J.M. Moore

The final version of this paper was published in Social Justice Vol. 46, No. 4, a special issue on punishment and history – for the full edition see http://www.socialjusticejournal.org/product/vol-46-4-punishment-and-history/ For an electronic copy see https://www.jstor.org/stable/26952586 (it is paywalled but if you don’t have access please shout mail@jmmoore.org

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Introduction

Until the 1970s, histories of late eighteenth- and early nineteenth-century punishment tended to portray a story of the substitution of “rational penal and reformative treatment for blind reaction and petrified tradition” (Grünhut 1948, 1). In particular, “the emergence and consolidation of prisons throughout Western Europe and North America” was, as Sim (1990, 4) highlights, perceived “as a process of benevolent evolution, a movement from barbarism to enlightenment.” These Whig histories saw the development and refinement of state punishments as indicative of an increasing level of civilization on the part of penal inflictors (Grünhut 1948, Radzinowicz 1948, Webb & Webb 1963). This interpretation was challenged in the 1970s by authors in the United States and Europe (most notably, Foucault 1991, Ignatieff 1978, Melossi & Pavarini 1981, Rothman 1971), whose revisionist histories contested Whig assertions that change was motivated by civilizing and humanitarian intentions. Instead, the revisionists drew on Rusche and Kirchheimer’s (1939, 5) claim that “every system of production tends to discover punishments which correspond to its productive relationships” to argue that the transformation of state punishments during this period represented, in Foucault’s (1991, 89) words, “a new economy and a new technology of the power to punish.” The transfer from premodern corporal punishments to modern carceral punishment reflected the emergence of capitalism and matched the requirements of its social structures.

Despite their different interpretations, both Whig and revisionist histories agreed that the change that occurred in state punishment during this period was broadly similar across Europe and North America. This consensus about what happened between 1780 and 1850 has been summarized by Ignatieff (1983, 79) as a “revolution in punishment,” during which the “decline of punishments involving the public infliction of physical pain to the body” were accompanied by the “emergence of imprisonment as the pre-eminent penalty for most serious offences.”  Subsequent work has questioned this account and, in the case of England, highlighted the key role played by transportation during this period (Devereaux 1999, Reid 2007). Indeed, Willis (2005, 173) argues that it was only with the “demise of transportation” in the second half of the nineteenth century that “the widespread acceptance of the penitentiary occurred.” Rather than experiencing Ignatieff’s (1983, 79) “revolution in punishment,” Willis (2008, 402) argues that the period was, “at least in the case of Britain … a time of continuity.” The first part of this essay reviews the available empirical data to show that in England, between 1780 and 1850, the major change was a dramatic expansion in all modes of punishment rather than a movement from the corporal to the carceral. There was an increase in the use of imprisonment, but there were also increases in executions, whippings, and transportation. The second part of this essay focuses on the implications of these findings. I argue that the eventual establishment of imprisonment as the dominant form of state punishment in England, in the second half of the nineteenth century, was not due to the attractions of penitentiaries or other carceral models but rather was a response to the unsustainability of preferred alternatives, particularly transportation.

            Histories of crime and punishment have tended to focus on felony, which Griffiths (2004, 85) compares to “a little molehill next to the mountain of petty crime.”  It is therefore important to recognize that English penal law was enforced throughout the period of this study by three tiers of courts. The bottom tier was local magistrates’ petty sessions, which Hay (2005, 60) describes as “low law” administered by “laymen, acting without juries.” More serious cases, felonies, were sent to either quarter sessions or assizes. Both heard cases with a jury, the quarter sessions being presided over by, in counties, two or more magistrates and, in boroughs, a recorder (part-time junior judge). The assizes, including the Old Bailey in London, were presided over by a High Court judge. Although studies that focus on felony, particularly those that draw on the comprehensive records of the Old Bailey, can tell us much about how the law operated at these higher levels, they are not representative of the “vast amount of the law imposed and suffered, used and resisted” during this period (Hay 2005, 60). Recognizing that most penal sanctions were determined summarily by local justices of the peace creates a major methodological challenge. Although records of assizes and to a lesser extent quarter sessions are available to the historian, the sentences of local magistrates were not systematically recorded, and we can only find traces of them in the archive. Therefore, we can, with a high degree of accuracy, provide well-sourced estimates of those sentenced to death or transported, but with respect to the far more frequent summary punishments—whippings and short terms of imprisonment—ordered by local justices, the claims are inevitably more speculative.  

