Imposing the royal pardon: Execution, transportation, and convict resistance in London, 1789

Law and History Review

Volumn 25, Issue 1, 2007, Pages 101-138

  Devereaux, Simon ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

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EID: 64949169398     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000001073     Document Type: Article

References (180)

1. Although they frequently take note of this procedure, no accounts from the printed Old Bailey Proceedings (hereafter OBSP) specifically state the respites to have been kneeling when receiving their pardons (as a search of 〈http://www.oldbaileyonline.org/〉 reveals, when using "knees" or "kneeling" as a keyword search). My sense, as will be apparent from the rest of this article, is that such a formality had given way in the face of the practical difficulties involved in conveying the king's intention to pardon to large numbers of respites on any given occasion
2. Here and in the following notes, I give shortened citations to the online version of the Old Bailey Proceedings 〈http://www.oldbaileyonIine.org/ 〉. Readers may find specific trials by going to the site and searching the proceedings by "reference number." The account given in this paragraph is derived from OBSP 1788-89, pp. 888-92, (s17890909-1); and The Times of London, 21 Sept. 1789
3. OBSP 1785-86, pp. 1162-63 (t17861025-3), 1186-89 (t17861025-10)
4. OBSP 1786-87, pp. 405-9 (t17870221-33), 646-53 (t7870523-17); OBSP 1787-88, pp. 52-57 (t17871212-34)
5. OBSP 1787-88, pp. 277-83 (t17880227-42), 543-47 (t17880625-10), 665-66 (t17880910-22); OBSP 1788-89, pp. 5-8 (t17881210-4)
6. For the subsequent fates of the eight men, see Michael Flynn, The Second Fleet: Britain's Grim Convict Armada of 1790 (Sydney: Library of Australian History, 1993), 196-97, 228, 238-39, 351-52, 435, 458-59, 503-4, 662
7. G. C. Bolton, "The Hollow Conqueror: Flax and the Foundation of Australia," in The Founding of Australia: The Argument about Australia's Origins, ed. Ged Martin (Sydney: Hale and Iremonger, 1978), 101-2
8. Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York: Macmillan, 1978), 91-92
9. Peter Jupp, Lord Grenville, 1759-1834 (Oxford: Clarendon Press, 1985), 90-91
10. Lynn MacKay, "Refusing the Royal Pardon: London Capital Convicts and the Reactions of the Courts and Press, 1789," London Journal 28.2 (2003): 21-40
11. James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven and London: Yale University Press, 1990)
12. See in particular Michael J. Braddick and John Walter, eds., Negotiating Power in Early Modern Society: Order, Hierarchy and Subordination in Britain and Ireland (Cambridge: Cambridge University Press, 2001), esp. 2-16
13. See for instance, Gareth Stedman Jones, "Class Expression versus Social Control? A Critique of Recent Trends in the Social History of 'Leisure,'" History Workshop Journal 4 (1977): 162-70
14. and Michael Ignatieff, "State, Civil Society and Total Institutions: A Critique of Recent Social Histories of Punishment," Crime and Justice: An Annual Review of Research 3 (1981): 153-91 (both reprinted in Stanley Cohen and Andrew Scull, eds., Social Control and the State: Historical and Comparative Essays [Oxford: Basil Blackwell, 1983], 39-19, 75-105)
15. MacKay, "Refusing the Royal Pardon," 37
16. The National Archives (hereafter NA; formerly the Public Record Office), Home Office Papers (HO) 13/11, p. 225
17. The Gentleman's Magazine 21 (1751): 425
18. The London Magazine 20 (1751): 427, 475 (mention of Gibson's action is entirely omitted from the places where we should expect to find it in OBSP 1750-51, pp. 177-78 (t7510523-25), 199 (s17510523-1)
19. For Burt see OBSP 1785-86, pp. 868-69 (t17860719-31); OBSP 1786-87, pp. 328-29 (o17870110-3), 462-63 (017870221-2)
20. These other seven were: Mary Talbot in December 1790 (The Annual Register 32 [1790]: 227), whose initial defiance goes unnoticed in OBSP 1790-01, p. 90 (o17901208-1)
21. Elizabeth Cummings in May 1791 (The Gentleman's Magazine 61 [1791]: 484), whose efforts are similarly unnoted in OBSP 1790-91, p. 402 (o17910608-2)
22. and the seven others noted in MacKay, "Refusing the Royal Pardon," 23, 37-38, n. 16
