London's Shadows: The Dark Side of the Victorian City (37 page)

PUNISHING FELONS: THE TRIUMPH OF INCARCERATION

Most capital statutes for property crimes had been repealed by the end of the 1830s and hanging remained a residual punishment rather than a primary one. The death penalty had been under attack from the late eighteenth century; hardly used after 1840 it was abolished for all crimes except murder and treason in 1861. Reformers had argued that hanging was an inappropriate punishment for property criminals in that it effectively treated the petty offender and more heinous criminal in a like manner. Many of those sentenced to die at the end of a rope avoided such an end by having their sentences commuted to transportation or imprisonment. To many observers there seemed little logic behind the decisions that were made; execution had become little more than a lottery. In reality there was some pattern to deciding who would die and who would get a second chance. The nature of the crime was important - violent offenders were more likely to hang - as was the age and character of the defendant. Women rarely faced the hangman but primarily because they did not commit the crimes (such as highway robbery and horse theft) that brought most people to the scaffold and were consequently not deemed to be a threat to society. That dubious honour was reserved for young and unmarried males between the ages of 18 and 25 - the subgroup of society that has consistently held the most fears for those in authority and with property to protect.

Reformers had argued that the death penalty was ineffective as a deterrent given that many offenders realized that they stood a good chance of avoiding the ultimate punishment. Indeed, given the lack of professional police forces until the 1830s, most might well have believed that they would have to be particularly unfortunate to be caught at all and this, as we shall see in the next chapter, was one of the driving forces behind the creation of the Metropolitan Police in 1829. Along with concerns about executing petty thieves for their crimes were worries about the nature of public hangings. Contemporaries, Charles Dickens for example, feared that the spectacle of public execution, which drew tens of thousands to witness multiple hangings outside the debtors' door at Newgate Prison, was in danger of conveying the wrong message to the watching crowds. Hanging crowds were infested with pickpockets; spectators paid homeowners for the privilege of watching the show from upstairs windows; apprentices took time off work to come and see the early morning entertainment. Executions were not seen as manifestations of state power but as a crude form of titillation for the London mob. Dickens witnessed the executions of Frederick and Maria Manning at Horsemonger Lane Gaol in November 1849 and wrote: `When the two miserable creatures who attracted all this ghastly sight about them were turned quivering into the air there was no more emotion, no more pity, no more thought that the two immortal souls had gone to judgment, than if the name of Christ had never been heard in this world: In 1868 executions moved inside with Michael Barrett being the last person to suffer the ignominy of being hanged in front of an expectant crowd of some 2,000 people - many of whom had gathered overnight so as to have a good view of the Fenian's last moments.

Australia had been receiving criminals from the mother country since 1787 and thousands of convict workers had arrived to help carve out a new country from the continent's unforgiving climate and terrain. After a period of forced labour convicts could hope to be given a ticket-of-leave and perhaps establish their own farmstead or business in this new world. Some did very well, others made their way back home, but not a few failed to reach the colony at all or died soon after their arrival. As the new nation emerged in the nineteenth century it increasingly objected to its use as a dumping ground for those the English authorities wished to expel from society. In 1853, penal servitude was introduced and transportation was effectively abolished in 1857 although a few offenders were sent to Australia over the next decade. The new punishment that came to dominate penal policy was imprisonment. Experiments in the 1770s had led to the passing of the Penitentiary Act in 1779, which allowed local magistrates to build new prisons. In 1816 the first purpose-built national prison, Millbank Penitentiary, had opened for business on the banks of the Thames in London (although disease and an overly harsh regime closed it before the century was out). Once hanging and transportation had gone imprisonment dominated the penal agenda until the introduction of probation and non-custodial sentences in the early twentieth century.

As has been noted earlier, the Victorian period saw a change of emphasis in viewing the offender. While the final decades of the long eighteenth century had been dominated by ideas about the reformability of criminals, by the second half of the nineteenth century opinions were hardening - a process that was reflected in the development of the prison. Increasingly a perception gained ground that there `was little point in attempting the reformation and education of those who the social Darwinian and positivist thinkers were describing as innately criminal and inferior"' The growing bureaucratic state of the Victorian period allowed much better record keeping and the techniques of social investigation led to more analysis of statistics and the increased classification of criminals. Prisoners were photographed, measured and interviewed to determine what made them criminal. Their physiognomy was the subject of debate in the same way that other outsiders' - immigrant foreigners and native peoples - were.

Crucially the keeping of records meant that criminal convictions carried more weight than they had previously. A criminal record could now dog an individual's life as never before. Being `known to the police' and being discovered in suspicious circumstances could lead to short-term imprisonment by a magistrate. Those offenders released early from prison on a `ticket-of-leave' (the term was used for prisoners in English gaols as well as transportees to Australia) were at risk of being picked up by the police as suspicious persons if they stepped out of line in any way at all. Indeed there was concern expressed by some that the word of a policeman carried too much weight and could constitute an abuse of power. It is little wonder that an antipathy festered between the boys in blue and those recently released from Pentonville and other prisons. The sentence of penal servitude gave judges and magistrates the power to hand down severe sentences to relatively minor, if annoying, offenders. Persistent offending could be rewarded with long periods of incarceration. Thus we see offenders being sentenced to long terms of incarceration for petty thieving if they regularly appeared in court. Until the later decades of the century prisoners might hope to avoid this fate by offering a range of pseudonyms when they appeared in court or arrived at prison. The police and prison authorities in London used certain police detectives as `recognizing officers' to identify recidivists in staged parades in the exercise yards of Victorian gaols. This had an unexpected consequence in that it acquainted many of the criminal fraternity with Scotland Yard's finest.74