Changing Economies of Punishment in England from 1780–1850 

Histories of punishment face the challenge that much of the available archival evidence relates to penal discourses. These debates tell us much, but they risk privileging the ideas and aspirations of reformers over the lived experience of those who were subjected to punishment. In attempting to recreate England’s penal economy in this period, I have therefore sought to largely ignore discourses and instead focus on penal practice. In this section of the essay, I use a mix of archival sources and published work to detail the evidence that all state punishments experienced expansion, focusing in turn on capital punishment, corporal punishment, transportation, and imprisonment.

Capital Punishment

While it is true to say that there were fewer executions in 1850 than there had been a century earlier, this outcome was by no means certain. In the preceding century, there had initially been a dramatic increase in executions, followed by a slow decline (Gatrell 1994). The campaigns of Samuel Romilly and others against the widespread use of the death penalty can be better understood as a response to a recent increase in its use, rather than as an enlightened campaign against primitive punishments. Indeed, as Radzinowicz (1948, 535) has highlighted, by Romilly’s death in 1818, the criminal law was largely unchanged and his campaign against the death penalty had been spectacularly unsuccessful. Gatrell (1994, 618) has estimated that, from 1770 to 1830, there were between 6,322 and 7,713 executions in England and Wales, an average of over 100 executions each year. This represented a substantial increase from the previous period; using Gatrell’s (1994, 617) figures for London and Middlesex to estimate national rates of executions for the period 1700–1769, I calculate that there were on average between 37 and 45 hangings per annum nationally. This expansion in the use of the death penalty from around 1770, peaking in the 1780s, resulted in significantly more executions taking place in the early decades of the nineteenth century than there had been in the first six decades of the eighteenth century (ibid., 616–18). The increase in the number of death sentences issued was even more dramatic. While less than a hundred people a year were sentenced to die in England and Wales during the early and mid-eighteenth century, by the late 1820s this figure had increased to over 1,300 people a year. Whatever else may have been happening in the penal system of the late eighteenth and early nineteenth centuries, there was no decline in the number of people sentenced to death or executed. Although capital sentences and executions did decline dramatically from the late 1830s on, it is important to note that they remained public spectacles. Gibbeting or hanging in irons continued until 1832, and executions continued to take place in public until 1868 (Priestley 1985, 292; Radzinowicz & Hood 1986, 685).

Corporal Punishment

Establishing the extent of the use of corporal punishment during this period is impossible. The overwhelming majority of sentences were determined through summary proceedings and were not systematically recorded. Changing social attitudes to violence, inherent in what Elias (2000) describes as the civilizing process, means it is likely that where corporal practices continued, they were often erased from, or at least muted in, public discourse. However, there is evidence of the continued widespread use of bodily punishment. For example, although its use was restricted in 1816, the pillory continued to be used until 1837 (Wiener 1990, 94). The stocks, which were never legally abolished, continued to be used into the second half of the nineteenth century with, for example, in 1860, a man subjected to six hours in the stocks for gambling on a Sunday in Pudsey, Yorkshire. Although the archival evidence is fragmented and requires more research to fully evaluate, the limited traces available repeatedly suggest that Whig and revisionist claims of a movement away from bodily punishment are not sustainable. To illustrate the continuing role of the corporal, I will use examples from Birmingham prison. Birmingham has been chosen for three principal reasons. Firstly, the evidence cited relates to 1850 and 1851, representing penal practice at the end of (rather than during) our period. Secondly, the prison was constructed in the 1840s, being described by a Home Office inspector of prisons as “a very extensive and complete prison … which for excellence of site and completeness of construction will bear a comparison with the best modern prisons in the kingdom.” Thirdly, the examples I will cite occurred while the prison’s governor was Alexander Maconochie (Moore 2011). His status as an enlightened reformer was such that Enoch Wines, in a report to the United States Congress in 1872, confidently stated that “among prison reformers Maconochie holds the most conspicuous place; that he stands pre-eminent in the ‘goodly company.’”

Although the whipping of females was abolished in 1820, other forms of corporal punishment, such as head shaving and the use of stocks, continued throughout the period covered by this study (Zedner 1991). In Birmingham prison, Maconochie regularly restrained women in handcuffs and straitjackets. Prison records show, for example, that on May 13, 1851, Maria Cox was sentenced by Maconochie to “three days’ bread and water and handcuffs for 30 hours” for “insubordination and bad language.” Two weeks later, the prison matron recorded that Cox had again been sentenced by Maconochie to the “refractory cell and handcuffs” for “disobedience and bad language.” Some years later, Maconochie conceded to a Royal Commission that he also used straitjackets to punish women, who were placed in them for up to three days at a time. Maconochie also used the straitjacket to publicly humiliate women, recalling in his evidence to the Royal Commission that “on one occasion I think, and perhaps it might be two, I strapped a woman up to the railing in the centre hall of her own side.” Although court records, where they exist, would show that these women were sentenced to a carceral punishment—imprisonment—their experience was certainly corporal. 

