stocks or the pillory or fined or whipped. The pillory was extremely painful because the offender was held by the neck and the wrists, causing agonising cramps. Sometimes, to compound the punishment, the offender had his ears nailed to the hinged wooden board in which his neck was placed. This prevented him ducking when a hostile crowd pelted him with all manner of filth or, if they really disliked him, with stones. Sometimes offenders were fatally injured by such missiles. If their feet did not reach the platform on which they were placed, they could easily die as a result of slow throttling. Occasionally, if the authorities felt particularly vindictive, they would aggravate the punishment of standing in the pillory. In 1630 a Dr Leighton who had written a book lampo
oning royalty, the peerage and the upper echelons of the Church of England, was sentenced to be whipped severely and then to have an ear cut off before being placed in the pillory. His ordeal also included having the septum of his nose split and branding with the letters ‘SS’ which signified that he had stirred up sedition. Others sentenced to the pillory included sexual offenders, those caught cheating at cards for money and people selling substandard goods.

  Although lock-ups, houses of correction and prisons existed, little use was made of custodial sentences for punitive and deterrent, let alone for reforming purposes. These places were used for people awaiting trial, appeals or sentencing, vagrants and the idle poor or in some cases for misfits and others who simply defied cate-gorisation. However, from the early 1700s a wider assortment of petty offenders found themselves sent to perform hard labour in various houses of correction throughout the land. These might include poachers, petty thieves and those who uttered seditious slanders. The punishment for all felonies was, in theory if not actually in practice, death.

  A form of torture was used on accused prisoners who refused to enter a plea. This might be an act of defiance or because the prisoner was literally dumb. If a prisoner could hold out without a plea until he died, he saved his property for his family. A prisoner refusing to plead meant that the trial could not begin. This greatly irked the authorities who would then subject him to the dreaded peine forte et dure, usually referred to as ‘the press’. This was originally sanctioned in 1275 and extensive use was made of it in the sixteenth to the eighteenth centuries. The prisoner was stripped and placed on his back. A board was put on his chest with heavy weights on it. The agony of this meant that most prisoners quickly found their tongues and co-operated by entering a plea. A highwayman by the name of Thomas Spiggot held out for thirty agonising minutes with a weight of 400 lb on his chest. Sometimes the authorities dealing with a prisoner unwilling to plead simply twisted his thumbs with whipcord. That normally did the trick.

  Nowhere did the perceived threat from crime seem as serious as in London. The capital offered unique opportunities to the criminally inclined. Its population was larger and growing because of inward migration. The result was the creation of a rootless and volatile population many of whom were unskilled and very much at the mercy of economic downturns and slumps. With few loyalties or moral restraints, many naturally turned to crime, at least when times were bad. London offered propitious conditions for crime because of the concentrations of wealth, its anonymity and the feebleness of its law-enforcement agencies. For the sixteenth and seventeenth centuries, no reliable quantitative evidence exists for levels of crime in London and historians have to rely instead on impressionistic contemporary material which strongly suggests social and political instability. Some particular events stand out. In 1554, fifty-nine rebels were hanged in London and Southwark after Wyatt’s revolt. In the late 1590s a force of over five hundred unpaid soldiers threatened to loot Bartholomew Fair. Martial law was declared on this occasion.

  During the Interregnum (1649–60), the heavy hand of Puritanism descended on the English people and many of their favourite activities and pastimes. ‘Incontinence’ now became punishable. This word was used in its sexual sense and made a misdemeanour out of fornication and a felony of adultery. In 1647 and 1648 actors could be punished for pursuing their trade as could in the latter year those who had turned out to watch them. In 1654 cock-fighting was banned less out of concern for the welfare of the animals than because it attracted ill-behaved crowds who gambled, drank, swore and might get out of hand. Abusing the sanctity of the Lord’s Day became a misdemeanour, while various enactments tried to enforce attendance at worship on Sundays and prevent travelling and trading on that day. In the campaign against immorality, the uttering of profanities and gambling with cards became punishable, certain types of football were outlawed and for a period of six months, horse-racing was banned. With the Restoration in 1660 many of these recent enactments were repealed but savage punishments continued to be imposed for a wide range of offences. The state seemed determined to keep, literally, the whip-hand over a populace which, especially in London, was seen as increasingly fractious and insubordinate.

