the romantic history of Newgate: underpinnings
This is part II of a larger project I am doing on the history of Newgate Prison in romance novels. The final product of the project will be a much narrower paper that really focuses on the modern era of romance novels. But for the newsletter, I am writing at length about the background and context of that thesis. The introduction to the project is here. This current section of the project will come in two parts: one about England and punishment generally and one about Newgate prison’s history next week. These will be the most historical/legal parts of this project--then we’ll examine how this backdrop of punishment and prison affected the development of the English novel.
nascent English criminal punishment
One of the first documents written in the English language is a codification of punishments for personal injuries. The Law of Æthelberht set out pecuniary, compensatory punishments and the amount of the punishment is dependent both on the harm and the victim’s societal status. For example, violence to a bishop results in a greater punishment than harm to a priest.1 The Law of Æthelberht is representative of the manner of punishment typical of early Germanic law systems, including the more famous Salic law that was the basis of much of the law of Central Europe throughout the Middle Ages.2
These monetary calculations were the primary type of punishment available, but not the only one. The death penalty was available for treason against king or lord and in some Saxon kingdoms for theft.3 Some murders could be rectified with the pecuniary compensations, while others were met with the death penalty. Poetic physical punishments were also available, like the cutting of a tongue of a public slanderer. Though there is evidence of punitive incarceration under some medieval kings, imprisonment in this period “was in general a temporary measure for those awaiting trial or punishment, particularly those who could not be secured through sureties.”4 Incarceration always carries an expense to the actor doing the incarcerating and some kings appeared to prefer sentences that led to an income, rather than an expense.5
Like every other aspect of culture, the criminal legal system in England shifted after the Norman Conquest, centralizing power under the king and his administrative state and created a new priority of record keeping. William the Conqueror forbade the death penalty as a sentence, except in times of war (though trials by battle resulting in death were encouraged). But punishments could still be exacted in an inconsistent and arbitrary fashion across the country, post-Norman conquest. The key procedural shift in criminal punishment happened a few centuries later at the beginning of English common law during the Angevin6 period. These include the beginning of trials by jury and increases to state-mandated carceral spaces. All of this led to the expansion of at least custodial imprisonment.
During an appeal7 of a felony during the Middle Ages in England, a prosecuting private party made public accusations and the defending party responded. Public prosecution was an incredibly late development in English law.8 If the accusation and answer were proper, the matter was tried. Trial could happen through ordeal (meaning by combat, fire, or other means of ascertaining the verdict through the judgment of God,) or by oath (with a defendant swearing to innocence, or rounding up people known as compurgators to swear to their innocence.)9 The Assize of Clarendon in 1166, promulgated by Henry II, established trial by jury, particularly in land disputes, though it also mandated trial by ordeal for certain offenses. The Catholic Church deprecated trials by ordeal in 1215 and this necessitated further development of the jury system, leading to juries as finders of fact in criminal cases.10 In the same year, the Magna Carta was signed by John, establishing the right to a trial by jury in a criminal case.
No free man shall be captured or imprisoned or disseised of his freehold or of his liberties, or of his free customs, or be outlawed or exiled or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers or by the law of the land.
Formal prisons had existed before these new commissions; the Tower of London, built under the reign of William I, was the first political prison in England, specifically built to hold the king’s enemies.11 This concept of “private” prison, a prison to hold an individual’s political enemies, continued as the Plantagenets scrambled for power amongst themselves. And there were a smattering of county level prisons run by sheriffs on a local level.
In this same decree12 that developed early juries, assize courts were established. These periodic courts that met quarterly or biannually to hear the most serious cases in front of a professional class of judges.13 The wait for the assizes to meet created a higher demand for keeping accused in one place until the assizes met.
Thus, the Assize of Clarendon also required that counties “where there are no jails, such shall be made in the burgh or in some castle of the king from the money of the king and from his woods if they be near, or from some other neighbouring woods, by view of the servants of the king; to this end, that the sheriffs may keep in them those who shall be taken by the servitors who are accustomed to do this, and through their servants.” Prisoners confined within these prisons would have their cases at the assizes. A new professional class of judges would come to verdicts, according to the newly formed “Common Law,” following precedent to avoid arbitrary and inconsistent rulings.14
Parallel to this formal development of holding felons awaiting trial use of jails, the coercive incarceration of debtors became more prevalent throughout the country. In 1283, the Statute of Acton Burrell allowed private creditors to require debtors to acknowledge publicly their debts. If the debtor defaulted, the creditor could seize property. If the debtor lacked property for this process, they could be arrested and imprisoned until debt was satisfied.15 Two years later, under the Statute of Merchants, the process became even more immediate. Debtors’ prisons, like the Fleet, the Marshalsea and the Clink (originally a criminal prison, later used a debtors’ prison), would be developed, but reports of criminal prisons like Newgate often report a substantial portion of their inmates being debtors throughout the history of the prison.