For men and boys, whipping remained in regular use in England for summary offenses throughout the nineteenth century. What is often overlooked is that, for magistrates, the options of punishing by whipping or by imprisonment were not mutually exclusive. Magistrates could, and routinely did, sentence males to both. Although the exact extent of this practice is difficult to estimate, Maconochie, in his evidence to the Royal Commission, spoke about an occasion when “a boy came into the prison under sentence to be flogged.”  In context, it is obvious that he regarded this as routine, as did the commissioners, who made no attempt to elicit further explanation. The abolition of the standard penalty of death for felony in 1828 expanded the number of offenses for which whipping could be used as a sentence for boys and men (Wiener 1990, 94). This trend was further reinforced by legislation during the 1860s—over a decade after the conclusion of Ignatieff’s (1983,79) “revolution in punishment”—which demonstrated a real reluctance to move away from corporal sanctions. Even though public whipping was abolished in 1862, a year later, in response to a moral panic over garroting, another act reintroduced flogging as a punishment for robbery (Davis 1980, 190–213; Wiener 1990, 100). 

We do not know the exact extent of Maconochie’s use of corporal punishment, due to his failure to keep records as required by law, but it was clearly extensive. One example uncovered by the Royal Commission concerned a boy called Bedford, whom Maconochie described as “a small boy for his age” of “about 14.” In response to the boy’s insubordination, Maconochie deployed the cat o’ nine tails, giving the child “twelve cuts across the posterior,” repeating the beating later the same day, when he told the boy “that he should have the same night and morning till he became submissive.” When asked to justify his punishment of children’s bodies, Maconochie stressed the disciplinary benefits, telling the Royal Commission: 

I am confident that a two or three days’ flogging, six lashes a day, would have subdued any boy. The flogging a second time, the scarcely closed skin, would overcome him, and has always done so. Nothing was wanted from him but a reasonable exhibition of submission.

In his journal he recorded that, with respect to Bedford, “it is only, I fear, by such treatment [regular whippings] … that his caution not to offend can be kept permanently active.” Fragmented and partial archives can provide opportunities to support arguments by selecting unrepresentative evidence. In choosing the regime of a respected reformer, who operated at the end of our period, in a recently constructed prison, I am adopting Eckstein’s (1975) methodological prescription of focusing on a “least likely case” rather than attacking a straw person to show how the corporal remained central. Indeed, whipping continued to be used in England as a judicial sanction until 1948 and as a punishment for prison offenses until 1967 (Thomas 1972, 201; Wiener 1990, 100). 

Transportation

The centrality of transportation to English penal practice both before and during this period is often overlooked. From the sixteenth century until 1776, transportation had been directed to the West Indies and subsequently to the American colonies (Smith 1947). In a detailed analysis of the Old Bailey sessions papers, Rubin (2012) shows how transportation, as well as serving as a substitute for the enforcement of the death penalty, was used extensively to punish people who would previously have received a lesser sentence. It is estimated that approximately 30,000 convicts were transported to the American colonies in the eighteenth century (Smith 1947). The ending of Atlantic transportation following the American War of Independence generated a crisis for the British penal system. In the debates that followed, consideration was given to transportation’s replacement by imprisonment. In his account of the drafting of the 1779 Penitentiary Act, Devereaux (1999, 428) highlights how, although the first draft had condemned transportation, the second merely noted that it had become impractical, and the final, agreed version, rather than heralding the birth of the prison, reasserted transportation’s place as the principal form of secondary punishment. Though the act provided, at least in theory, for two central government “penitentiary houses,” the resumption of transportation remained the government’s priority. Following the exploration of a range of alternative destinations, Botany Bay was chosen, and the first convicts were dispatched there in 1787 (Shaw 1998, 48). Despite Jeremy Bentham’s (1843a) publication of the plans for his panopticon prison in the same year, transportation was not replaced by penitentiary imprisonment; it had instead reestablished its position as the principal punishment for felony (Devereaux 1999). Neither the houses described in the Penitentiary Act of 1779 nor the panopticon were built. In fact, the numbers transported increased dramatically. Between the arrival of the first fleet in 1788 and 1815, Reid (2007, 123) estimates that the total number of convicts sent to Australia was marginally over 15,000, an annual average of approximately 540 people. However, from 1816 until 1840 this expanded dramatically, with Reid (ibid.) calculating that, on average, over 3,700 convicts arrived in the two penal colonies in Australia each year. 

