Late 17th Century to the early 20th Century

This article describes the types of punishment sentences imposed on convicts at London's central criminal court from the late 17th century to the early 20th century, as detailed in the Proceedings.

Contents of this Article

• Introduction
  • The Death Penalty and Mitigating Circumstances
  • Misdemeanours
  • New Forms of Punishment
• Benefit of Clergy
• Branding
• Death
• Imprisonment
• Transportation
• Corporal Punishment
• Miscellaneous Punishments
• Not Punished
• Introductory Reading

Introduction

Judges could choose from a wide range of punishment sentences in this period, though their options were often limited by choices made at an earlier stage in the judicial process.

Felonies defined by common law were originally punishable by hanging. 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 given more than one punishment sentence. This is particularly common for those sentenced to the pillory, imprisonment, whipping, fines and providing sureties for good behaviour.

Because the actual punishment a convict received often differed from that specified at their trial, it is worth searching later sessions by the name of the defendant using the Personal Details search page to see if the sentence was mitigated. It is also possible to search separately for information about pardons or executions. Although this information was not consistently reported in the Proceedings, there are regular reports of pardons from 1739 until 1796 and of executions from 1743 until 1792.

For defendants convicted between 1780 and 1870, the Life Archives in the Digital Panopticon often provide information about the punishments they actually received. Links to those Life Archives, where available, are provided from the individual trial accounts on this website. For the latest research on how punishments sentences correlate with actual punishments received, see the Digital Panopticon page on Penal Outcomes.

The Death Penalty and Mitigating Circumstances

Execution of Lord Ferrers, 1760, from Walter Thornbury, Old and New London (1873-78), vol.5, p.209. © University of Sheffield

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. Through the mechanisms of benefit of clergy and pardons many more defendants found guilty of a capital offence were spared the death penalty and sentenced instead to punishments such as branding, transportation, or imprisonment. Many received no punishment at all.

As a result, as documented on the Digital Panopticon website, less than a fifth of convicts sentenced to death were actually executed.

In making the decisions that determined whether a defendant was killed or released regardless of guilt, consideration was given to the defendant's character, the nature of the offence, the strength of the evidence against him or her, the state of crime at the time (a higher proportion were actually hanged if the court thought a ‘crime wave’ was in process), and, occasionally, the status of those who petitioned on the defendant’s behalf.

Misdemeanours

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

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New Forms of Punishment

A gradually growing reluctance to use the death penalty in the eighteenth century (except for the most serious cases), combined with an increasing concern that those who received benefit of clergy were let off too lightly encouraged the development of alternative forms of punishment. The criminal law reforms of the nineteenth century, abolishing, as they did, 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.

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Benefit of Clergy

Through the mechanism of benefit of clergy, many defendants found guilty of certain felonies were spared the death penalty and given a lesser punishment. Dating back to the middle ages, benefit of clergy was originally a right accorded to the church, allowing it 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 hanging.

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 choice of text and level of literacy required, depending on whether they wished to impose the death penalty in a specific case, or not. In 1623 women found guilty of the theft of goods less than ten shillings in value were also allowed benefit of clergy, and in 1691 women 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. 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 be punished with more onerous sentence of transportation.

Concern that 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. These included 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.

Benefit of clergy remained for some offences, however, until the reforms of the criminal laws (and dramatic reduction in the number of capital statutes) in the 1820s. It was abolished in 1827.

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Branding

Branding Joseph Relph in the Old Bailey, 1778, from Criminal London: a Pictorial History from Medieval Times to 1939 (2002). © Mark Herber

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 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.

Branding as a punishment for those receiving benefit of clergy ended in 1779. The last convict sentenced to branding at the Old Bailey received the sentence in 1789.

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Death

• Death Respited for Pregnancy
• Hanging
• Burned at the Stake
• Drawn and Quartered
• Death with Dissection and Hanging in Chains

less than a fifth of death sentences were actually carried out. Convicts avoided death through benefit of clergy, pardons, and respited sentences due to pregnancy, or by being sentenced to military or naval duty. Since these mitigations often took place after the Proceedings were published, this information is usually not included in the trial texts, though the information is often available elsewhere. For those convicted before 1772, the Ordinary of Newgate’s Account provides an essentially comprehensive list of those who were actually executed. You can use the Ordinary’s Accounts search this material. For those convicted between 1730 and 1837, see Simon Devereaux's Capital Convictions database; and for those convicted from 1780 to 1868 information may be available in the LIfe Archives in the Digital Panopticon (links are provided from the trials on this website).