The punishment in English criminal law at the time was intended to be “quick and public to serve as a deterrent to other crime,”16 and incarceration in its nature is a more private ordeal than public, corporal punishment. Before 1775, imprisonment was a rare as a punishment, rather than condition and was enacted for a narrow set of crimes (manslaughter, commercial frauds, combining against employers [union activities] or rioting) and for a range of a year to three years.17 At least some of those sentenced to incarceration for theses could have been executed under English code, but given the public nature of punishment, judges could be hesitant to provide another public venue for demonstration, particularly for crimes associated with demonstrating or rioting.18
Even if incarceration was miserable and hellish, it was removed from the theory of punishment based on general deterrence. Through the 18th century, public punishments came in a variety of measures: capital punishment (or transportation to the colonies as an alternative), public corporal punishment, like the pillory, branding, mutilation, or stocks, and fines.19 Imprisonment could be used for minor crimes that could be adjudicated without trial at the assize courts--vagrancy is a common example.20
While the volume of detention spaces continued to increase between the 13th and 18th centuries, the common law of England was also becoming more violent in its punishment, peaking with the “Bloody Code.” Under this legal scheme, around 160 crimes were capital offenses at the end of George II’s reign, increasing to over 200 during the reign of George III.21 But this does not mean that every person convicted of one of these penalties was executed. Transportation to the colonies was often offered as an alternative to capital punishment and executive clemency could stop executions.22 But judges also had the discretion to exacerbate punishment, with capital punishment often made more severe and aggravated for a more intense public scene--hanging, burning, decapitation, and possible mutilation of the body after the fact.
Another way to escape the death sentence was the “benefit of the clergy.” This plea was one of the underlying issues in the argument between Henry II and Thomas Becket that led to Becket’s assassination. After the Assize of Clarendon, Becket argued these secular courts had no jurisdiction over clergy, weakening Henry’s major reforms to the English courts and harming the relationship between the once close King and archbishop. The subsequent murder of Becket turned public sentiment against Henry and he had to walk back the jurisdictional reach of his secular courts and this loophole for punishment persisted.
By 1705, the benefit of the clergy was almost universal in who could claim it, though the benefit itself became less useful to escape punishment totally. Before 1705, the benefit could be obtained with proof of literacy through recitation of a passage of scripture) and after the benefit was given without any proof. The range of offenses covered by the benefit was not universal and physical punishment was not totally avoided, it would just be branding and whipping or transportation, rather than capital punishment.23 The real theme of the 18th century for punishment seems to be legislative whim, judicial discretion and executive mercy meeting at a head over and over again, in individual cases. New acts would be passed, changing cases to capital offenses, individual judges had great choice in how that capital punishment would be met: with death, with transportation, with a plea or with clemency and executives could dole out clemency as they saw fit, based on public sentiment.
From the medieval to early modern England, a mass dual conceptual shift happens, moving from the Germanic model, which focused on compensatory damages to a victim or their family, a Common law model, focused on taking away from the harm-doer, and away from private suits, just between individuals, to state-controlled action and punishment, though private prosecutions remains an important part of criminal procedure in in early modern England. This background gets us to the Enlightenment and we can discuss what is going on, philosophically, that so radically and rapidly changes prisons’ role again, from around 1780 to 1860.
an enlightenment baseline
During the Enlightenment, with all these philosophical concerns on the power of the state, restrictions on state power and defining the relationship between state and body became particularly important for criminal law. In On Crimes and Punishment (1764), Italian philosopher Cesare Beccaria argued for social contract theory as the sole basis for justified state punishment--that a state may punish a person if they encroach on the rights of another person, within the contract between individual and state. Additionally, the method of punishment should be chosen for the greatest social good. Beccaria argued, within this framework, that the state does not have the right to take lives and capital punishment is not a necessary state action, in part because it would always be primarily a retributive act.24 Since the main aim for punishment for Beccaria is deterrence, the State also has a duty under this theory to deter crimes through other means besides punishment. Beccaria also argued that the best method for deterrence was not severity of punishment, but certainty of punishment.25
Beccaria was a Classicist criminologist and the Classicist school focuses on general deterrence as a rationale for punishment because it operates under the idea that humans have free will and will use that free will to avoid pain and increase pleasure. Punishment should increase the pain associated with an act harmful to the state and then people will not do it.