Legislation that had followed in the wake of the `garroting panic' of the 1860s had introduced the concept of the habitual offender and had allowed the police to track those leaving prison and keep tabs on them thereafter. In 1871 the 1869 Habitual Offenders Act was superseded by the Prevention of Crimes Act. This piece of legislation subjected a person under supervision `to a penalty of twelve months' imprisonment with hard labour for various specified offences, and persons who have been twice convicted of "crime"; the second time on indictment, to be `placed under a term of active supervision, not exceeding seven years, by the Court, in addition to any other punishment which may be inflicted upon them. During this period, supervisees are required to report themselves to the police in the same manner as license holders'. However, this was not always easy for the police to administer, as Assistant Commissioner of Police James Monro was to complain in his 1886 report on the workings of the Convict Supervision Office. He noted that criminals bent on returning to crime simply did not report to the police as the act required, so the `criminals that most require to be continually watched often evade supervision By the 1880s Monro claimed that his office always strived to help former prisoners rehabilitate themselves within society. The Convict Supervision Office actively liaised with charities to find men work'so that no convict, or person under police supervision just discharged from prison, can complain that he or she cannot obtain work, or by being thrown on the world friendless and destitute is being forced again into crime'.76 Whatever the reality the principle of the habitual offender informed attitudes within prison walls and prison reformers engaged in heated debates throughout the century on how best to treat those convicted by the courts.

English prisons operated for much of the nineteenth century in a two-tier system. There were a small number of newly built state prisons and a large number of local gaols that dated back to the eighteenth century and were administered by county quarter sessions and justices of the peace. The local institutions came under central inspection in 1835 before being finally amalgamated into a national prison network under the Prisons Act of 1877. The transformation of the prison was a lengthy process; reform came in waves and was often the product of compromise between different groups. The local magistracy were reluctant to surrender their long-established control over the imprisonment and punishment of offenders but the increased costs of the criminal justice system necessitated the relinquishing of power in return for central funding, albeit small funding at first. In some respects the Victorian period demonstrated the problems the authorities had in trying to standardize the treatment of offenders. In 1865 the Prison Act had amalgamated the old houses of correction (which had existed since Elizabethan times to punish vagrants and minor offenders), and the county gaols that had been originally created to house those awaiting trial or execution. The 1865 act created state-run convict prisons. In 1867 there were 126 local prisons, controlled by county and borough magistrates, paid for by rates and used to house petty criminals serving sentences of no more than two years alongside debtors, convicts awaiting execution and those awaiting trial. In addition there were just nine statefinanced convict prisons, plus an asylum for criminal lunatics. These were the institutions used to finally replace transportation to Australia as a penal option.

Between 1839 and 1895 the careers of two men, Joshua Jebb and Edmund Du Cane - both former soldiers - helped shape the English prison system. Joshua Jebb had designed a model penitentiary that allowed for the separation of criminals from each other throughout their confinement. The `separate' system was a controversial regime that advocated solitary confinement in the belief that it would force prisoners to undergo a crisis of conscience that would lead to a reformation of their characters." This policy was made manifest at Pentonville, which opened in 1842. As Michael Ignatieff's seminal study describes, the prisoners at the London gaol were held in isolation, masked when in contact with other prisoners, controlled by a series of bells and forced to undertake menial tasks with religious instruction as their only diversion." It drove some prisoners mad and probably failed to reform many others. The alternate system presented by opponent of solitary confinement was silence: prisoners could associate with each other during working hours but were not allowed to speak. Both systems were supposed to instill the principal of reform through internal contemplation.

However, Edmund Du Cane was less interested in improving the morals of his charges. In this respect he represented the late century attitude towards criminal justice in that he saw criminals and criminality as an inevitable problem of the age. For Du Cane reform was definitely secondary to control. Thus the prison system gradually merged the separate and silent systems into a universal process for breaking the spirit of new arrivals so that they could quickly become acclimatized to a regimented existence. Before penal servitude replaced it, prisoners under sentence of transportation had been `softened up' for a period of nine to eighteen months before they boarded ships bound for Australia. From 1853 onwards convicts might typically expect to receive a sentence of eight to ten years in prison. For the first nine months a prisoner would be held in solitary confinement then transferred to a public works prison - where he would be set to work improving the fortifications of the naval dockyards or on some other similar project. At Chatham convicts were, as Du Cane proudly reported, `employed in excavating, pile-driving ... brick-laying, concreting, stone-dressing and setting' as well as removing the excavated soil and operating steam locomotives and other machines. For working-class men this was not particularly onerous work but for those felons from the middle classes this sort of hard labour must have come as a rude shock to the system.79 At least this was productive work; prisoners on short sentences in local gaols or serving out their first nine months of solitary confinement had much less worthy employment.

The debate about whether prisoners should be kept in a separate or silent system was complemented by a parallel debate about the nature of work they should be required to perform. Some believed that prisoners should be used to defray the costs of their confinement and instigated schemes that used convict labour to make products, such as mailbags or shirts that could be sold at a profit. Naturally this did not please either those that felt a more punitive form of work was called for or local labour (represented by the trade unions) that resented the competition. Lord Carnarvon, who headed up a House of Lords committee in 1863, argued that the 1865 Prisons Act had called for the use of the `treadwheel, shot drill, [and] crank' and felt that allowing felons to undertake productive labour, however menial and backbreaking, was `less penal, irksome, and fatiguing' and therefore less of a punishment. Du Cane himself, despite the success of the public works scheme, tended to side with Carnarvon. Therefore Victorian prisoners were familiar with the treadwheel, hand crank and the numbing tasks of breaking rocks and picking oakum.