Over the course of the eighteenth and nineteenth centuries 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.

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 sympathy for the newborn child (or concern for the cost of caring for it) meant that the mother was often 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. From 1848, reprieves granted to pregnant women were always permanent.

The verdicts of the juries of matrons were recorded in the punishment summaries. Just over half of the over 1100 women who made this plea were successful. Over the course of the eighteenth century the number of successful pleas declined, and they are found infrequently in the 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 Proceedings in the trial of Emma Pleasance in 1880.

Hanging

Until 1783 most defendants actually executed were 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. Huge crowds were attracted to these events, as reflected in plate 11 of William Hogarth's Industry and Idleness.

'The Idle Prentice Executed at Tyburn', William Hogarth, Industry and Idleness, plate 11 (1747). © Tim Hitchcock

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

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 the victim a proper burial. Concern at the disorder which occurred at such scenes contributed to the passage of the 1752 Murder Act.

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.

Burned at the Stake

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.

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 dismembering them. 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.

Death with Dissection and Hanging in Chains

Dissection of an executed murderer, from William Hogarth, The Four Stages of Cruelty, plate 3, The Reward of Cruelty (1751). © Tim Hitchcock

Judges occasionally ordered that the bodies of those convicted of egregious crimes and hanged should be hung in chains near the scene of their offence. This practice was supplemented by an act of 1752, "for better preventing the horrid crime of murder", which 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).

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Imprisonment

• Imprisonment as Reform
• Imprisonment: Hard Labour
• Imprisonment: House of Correction
• Imprisonment: Insanity
• Imprisonment: Newgate
• Imprisonment: Penal Servitude
• Imprisonment: Preventive Detention
• Imprisonment: Other Institution
• Imprisonment: Miscellaneous

Early modern prisons were typically used for holding defendants awaiting trial and convicts awaiting punishment. Imprisonment was not perceived as a form of punishment in itself, and indeed the relatively open manner in which prisons were run was not conducive to their serving as a form of punishment. Occasionally, however, even in the seventeenth and early eighteenth centuries, convicts were sentenced to a period of imprisonment, usually in addition to some other penalty, such as whipping.

In 1706 a statute was passed which allowed judges to sentence defendants given benefit of clergy to up to two years' hard labour in a house of correction. Until that date houses of correction had - in theory at least - been exclusively used only to punish the misdemeanours of the poor and vagrant. This punishment was used until 1718, when as a result of a further Act of Parliament most convicts allowed benefit of clergy were sentenced to transportation instead.

Imprisonment as Reform

'A View near Woolwich in Kent, shewing the Employment of the Convicts from the Hulks' (1779). © Stephen Keates.

From the 1770s new attitudes towards imprisonment developed. It was believed that if redesigned and reordered, prisons could be used to reform offenders, changing them from recalcitrant criminals to productive citizens in the very process of punishing their crimes. Use of imprisonment was further stimulated by the suspension of transportation following the outbreak of the American Revolution in 1776.

An Act of 1776, intended to address the problems resulting from the suspension of transportation, allowed judges to sentence male offenders to hard labour improving the navigation of the Thames by dredging it, as an alternative to transportation overseas. Although the Act did not specify where these men were to be incarcerated old ships anchored on the Thames, known as the hulks, were soon turned to the purpose. 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 characterised by strict discipline and hard labour. Although the penitentiaries were never built, the courts began to sentence large numbers of convicts to terms of imprisonment, and under the pressure of an ever growing prison population London’s prisons were gradually expanded and rebuilt over the ensuing decades.

'The Water Engine, Coldbath Fields', by Augustus Pugin and Thomas Rowlandson. © University of Sheffield

In 1794 the new Coldbath Fields House of Correction used the controversial system of solitary confinement in an attempt to force convicts to reflect on their sins and to reform themselves. In 1816 conditions for women prisoners in Newgate were reformed. In 1821 Millbank Penitentiary opened on the banks of the Thames (where the Tate Britain museum stands today). A massive building, it contained separate cells for 860 prisoners. In 1842 Pentonville Prison in North London opened. It was built to hold 520 prisoners, intended initially to spend eighteenth months in solitary confinement. And eight years later, its near neighbour, Holloway Prison was opened.

Over the course of the nineteenth century prisons underwent several important changes, including centralisation of administration, the introduction of inspections and widespread use of solitary confinement. Perhaps inevitably, their growing use prompted dissatisfaction with prison conditions and doubts about the impact they had on prisoners. Alternative punishments were continually being sought. A parliamentary committee in 1895, however, concluded that imprisonment should continue as a central feature of penal policy, and its recommendations were embodied in the 1898 Prison Act.