The relative values placed on transportation and imprisonment in mid-nineteenth-century England is illustrated by a House of Lords Select Committee, which in 1847 expressed considerable skepticism regarding the potential of imprisonment, concluding that “no Hope exists in Imprisonment being so far rendered more formidable as to supply in all respects the Place of Transportation.” Although it is true that by the end of our period central government had developed a growing convict estate, this was intended to support transportation, not replace it. As the Directors of the Convict Prisons made clear in their 1850 report to Parliament: Millbank prison was a depot for convicts awaiting transportation; Pentonville held convicts in separate confinement in preparation for their transportation; Parkhurst prepared boys for transportation; and Portland, Dartmoor, and the hulks used convicts awaiting transportation on public works. It was only after the period covered by this paper, in 1853, that English criminal law was amended to introduce penal servitude (to be served in English convict prisons) as a sentencing option in place of transportation (Forsythe 1987, 73). In England, it is therefore incorrect to claim, as Ignatieff (1983, 79) does, that imprisonment was “the pre-eminent penalty for most serious offences” at any point in the period between 1780 and 1850. 

Imprisonment

The use of punitive imprisonment has a long history in England. It was not an invention of modernity. Imprisonment as punishment can be found in Alfred’s Law of ca. 890 (Pugh 1968, 2). Its use underwent its first dramatic expansion in the early modern period. In 1552, a proposal was submitted to the Privy Council by the City of London to convert the old palace of Bridewell into a “house o occupation”; this proposal was accepted, and Bridewell, the first house of correction, opened in 1556 (Van der Slice 1991, 34). This model was replicated rapidly, with houses opening in, among other places, Oxford in 1562, Salisbury in 1564, and Ipswich in 1569 (McConville 1981, 38–39). In 1576, an act was passed requiring justices to establish houses of correction in every county (Fox 1952, 24). By 1630, a national network serving both rural and urban districts had been established in England (Innes 1987). In a study focusing on the prosecution and punishment of misdemeanors in the late seventeenth and early eighteenth centuries, Shoemaker (1991, 6) reveals the widespread use of imprisonment. He estimates that there were nine times as many misdemeanor cases as there were felony indictments. 

Like transportation, corporal and capital penal sanctions, the expanding penal economies of this period, meant the numbers imprisoned substantially increased. Although recordkeeping improved dramatically over the period of this study—with the emergence of the science of statistics (Cullen 1975)—no official government data on prison populations before 1818 are available. However, prison missionary John Howard kept, and published, detailed records of his tours which I have used to establish the extent of imprisonment in the earlier part of the period. Table 1 below details the extent of the expansion of imprisonment in England and Wales between the late eighteenth and the mid-nineteenth century.

Year	Annual	Daily Prison Population			Hulk
	Receptions	Total	Criminal	Debtors	Populations
1776		4084	1647	2437
1788		5545	3534	2011	1937
1818	74301				2637
1836	99127	13147	11296	1851	2304
1846	128998	14476	13607	869	1333
1864	139286	18130	17628	502	0[20]

In 1776, John Howard recorded a national prison population of 4,084. The majority, some 2,437, were debtors. Of the 1,647 criminal prisoners, 653 had been convicted summarily, and a further 994 were either being held on remand for trial or had been convicted at quarter sessions or assizes and were serving prison sentences, awaiting transportation or execution (Howard 1777, 35). Although the summarily convicted represented only 16 percent, the short length of sentences means they represented a much higher proportion of the receptions. By 1788, a year after the first convicts had been dispatched to Botany Bay, a further census by Howard (1791) revealed a 36 percent increase in the prison population from 4,084 to 5,545. If we include those held on the hulks, the increase was 83 percent, with a new total of 7,482 men, women, and children incarcerated in England and Wales. The number of imprisoned debtors had declined by over 400, and they now represented 36 percent of the prison population. Criminal prisoners had more than doubled and, at 3,534, they now accounted for almost two-thirds of the daily prison population. Clearly, a major contributing factor was the ending of transportation to the Americas in 1776; the nearly two thousand convicts confined in the hulks would all have been transported if a suitable destination could have been found. The dramatic increase in assizes and quarter session prisoners, from 994 to 2,052, was also partially the consequence of local prisons having to hold convicts (ibid., 245). This expansion placed considerable stress on the system’s capacity to cope, and Howard’s account details overcrowding and its detrimental impact on prison conditions. This overcrowding, however, did not deter the increased use of prison by local magistrates, and the number of people incarcerated for summary offenses had more than doubled from 653 to 1,412 (ibid., 245).  