Beccaria argued that there must be milder punishments than the death penalty, not necessarily from a compassionate stance, but because where the deterrence might be manifesting was in the prosecution and punishment of crimes, not the committing of them. Victims of minor crimes might be less willing to bring suits if their offender, a member of their community or even just a fellow human, was potentially going to be executed or even sent to the colonies, even for something like a petty theft. Beccaria never argued for penitentiaries, but when his essay was translated into English in 1767, England on the precipice of both needing (because of the sudden lack of transportation options) and wanting (because of their own Enlightenment reformers’ influence) milder punishments available at home.
The Americas were the major setting for penal transportation before 1776, when civil unrest in the colonies and then the War of Independence stopped the practice. Under the Criminal Law Act of 1776, those who would be subject to transportation were instead given “hard labour” sentences. These sentences could be taken on prison hulks, ships that were manned by convicts, but this sudden shift led to major overcrowding and the English government seemed ready to consider a new type of punishment.
In 1777, John Howard, a former administrator of Bedfordshire, published The State of the Prisons in England and Wales. He had initially visited a prison under his tenure as sheriff and was so surprised by the conditions that he took it on himself to visit every prison in England and Wales and write down what he found, eventually also traveling to the continent.26 Neither Howard’s outrage or the scale of it was novel at the time, but his systematic reportage was. Howard’s publication lined up with a moment in time (because of the lack of colonies to send convicts to) that judges were opting for confinement as punishment more and more often. Howard seems to believe that “prison was the natural and inevitable shape of punishment.”27 Howard’s vision of prison was one that did not stoop to the natural disorder that criminality was sourced from, but rose above by implementing structure and order, with regulations and rules to “extinguish petty pleasure indulged by the prisoners.”
Howard admired some of the mechanisms he had found in continental prisons during his travels: religious instruction, a labor regime, uniforms for prisoners and a coarse diet.28 Solitary confinement had been advocated by both English reformers and reactionary, as an compassionate alternative to hangings and as a measure designed to torture beyond what bodily punishment could do.29
In A Just Measure of Pain, a 1978 look at the birth of prisons during the industrial revolution, a kind of English counterpart to Foucault’s Discipline and Punish, Michael Iganiaff links Howard’s project to his ardent Calvinist beliefs. Howard could empathize with the state of the man in prison because of his belief in the total depravity of man. Howard’s spiritual and philosophical foundation was built upon “his feeling that rich and poor, judge and prisoner were bound together under the common sentence of sin [and that] also constituted the emotional force behind his insistence that the state should extend its moral obligation to the prisoner.”30
The fervor of Howard’s project was taken up by the Penitentiary Act of 1779, which had the lofty goal of designing these “better” carceral institutions. In a bureaucratic truth, studies were done on methods and locations, but no new reformed prisons were built as a direct result of the act. Instead, England made due with these buildings that had existed for centuries, and transportation started again in earnest with the development of Botany Bay in Australia in 1788, lowering the immediate need for new prison buildings.
But one of these visions for a new, “better” prison was Jeremy Bentham’s Panopticon.
Bentham's Panopticon is the architectural figure of this composition. We know the principle on which it was based: at the periphery, an annular building; at the centre, a tower; this tower is pierced with wide windows that open onto the inner side of the ring; the peripheric building is divided into cells, each of which extends the whole width of the building; they have two windows, one on the inside, corresponding to the windows of the tower; the other, on the outside, allows the light to cross the cell from one end to the other. All that is needed, then, is to place a supervisor in a central tower and to shut up in each cell a madman, a patient, a condemned man, a worker or a schoolboy. By the effect of backlighting, one can observe from the tower, standing out precisely against the light, the small captive shadows in the cells of the periphery. They are like so many cages, so many small theatres, in which each actor is alone, perfectly individualized and constantly visible. The panoptic mechanism arranges spatial unities that make it possible to see constantly and to recognize immediately. In short, it reverses the principle of the dungeon; or rather of its three functions - to enclose, to deprive of light and to hide - it preserves only the first and eliminates the other two. Full lighting and the eye of a supervisor capture better than darkness, which ultimately protected. Visibility is a trap.31
Bentham’s Panopticon is the metaphor for the modern system of discipline based on surveillance for Foucault, but for Jeremy Bentham, philosopher and social reformer, the Panopticon was not metaphorical; he really wanted to build it. In 1786, he wrote his proposal for the Panopticon, after practical experiments in sound and light for the necessary architecture to allow for the simplified surveillance. Bentham, like Howard, believed that no one was beyond redemption, but as a materialist, Bentham’s foundation ran closer to Beccaria’s Classicist idea: it was not that original sin permeated man, but that man not yet accurately calculated how to maximize pleasure and minimize pain.32 Punishment could and should function as an educative mechanism for these vectors.