By looking at the text of the Proceedings, you can normally 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. Judges at the Old Bailey committed prisoners to two institutions more frequently than any others: Newgate Prison and the house of correction. You can search the Proceedings for sentences committing prisoners to these institutions by choosing Imprison > Newgate or Imprison > House of Correction from the draw down menu labelled Punishment on either the Personal Details or the Custom Search pages. This menu also allows you to search on imprisonment at hard labour and penal servitude and those imprisoned on the grounds of preventive detention. Prisoners specifically sentenced to hard labour, whether in the house of correction, the hulks, or in prison, have been categorised together under "hard labour". In addition it is possible to search separately for those convicts deemed insane at the time that the offence was committed, and young convicts committed to the Penitentiary.

'The City Prison at Holloway', from St. John Adcock, Wonderful London (1926/7), vol. III, p.1085.

Imprisonment: Hard Labour

Many convicts were sentenced to confinement with 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. 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. See also Penal Servitude.

The house of correction or "Bridewell" was a sixteenth-century penal innovation designed both to punish and reform petty criminals via a short period of imprisonment at hard labour. As time progressed these institutions were used for a wider range of crimes and the average length of inmates' imprisonment increased. Prisoners in houses of correction were typically set to beating hemp.

Imprisonment: House of Correction

'Scene in Bridewell', from William Hogarth, The Harlot’s Progress, Plate IV (1732). © Tim Hitchcock

The house of correction or "Bridewell" was a sixteenth-century innovation originally designed to provide work for the idle, training for the young, and punishment and reform for petty criminals by subjecting them to short periods of imprisonment at hard labour. As time progressed the training and work provisions fell aside, and these institutions came to be used to punish an ever wider range of crimes. The length of the sentences imposed also increased. Prisoners in houses of correction were typically set to beating hemp.

Imprisonment: Insanity

The 1800 "Act for the Safe Custody of Insane Persons Charged with Offences" empowered the courts to detain defendants who, due to a lack of lack reason and understanding, were deemed unable to understand the difference between right and wrong. Imprisonment on the grounds of insanity was therefore enforced not only on those people of "unsound mind" found guilty of their crimes, but also those found not guilty. Following the dissemination of the "M'Naughton Rules" for dealing with defendants who pleaded insanity in 1843, the number of defendants receiving this sentence increased considerably.

Imprisonment: Newgate

Newgate was London's chief prison and 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.

The Central Criminal Court, as built on the site of Newgate in 1902, from St. John Adcock, Wonderful London (1926/7), vol. I, p.206.

Imprisonment: Penal Servitude

Penal servitude was a term of imprisonment at hard labour first introduced by the 1853 and 1857 Penal Servitude Acts as a replacement for transportation. It gave judges the discretion to sentence anyone who might otherwise have been transported for less than 14 years to penal servitude. This normally meant labour in a convict prison.

Imprisonment: Preventive Detention

Under the 1908 Prevention of Crimes Act courts were empowered to pass the sentence of preventive detention in order to protect the public from individuals considered to be habitual criminals, i.e. those convicted of at least three crimes since the age of sixteen. Convicts who were sentenced to preventive detention were usually punished first with a stint of penal servitude followed by an open-ended period of imprisonment at hard labour "for the protection of the public". While this was draconian in concept, judges became increasingly reluctant to use the sentence after the first two or three years.

Imprisonment: Other Institution

Alice Sullivan, 15 years old, convicted at the Old Bailey for simple larceny in August 1873 and sentenced to one month's imprisonment and four years in a reformatory. © The National Archives

Some convicts were sentenced to periods of imprisonment in more unusual institutions, including the Poultry Compter, New Prison, and Holloway Prison. Some youths between the ages of 11 and 21 who had been sentenced to transportation but were deemed not yet old enough to be sent overseas were sent specifically to "the penitentiary". Others were sent to reformatories or similar institutions including the London Refuge for the Destitute (founded in 1806). The short life narratives recorded in the minute books of the Refuge for the Destitute for individuals tried at the Old Bailey and sentenced in this way are reproduced here as a part of the Associated Records.

Imprisonment: Miscellaneous

Most of the convicts in this category were sentenced simply to be "confined", with no specific details recorded about where they would be incarcerated.

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Transportation

The first major innovation in eighteenth-century penal practice 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.