            The first comprehensive central government census of English and Welsh prisons in 1818 identified an overall capacity of 16,708 across 334 prisons. In addition, the hulks—which had been retained after transportation was restarted, this time to New South Wales—held 2,637 convicts. Unfortunately, the design of the government survey did not include the number imprisoned on any one day. However, the returns do identify that prison receptions totaled 74,301 for the year. From 1835, with the establishment of the Home Office inspectors of prisons, detailed prison statistics are available, and the first set show that the number of receptions had risen by a third since 1818 to 99,127 in 1836. In the five decades since the first fleet had sailed, the prison population had grown significantly, with a daily population of 13,147 (ibid., 456), and an additional 2,304 people incarcerated in the hulks.^[24] This increase had occurred at the same time that over 90,000 of the more “serious offenders” were transported to the Australian penal colonies (Reid 2007, 123). The numbers of debtors had declined to 1,851, still 15 percent of the daily population, and the number of prisoners summarily convicted stood at 4,615, a sevenfold increase on the numbers recorded in Howard’s first census. Whereas the summarily convicted represented just over a third of the daily population, they accounted for over half the annual receptions: 53,270 out of a total 99,127 (ibid., 449). Although the subsequent increases in daily populations (to 14,476 in 1846 and 18,130 by 1864) may be partially explained by the decline in transportation, the increased receptions (up to 128,998 by 1846 and 139,286 by 1864) suggest a continued expansion of short prison sentences.

            Although more people were being incarcerated, the length of sentences remained relatively short. As table 2 below shows, in 1836, nearly half of all sentenced prisoners (46 percent) were imprisoned for less than a month. Only one in 20 served over six months. Those incarcerated were those for whom imprisonment had traditionally been deployed. A major contributor to this summary justice–driven expansion was the Vagrancy Act, which, Hay (2005, 64) argues, “allowed justices to whip and commit to the house of correction a wide variety of transient and suspect poor.” In 1836, for example, prison returns show that 11,352 men and boys and 7,511 women and girls were imprisoned summarily for vagrancy. Other categories of offenses that saw people imprisoned in their thousands that year included those addressed by the game laws, the Malicious Trespass Act, and the Larceny Act, as well as common assaults (ibid., 448–49). 

	No.	%
Under 14 days	13236	27.49%
14 days to one month	8916	18.52%
1-2 months	13096	27.20%
2-3 months	5270	10.95%
3-6 months	5202	10.81%
6 months to a year	1617	3.36%
1-2 years	659	1.37%
2-3 years	74	0.15%
3 years or more	74	0.15%

Local justices also played a leading role in managing their local labor markets, adjudicating disputes between employers and employees. In resolving cases under the Master and Servant Act, they could enforce financial settlements on employers and inflict imprisonment and corporal penalties on their employees (Hay 2004). In planning Bedford’s new prison in 1820, the local justices had a clear idea for whom it was being built. The new jail was not intended for those who would have been previously executed or transported but was aimed firstly at “poachers” and secondly at “servants in husbandry and other labourers for misbehaviour in their employment” (cited in Hay 2004, 95). Those sentenced to imprisonment remained, until the introduction of penal servitude in 1853, the same people who had always been incarcerated there. Those the courts perceived to be serious offenders continued to be sentenced to transportation throughout this period.

From Expansion to Crisis to Transformation

The focus on changing modes of punishment by both Whig and revisionist historians is understandable. Looking back from the twentieth century, it was clear that state punishment changed radically during the nineteenth century. However, this perspective risks seeing change as both inevitable and occurring evenly. A closer historical analysis shows a different story. In this section, I want to briefly sketch out a different genealogy for the modern prison’s emergence in England. My account firstly emphasizes England’s changing social structure, a change that led to the expansion of existing state punishments detailed above. This expansion, I argue, proved problematic on several levels and generated a series of crises. It was the often unplanned and opportunistic responses to these that led, eventually, to imprisonment establishing its dominant role. 