23. It is surprising that MacKay seems confident that the words of the respites are reproduced more or less verbatim in the OBSP, "unmuffled by the wrappings of deference" and thus affording us "a rare, small window into the minds of eighteenth-century plebeian capital convicts" ("Refusing the Royal Pardon," 21). By 1789 publication of the OBSP was largely funded and regularly monitored by the government of the City of London. See Simon Devereaux, "The City and the Sessions Paper: 'Public Justice' in London, 1770-1800," Journal of British Studies 35 (1996): 466-503
24. and Devereaux, "The Fall of the Sessions Paper: The Criminal Trial and the Popular Press in Late Eighteenth-Century London," in Crime, Punishment, and Reform in Europe, ed. Louis A. Knafla, Criminal Justice History; 18 (Westport, Conn.: Praeger, 2003), 57-88. For the sake of brevity, I will not pursue in detail a reservation that might be raised concerning any evaluation of the accuracy and fullness with which convicts' words may have been reproduced in the OBSP, but only note that it might raise some interesting questions surrounding how far exactly we might regard it as an "official" or "hidden" transcript, and force us to think a little more clearly about what such phrases may or may not mean in this context
25. The bibliography in this area has grown vast in recent years. Useful guides include several of the contributions to H. T. Dickinson, ed., Britain and the French Revolution, 1789-1815 (Basingstoke: Macmillan, 1989)
26. and Jennifer Mori, Britain in the Age of the French Revolution, 1785-1820 (Harlow: Longman Pearson, 2000)
27. Ralph A. Manogue, "The Plight of James Ridgway, London Booksellerand Publishers, and the Newgate Radicals, 1792-1797," The Wordsworth Circle 27 (1996): 158-66
28. Iain McCalman, "Newgate in Revolution: Radical Enthusiasm and Romantic Counterculture," Eighteenth-Century Life, n.s. 22 (1998): 95-110
29. Michael T. Davis, Iain McCalman, and Christina Parolin, eds., Newgate in Revolution: An Anthology of Radical Prison Literature in the Age of Revolution (New York: Continuum, 2005)
30. Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Allen Lane/The Penguin Press, 1991), esp. part iv
31. John Barrell, Imagining the King's Death: Figurative Treason, Fantasies of Regicide, 1793-1796 (Oxford: Oxford University Press, 2000)
32. John W. Derry, The Regency Crisis and the Whigs, 1788-9 (Cambridge: Cambridge University Press, 1963)
33. John Ehrman, The Younger Pitt, vol. 1
34. The Years of Acclaim (London: Constable, 1969), chap. 20
35. OBSP 1788-89 (June), p. 636 (o17890603-1)
36. A copy of the pamphlet is preserved at NA, Treasury Solicitor Papers (TS) 11/388. Most of it is reprinted in the account of the trial in T. B. Howell, ed., Cobbett's Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Mis-demeanors from the Earliest Period to the Present Time (34 vols., 1809-26), 2:175-236
37. A full account of the pamphlet, the government's responses and the significance of the incident is provided in Douglas Hay, "The Laws of God and the Laws of Man: Lord George Gordon and the Death Penalty," in Protest and Survival: The Historical Experience: Essays for E. P. Thompson, ed. John Rule and Robert Malcolmson (London: Merlin Press, 1993), 60-111
38. Howell, ed., Cobbett's State Trials, 2:184
39. OBSP 1788-89 (Sept), p. 890 (o17890909-7)
40. OBSP 1788-89 (Sept), pp. 890 (quote) (o17890909-8), (o17890909-9), 891 (o17890909-12)
41. The Times of London, 21 Sept. 1789 (emphases in original); The Whitehall EveningPost, 19-22 Sept. 1789
42. Thus, in December 1786, Joseph Wooley, suspected by the judge of having committed a theft "with an intention of being transported to Botany Bay," found himself instead sentenced to be transported to Africa (OBSP 1786-87, p. 67 [t17861213-32]). One may also compare another suspicion of 1787 that Botany Bay was attractive enough a prospect actually to encourage criminality (The Times, 6 Jan. 1787) with the later relief, once news of the new settlement had arrived and been disseminated, that it was - like death - a place "From whose bourne no Traveller returns" (The Morning Chronicle, 14 Jan. 1791, 6 Dec. 1791)
43. Historical Manuscripts Commission [Series 30], The Manuscripts of J. B. Fortescue, Esq., Preserved at Dropmore (hereafter HMC [30] Dropmore Papers; 10 vols., London: HMSO, 1892-1927), 1:518 (emphasis added)
44. OBSP 1789-89 (April), pp. 483-85 (o17890422-1)
45. The Times, 1 May 1789