Convicts on their way to transportation, from Criminal London: a Pictorial History from Medieval times to 1939 (2002). © Mark Herber

Although many convicts were transported in the seventeenth century, it was done at their own expense or at the expense of merchants or shipowners. In the early eighteenth century transportation came to be seen as a way of creating an effective alternative to the death penalty, that avoided the apparent leniency of the other main options: 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 established returning from transportation as a capital offence.

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.

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. 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.

Only between two-thirds and three-quarters of those sentenced to transportation actually left Britain and travelled to Australia. For more information see the Digital Panopticon page on Penal Outcomes.

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Corporal Punishment

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.

• Pillory
• Whipping

Pillory

Defendants convicted of notorious crimes such as attempted sodomy, seditious words, extortion, fraud, and perjury in the eighteenth century were sometimes punished publicly in the pillory as a way of destroying their reputations and signalling public distaste for their crimes.

Christopher Atkinson in the pillory, 1783, from Walter Besant, London in the Eighteenth Century (1902). © 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 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.

In some cases of seditious words, however, the crowd applauded the convict, pelting 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 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.

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Whipping

'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?). © Corporation of London Libraries and Guildhall Art Library

Offenders (mostly those convicted of theft) 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, serving to shame the offender and deter others from committing the crime. Even in the late seventeenth century, however, the courts occasionally 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, from Walter Besant, London in the Eighteenth Century (1902). © 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 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.

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Miscellaneous Punishments

• Fines
• Forfeiture of Lands and Goods
• Military/Naval Duty
• Provide Sureties for Good Behaviour
• Other Miscellaneous

Fines

In the late seventeenth and first half of the eighteenth century fines were used primarily for the punishment of misdemeanours. However, 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 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 in this way are reproduced here as a part of the Associated Records.

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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 (only in two trials during the entire period), however, judges explicitly sentenced convicted felons to forfeit goods and lands to the King.

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Military/Naval Duty

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 the Grand Alliance (1688-1697), the War of the Spanish Succession (1701-13), the War of American Independence (1775-83), and the Napoleonic Wars (1793-1815).

In some cases the prisoner was sentenced 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 (this was regularised by the Mutiny Act of 1705).

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Provide Sureties for Good Behaviour

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 defendants discharge was violated, the money was forfeited to the king. The text of the 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 punishements 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.

Other Miscellaneous

In the late nineteenth century courts began to order additional punishments, aimed at compensating victims and preventing further crimes. These include:

• paying restitution or compensation to the victim
• paying the costs of prosecution
• police supervision for a number of years
• forfeit of and/or disqualification from holding public office
• expulsion from the country under the Aliens Act

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Not Punished

• Pardons
• Sentence Respited
• Miscellaneous

Pardons

Not all punishments prescribed 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, transportation, hard labour, or penal servitude. 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 normally provided at the end of subsequent editions of the Proceedings. To find this information use the search pageand 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 guide to Associated Records. These sources, where available, will provide more information about the case, including the actual punishment (if any) inflicted on the convict.

Throughout most of the eighteenth century, approximately 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%, and as much as 97% in the 1830s.

Sentence Respited

The court sometimes decided to postpone or respite a sentence until a later sessions, either because of the convict's pregnancy (see also death sentences respited for pregnancy) or for reasons that were unrecorded.

In 1848 judges were empowered to invite the jury to respite sentences in cases where the law was doubtful. In these instances, the case was passed on to the Twelve Judges at the newly established Court for Crown Cases Reserved (superseded in 1907 by the Court of Criminal Appeal). In trials where sentences are respited you may be able to find additional information by searching for the defendant's name in later sessions.

Miscellaneous

In addition to benefit of clergy, pardons, respites and pardons on condition of military or naval duty, there are a number of other reasons why the Proceedings might not record a formal sentence:

• The convict died, fell ill, or was rescued from the court or prison by his friends before s/he could be sentenced.
• 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.
• Those recommended by the jury for mercy were sometimes simply discharged without punishment, or sent to the care of their master, relatives, or other figure of authority.
• In many late seventeenth-century editions of the Proceedings information about punishments was often simply not provided.
• The Proceedings simply report that the convict was "discharged".

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• Introductory Reading

Introductory Reading

• Beattie, J. M., Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford, 2001), Part II
• Bentley, D., English Criminal Justice in the Nineteenth Century (London, 1998)
• Emsley, C., Crime and Society in England, 1750 - 1900, (London, 1987)
• 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)

For more secondary literature on this subject see the Bibliography.

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