  In rural England in the early eighteenth century the justices of the peace with their parish constables provided a reasonably effective system of law enforcement but things were very different in the towns. These contained few men of the propertied class from which the magistracy was normally drawn. Many towns were expanding rapidly and experiencing rising levels of lawlessness. The workload facing justices was growing and it became increasingly difficult to find men of the right calibre prepared to undertake the onerous duties that went with the unpaid job. In London especially this led to men who were not ‘gentlemen’, that is, reasonably well-to-do landowners, being appointed as what were known as ‘trading justices’. They were paid to do the job and as the workload increased, many of them became professional, gaining their living from fees for the cases heard, the convictions obtained and various perks, mostly illicit. The opportunities for corruption and peculation are obvious.

  London in particular provided the ideal conditions for a substantial growth in criminal activity which put the existing watch systems under considerable pressure. Few well-to-do citizens wanted to undertake the unpaid and sometimes hazardous duties that went with law-enforcement. They found proxies to perform these duties who, because they were poorly paid, were often inefficient and corrupt. The medieval idea of the posse comitatus, that is, communal responsibility for apprehending criminals and bringing them to justice, made no sense at all in the London of this period because any attempt to call a posse together would probably have been ignored or, possibly worse, have created an excitable crowd swiftly turning into a mob and going on a binge of violence and destruction.

  The lack of an effective police system led to the emergence of the ‘thief-takers’. These were men, only occasionally women, who captured and either delivered up to authority or themselves prosecuted wrong-doers for whom rewards had been offered. The most famous of these was Jonathan Wild. In the early eighteenth century he combined thief-taking with receiving stolen goods and organising a vast, complex and lucrative network of underworld activity in London. Thief-taking could be a highly profitable business when rewards of £40 from public funds were available for those whose actions led to the conviction of highwaymen, coiners and burglars, for example. In 1720 an added incentive was a sum of £100 offered for the successful conviction of those who committed robbery within 5 miles of Charing Cross. This sum was more than most working men received in wages in three or four years. Additionally the various societies concerned with the ‘reformation of manners’ from the 1690s offered rewards for those whose actions brought to justice blasphemers, Sabbath-breakers and others guilty of ‘immoral acts’. The existence of these rewards encouraged corruption, blackmail and perjury. Informers and thief-takers destabilised and weakened the criminal world by sowing suspicion and disunity but also confused the boundaries between criminality and legality. The state was effectively recruiting criminals to act on its behalf.

  A movement for reform began when Henry Fielding gathered together a group of constables noted for their relative integrity who reported directly to him on their activities. They were given a regular salary which reduced the temptations of bribery and corruption. ‘Mr Fielding’s People’ as they were initially known evolved into the famous Bow Street Runners and mostly acted in cases where a reward was involved which encouraged their efforts. This primitive policing system helped the people of London to feel that the streets were safer. Henry Fielding and his blind half-brother Sir John Fielding owed much of their relative success to the compilation of what would now be called a database which gave them comprehensive information about London’s criminals and their activities. The growing success of the Bow Street operation meant that it became the prototype for other forces such as a horse patrol established in 1763. This was a mounted force which patr
olled the major routes into London and had some success in reducing the activities of highwaymen. In about 1780 the foot patrol was established which regularly made the rounds of the streets of the City and other parts of the metropolis. Also effective in tackling crime was the publication Hue and Cry, later renamed Hue and Cry and Police Gazette, which was published from Bow Street and distributed information about wanted offenders and their suspected crimes. This made it more difficult for criminals to evade detection by moving their operations around the country.

  Mention should be made at this point of what became known as the ‘Tyburn Ticket’. Sanctioned by Parliament in 1699, this was a document presented to a person who had successfully brought a prosecution ending with the execution of the felon concerned at Tyburn. With it he claimed exemption from various onerous or unwelcome public duties such as jury service. A Mr George Philips of Bloomsbury was the first person to receive one of these tickets after he had successfully brought two housebreakers to justice. The Act allowing this practice was repealed in the reign of George III, but as late as 1856 an armourer from Bond Street in London successfully claimed exemption from jury service upon producing a Tyburn Ticket. The judge involved had clearly forgotten that this privilege had been terminated. These tickets had become negotiable and were bought and sold surreptitiously at prices that could reach three figures.