He persisted in proposing the building of the Panopticon and was granted £2000 to conduct further experiments in acoustics and optics in 1794. But this was after the establishment of Botany Bay and the experiments were primarily failures. By 1800, the secretary of state was suggesting the project be totally abandoned. Eventually, the site that Bentham had purchased for the Panopticon (across the river from Vauxhall Gardens) would be used for a prison designed in a radial fashion: Millbank Penitentiary. But the method of discipline and order in Millbank was based on single-celling, rather than holistic and constant surveillance that was a defining feature of the theoretical Panopticon.33
While the panopticon would not be built, the legacy of the theory would be stretched forward by Foucault in his 1975 book Discipline and Punish. Society has many prisons when surveillance is the mode of discipline and institutions, like schools, hospitals and factories, adopt carceral logic.
And prisons and punishment in England would change in the 19th and 20th centuries, but built on top of the old systems, rather on razed ground. Next week, I’ll examine Newgate Prison’s history and its place in this millennium of punishment.
Lisi Oliver, “The Laws of Æthelberht” in The Beginnings of English Law, 52, 61 (2002).
Codified under Salic Law, the rule known as the “wergeld” calculated the damages for serious crimes against a person.
John Hudson, “Theft and Violence” in The Oxford History of the Laws of England: 871-1216 (2012).
Id. For discussion of the motivations of the instances of medieval penal incarceration, see R.B. Pugh, Imprisonment in Medieval England (1968).
John G. Bellamy, Crime and Public Order in the later Middle Ages, 164 (1973).
The Plantagenets. The word “Angevin” comes from Anjou, the French county from which Henry hailed.
An “appeal” here is distinct from a modern “appeal” that happens after a trial’s final disposition. From the OED: A calling to account before a legal tribunal; in Law: a criminal charge or accusation, made by one who undertook under penalty to prove it; spec. (a) Impeachment of treason or felony; (b) ‘the accusation of a felon, at common law, by one of his accomplices, which accomplice was then called an approver’; (c) ‘an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered, rather than for the offence against the public’ (Blackstone). Formerly a regular mode of criminal procedure. (All Obsolete exc. historical.)
George F. Cole & Andrew Sanders, Criminal Prosecution in England: Evolution and Change, 14 Conn. L. Rev. 23 (1981).
Margaret H. Kerr, “Angevin Reform of the Appeal of Felony.” 13 Law and History Review 351 (1995).
At different times, the role of “finder of fact” for a jury has had differing levels of active “finding.” But an important consideration is the late development of a public prosecutor in the criminal punishment system.
Edward M. Peters, “Prison before the prison: the ancient and medieval worlds,” in The Oxford History of the Prison, 32 (1995).
I’m using the word “assize” in two different ways here--it means both a decree from an executive during a court sitting and references to the courts themselves. So Henry II promulgated the Assize of Clarendon at the assize of Clarendon.
This professional class of judges who would come together to determine verdicts based on stare decisis or precedent developed the mode of English common law.
Stephan Halliday, Newgate: London’s Prototype of Hell, 3-4 (2006).
R.B. Pugh, “The earlier uses of imprisonment,” Imprisonment in Medieval England (1968).
Peters, supra note 11, at 32.
Michael Iganiaff, A Just Measure of Pain, 15 (1978).
Id.
Sean C. Grass, The Self in the Cell : Narrating the Victorian Prisoner, 19 (2003)
This sort of the crime that leads to Rachel’s imprisonment at the beginning of To Have & To Hold by Patricia Gaffney and her adjudication at the ends of Justices of the Peace (JPs) as the beginning of the novel is an example of this summary judgment without trial.
Stephen Wade, Britain's Most Notorious Hangmen, 9 (2009).
Iganiaff, supra note 17, at 17.
Id., at 18.
Peters, supra note 11, at 32.
Cesare Beccaria, On Crimes and Punishment (1764).
Iganiaff, supra note 17, at 52.
Randall McGowen, “Well-ordered prison: England, 1780-1865,” in The Oxford History of Prisons 79, 89 (1995).
Iganiaff, supra note 17, at 53.
Id., at 54.
Id., at 56.
Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan, 200 (1977).
Iganiaff, supra note 17, at 62.
Grass, supra note 19, at 5.