Expansion

The late eighteenth and early nineteenth centuries saw laissez-faire economics destroy the old moral economy in both rural and urban Britain (Thompson 1991, 90). Whereas previously in rural areas, where the overwhelming majority of the population had lived, the customs and traditions that prevailed had provided “considerable social certainty and, at a most miserable level, some economic security,” under the emerging market economy, both urban and rural laborers had little power and no security (Hobsbawn 1995, 159). Class relations, and indeed proximity, underwent a fundamental change. There was a growing separation of the spheres the different classes lived in, with a significant reduction of the proportion of the workforce living-in (Daunton 1995, 431). Indeed, Thompson (1991, 195) has identified the period between 1790 and 1830 as a time of “profound alienation between classes in Britain, (with) working people (being) thrust into a state of apartheid” (emphasis in original). Although unleashing capitalist economic change had required privileging liberty to protect the emerging middle class from arbitrary rule, it had also weakened the social controls on the mass of the people (Rudé 1962).

            By the end of the Napoleonic Wars in 1815, middle-class concerns were increasingly focused on those below them in society rather than those above them. The works of Patrick Colquhoun, John Bowles, and others promoted fears of the poor, representing them as a threat that could only be resisted by a vigorous program of reform (Wilson 2007, 16, 78–79).  These fears were not entirely unjustified. The period saw considerable political and economic resistance. Working-class political organization, riots, and increased urbanization posed real threats to the social order. In the second decade of the nineteenth century, the adoption of laissez-faire policies in the wool industry generated Luddism (Thompson 1991, 540–70), and in 1830 England experienced the Captain Swing uprising described by Hobsbawn and Rudé (2001, 17) as “the greatest machine-breaking episode” in its history. These, and the subsequent Chartist agitation, were met with: amendments to the law (for example, the suspension of habeas corpus and the banning of trade unions); military force (for example, the Peterloo Massacre); and harsh criminal justice sanctions (for example, the transportation of political protestors) (Thompson 1991). 

            Other fears were generated by the growth of population. Thomas Malthus’s (1798) Principle of Population highlights the perceived danger of poor relief and the poor’s propensity to breed. The period 1780–1845 saw a dramatic increase in the population of England. Prior to the mid-eighteenth century, England had a relatively stable population characterized by high birth and death rates. However, at the same time that the population was moving from the countryside to cities and new industrial towns, “improvements in the quality and quantity of the food supply” caused a decline in the death rate, causing England’s population to increase “from less than six million in 1750, to almost 17 million by 1851” (Jefferies 2005, 4). However, although this growth in population is likely to have had some impact, it was principally the changing social structures in which this expanded populace lived, rather than population levels per se, that drove penal expansion. Whereas the social structures of the old moral economy could largely rely on informal social control mechanisms, the “dissolution of a society of ranks and orders and the emergence of a society of strangers” produced by the new political economy required more formal policing (Ignatieff 1983, 87). 

            The political priority was not to revolutionize the penal system but to facilitate its expansion through incentivizing prosecutors, policing public space, and expanding and strengthening the law. Between 1752 and 1826, Parliament took steps to remove the fees paid by prosecutors and witnesses, replacing them with financial compensation (Gatrell 1994, 20). At the same time, there was a dramatic increase in private prosecution societies, which vigorously prosecuted alleged criminals on their members’ behalf (Emsley 1996, 33). Gatrell (1994, 19) has found that capital cases increased threefold between 1805 and 1820. In 1829, Robert Peel succeeded in getting parliamentary approval for the Metropolitan Police Act which, as well as establishing a London police force, provided a model of policing that rapidly spread to other urban centers (Roberts 2004, 98). While the new police facilitated the supervision of the urban working classes on the street, the revised Master and Servant Act of 1823 sought to reinforce employers’ discipline in the workplace by buttressing the civil employment contract with penal sanctions directed exclusively at the employee (Hobsbawn 1995, 198). Meanwhile in the countryside, the various enclosure acts transferred common land into private ownership—“a plain enough case of class robbery … by a parliament of property owners and lawyers”—and made criminal the exercising of customary rights (Thompson 1991, 237–38). 

            The expanded use of penal law in the late eighteenth and early nineteenth century, driven by the disciplinary requirements of the changing social structure, therefore involved a range of legislative and administrative changes which did not initially involve innovations in modes of punishment. Indeed, as Gatrell (1994, 22) highlights, penal reform in the late eighteenth and early nineteenth century was a “low priority” on the parliamentary agenda. For Sir Robert Peel, home secretary from 1822 to 1830, criminal law reform had less to do with repudiating the barbarism of past times than his interest first in restoring the law’s credibility against public attack, and secondly in making it more efficient, even more punitive – more of a terror, not less. (Gatrell 1994, 568)

Crisis and Transformation

Writing about an earlier period, Thompson (1975, 260–69) highlights the paradox of the law’s need, if it is to be effective as a tool of class dominance, to be perceived as legitimate by the class whom it seeks to subjugate. Changing social structure may have required penal expansion, but achieving this was problematic. The dramatic increase in prosecutions for felony, encouraged by central government policy, inevitably resulted in more convictions.  With the provisions of the Bloody Code largely still in place until the late 1830s, this led to the dramatic increase in death sentences outlined above. However, the potential increase in executions risked the legitimacy of not only the criminal justice system but the state and its political order. As Gatrell (1994, 20) argues, this meant “there was a threshold beyond which the number of executions could not safely pass.” In England and Wales, prior to the end of the Napoleonic Wars, pardons had already been running at 50 to 60 percent for a few decades, but after 1815 these increased to 90 percent (95 percent in London) (ibid., 21). The Bloody Code, which had survived virtually intact well into the nineteenth century, did collapse. However, this was not in response to the campaigns of humanitarian reformers but was a direct result of “the criminal law’s mounting prosecutory effectiveness” (ibid., 21). An alternative punishment was needed for those reprieved from the scaffold, and this was, as it had been previously, transportation. Those pardoned added to the growing numbers to be transported. Home secretaries throughout our period struggled to cope, with Robert Peel (1996, 457), for example, confiding in 1826 that “the real truth is the number of convicts is too overwhelming for the means of proper and effectual punishment.” 

            As the economies of the penal colonies of New South Wales and Van Diemen’s Land developed, conflict emerged between the metropole’s need to transport its convicts and the labor requirements of the emerging colonial bourgeoisie. This conflict eventually led to the decline and ending of transportation. However, this process did not start until 1840, when transportation to New South Wales ended. Transportation continued to Van Diemen’s Land until 1853 and to Western Australia until 1868 (Reid 2007). Other destinations were sought, with a transport of boys from Parkhurst sent to New Zealand in 1844 (Pratt 1992, 83). Hulks for transported convicts were maintained in Bermuda from 1824 until 1862 and in Gibraltar from 1842 until 1875 (Campbell 2001, 141). British-ruled India operated its own penal colonies in Bencoolen (1787–1825), Penang (1790–1860), the Andaman Islands (1793–1796 and 1857–1947), Mauritius (1815–1853), Malacca and Singapore (1825-1860), and Arakan and Tenasserim in Burma (1828–62) (Anderson 2004, 1–2). Collectively, this history demonstrates the British state’s commitment to transportation. If it had not been for the sheer increase in numbers, transportation would have been maintained as the sanction for serious offenses for far longer. As it was, Hay (1980, 55) is correct in noting that transportation “allowed England to delay longer than Europe or America in building penitentiaries.” It was after 1850, as transportation was becoming increasingly logistically difficult, that the central government was forced to commit to the imprisonment of felons at home. 

            Until 1878, there were effectively two penal systems in England, one operated by central government and the other by local government. Imprisonment, although fundamental to local government, was of only limited relevance to central government in the eighteenth and first half of the nineteenth century. Central government’s principal mode of punishment was transportation. Local government, however, continued to rely on imprisonment, supplemented by corporal punishment, throughout this period. Like central government, local government had to cope with a dramatic expansion of the number of prosecutions and convictions. Although the length of prison sentences remained short, the number of people incarcerated greatly increased. This needed both accommodating and legitimizing. Local prisons were increasingly subjected to both local reform initiatives and central government inspection. As we approach the end of our period, many—but not all—of the regimes operating in English and Welsh prisons would have been unrecognizable to John Howard. The ordered Victorian prison had largely replaced the chaotic Hanoverian jail community. As Ignatieff (1983, 80) has correctly highlighted, a “greater social distance between the confined and the outside world” had been established, and the relationship between the confined and their jailors had been transformed by the imposition of the rule of rules in place of the rule of custom. However, it is easy to overstate the success of reformers, who found the reality of prison management a much greater challenge than the crafting of reform rhetoric. As DeLacy (1986, 172) points out, although nineteenth-century English prisons “were profoundly different … from their eighteenth-century predecessors,” they were equally different from “the stringent penal fantasies of idealistic reformers.” As demonstrated above, mid-nineteenth-century Birmingham prison, claimed by reformers as a “moral hospital” committed to prisoner reformation, in practice remained a place experienced as bodily pain (Hill 1857, 103). Reformative  rhetoric was used to hide the corporal reality of a regime underpinned by illegal punishments (Moore 2016). Other local studies of penal practice have shown reform was piecemeal: 1840s Warwickshire prisons were “overcrowded, noisy places, where prisoners were allowed to work in association and slept sometimes six to a cell” (Saunders 1986, 88), and Lancashire’s “prisons were growing shabby, and their management had been overwhelmed by the endless tide of bodies” (DeLacy 1986, 195). 

Reform and Legitimacy

Studies which have sought to map the transformation of punishment in general, and the emergence of the modern prison in particular, have all too often taken the discourse of reformers at face value. In his critique of his and other revisionist accounts, Ignatieff (1983, 82) concedes that they “may have been taken in by the reformers’ sources.” Nevertheless, the substantial body of published reform discourse that emerged in this period was important for a different reason. The changing economies of punishment and expansion of all forms of penal sanctions raised questions of legitimacy. All modes of punishment are about deliberate “pain delivery” (Christie 1981, 19). The level of pain delivered is a political decision, as it is “people with power (who) can deliver pain” (ibid., 83). This power is not, however, uncontested and can be restrained if it is considered illegitimate. Reform discourses, by presenting crime as a social problem that could effectively be cured through penal interventions, provided an important legitimizing function. Central to this was the increasing importance of the concept of reformation during this period. The impact of this can be illustrated by comparing the justifications given for inflicting state punishment by Jeremy Bentham early in our period with those offered later in the period by Maconochie, whose regime in Birmingham we have already examined. 

            The cornerstone of Bentham’s (1843b) penal philosophy was utility: punishment was “an evil” that could only be justified when the benefits derived from its infliction outweighed the pain being inflicted. Punishment was state-inflicted pain, justified by its deterrence of future crime. The criminal was, therefore, effectively sacrificed for the greater benefit of the whole society. However, for Maconochie (1847, 2) punishment was not an evil but “medicine for the individual,” a desirable end in its own right. Maconochie sought to sever the link between punishment and pain and to portray penality as benevolence. “Provided that suffering is made reformatory,” Maconochie (ibid., 4) declared, “I care little about its amount.” Therefore, if “Vice is a disease,” he argued, “and Penal Science is just moral Surgery,” then surely it was necessary to expand the institutions required to carry out this “surgery” so that all instances of the “disease” could be treated (Maconochie 1839, 20). The promotion of reformation, therefore, not only legitimized state punishment; it also, despite its failure in practice, justified its expansion. 

Conclusion

This essay has focused on a single jurisdiction, England and Wales, to argue that the claims of both Whig and revisionist histories that between 1780 and 1850 England experienced a transformation of its penal economy from premodern capital and corporal punishments to one where imprisonment was, as Ignatieff (1983, 79) claims, “the pre-eminent penalty for most serious offences” are empirically wrong. England experienced a dramatic change in social structure as the old moral economy of mutual obligations was replaced by a new capitalist political economy. This did necessitate a change in England’s economies of punishment, but this change involved, at least initially, the expansion of existing modes of punishment rather than their transformation. It was only toward the end of our period, as the established penal modes became unsustainable, that changes in penal practices became necessary. The growing number of felons sentenced to death led to an increase in reprieves, which in turn contributed to the increasing number of people transported. The decline of transportation from the 1840s led to those who would have previously been exiled being imprisoned in the new convict prisons. However, the massive explosion in the number of children, women, and men incarcerated in England’s prisons between 1780 and 1850 was not caused by the displacement of other punishments, but instead was part of a rapidly expanding penal economy which also encompassed the full range of capital, corporal, and carceral punishments. 

This essay’s claims are limited to England. Britain’s naval power and extensive empire provided unique opportunities to develop and maintain transportation. Other jurisdictions had much more limited opportunities when the expansion of capital and corporal punishments threatened their legitimacy and required innovation. Detailed work is needed in other jurisdictions to identify the extent to which the expansion detailed in this article was replicated elsewhere, and if it was, what impact it had on modes of punishment. In the same way that we should resist the temptation to generalize the developments in one jurisdiction to others in Europe and North America, we should be careful in theorizing the relationships between the development of penal economies in the Global North with those in the Global South. This essay, however, suggests that studies of individual jurisdictions’ economies of punishment must evaluate the extent to which the scale of penality is changing as well as identifying changes in modes of punishment. By focusing on the expansion of state punishment between 1780 and 1850, this study has offered an alternative account of England’s changing economies of punishment. Changes to social structure, namely the move toward urbanization and a capitalist political economy, did require a new economy of punishment, but that was characterized by expansion rather than change. This expansion subsequently confronted crises whose resolution did, eventually, involve significant changes to modes of punishment and the emergence of imprisonment as the standard punishment for felony. However, this change came later, in the second half of the nineteenth century, and was an indirect rather than a direct consequence of changing social structure.

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