46. Two of the women, Sarah Storer and Sarah Cowden, were exceptions. In both April, and then again in June (even when their fellow respites had submitted or were shortly to do so), the grounds on which they attempted to refuse their pardons were that their original convictions were unjust. See OBSP 1788-89, pp. 483 (o17890422-1), 634-36 (o17890603-1); and MacKay, "Refusing the Royal Pardon," 21-27)
47. OBSP 1788-89 (Sept), pp. 888 (o17890909-2), 890-91 (o17890909-9)
48. The process can be followed from the dates on the group pardons recorded in the government's "Criminal Entry Books" (NA, Secretary of State Papers [SP] 44/79a-96) and the notices of those convicts' appearances in court recorded in the OBSP
49. Simon Devereaux, "The Making of the Penitentiary Act, 1775-1779," Historical Journal 42 (1999): 405-33 (esp. 423-24, 428-29)
50. this discussion is expanded upon in Devereaux, Convicts and the State: Criminal Justice and the English Government, 1750-1810 (forthcoming), chap. 4
51. See also William Branch-Johnson, The English Prison Hulks, rev. ed. (Chichester: Phillimore, 1970)
52. Wilfrid Oldham, Britain's Convicts to the Colonies (Sydney: Library of Australian History, 1990), chap. 3
53. and Charles Campbell, The Intolerable Hulks: British Shipboard Confinement, 1776-1857, 3rd ed. (Tucson: Fenestra Books, 2001), esp. chap. 3
54. For a more optimistic portrait of the early hulks system, see Alan Frost, "Overcrowded Hulls, Foetid Sinks? The Hulks System and the Thames Hulks, 1776-1786," in his Botany Bay Mirages: Illusions of Australia's Convict Beginnings (Melbourne: Melbourne University Press, 1994), 9-41
55. Concise summaries of the search for an alternative convict settlement are provided by Ged Martin, "The Foundation of Botany Bay, 1778-90: A Reappraisal," in Reappraisals in British Imperial History, ed. Ronald Hyam and Ged Martin (London: Macmillan, 1975), 44-74
56. and Martin, "The Founding of New South Wales," in The Origins of Australia's Capital Cities, ed. Pamela Statham (Cambridge: Cambridge University Press, 1989), 37-51
57. OBSP 1783-84 (May), pp. 790-91 (t17840526-80); OBSP 1786-87 (Dec), pp. 65-66 (t17861213-31)
58. OBSP 1788-89 (Sept), p. 890 (quote) (o17890909-6)
59. OBSP 1786-87 (May), p. 499 (t17870418-33)
60. OBSP 1788-89, pp. 483 (o17890422-1), 634 (o17890603-1)
61. J. A. Sharpe, "'Last Dying Speeches': Religion, Ideology and Public Execution in Seventeenth-Century England," Past & Present 107 (May 1985): 144-67
62. V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford: Oxford University Press, 1994), 33-37, 109-11, 138-44
63. Andrea Katherine Mc-Kenzie, "Lives of the Most Notorious Criminals: Popular Literature of Crime in England, 1675-1775" (Ph.D. thesis, University of Toronto, 1999), 346-93. There is strikingly little discussion of this theme in modern scholarly studies, even-remarkably, considering its theme of the London gallows as a medium for class conflict-Linebaugh's London Hanged
64. Andrea McKenzie, "Martyrs in Low Life? Dying 'Game' in Augustan England," Journal of British Studies 42 (2003): 167-205
65. Steven Wilf, "Imagining Justice: Aesthetics and Public Executions in Late Eighteenth-Century England," Yale Journal of Law and the Humanities 5 (1993-94): 51-78
66. Gatrell, Hanging Tree, 601-4
67. Simon Devereaux, "Recasting the Theatre of Execution in London: The End of Tyburn," Past & Present (forthcoming)
68. Lloyd's Evening Post, 3-5 Dec 1770
69. The Morning Chronicle, 14 Sept. 1773, 28 Oct. 1773, 30 Jan. 1777
70. The London Magazine 45 (1776): 54
71. Andrew Oliver, ed., The Journal of Samuel Curwen, Loyalist (Cambridge and Salem, Mass.: Harvard University Press/Salem Institute, 1972), 942-43
72. Lloyd's Evening Post, 10-12 July 1780
73. The use of such decor had been anticipated twenty years earlier when the carts conveying five convicts to Tyburn "were lined, for the first time, with black cloth" (The London Magazine 32 [1763]: 616)
74. [Frederick Augustus Wendebom,] A View of England Towards the Close of the Eighteenth Century (London, 1791), 1:78
75. Andrea McKenzie, "From True Confessions to True Reporting? The Decline and Fall of the Ordinary's Account," London Journal 30.1 (2005): 55-70
76. see also Peter Linebaugh, "The Ordinary of Newgate and His Account," in Crime in England, 1550-1800, ed. J. S. Cockburn (Princeton: Princeton University Press, 1977), 246-68
77. British Library (hereafter BL), Additional Manuscript (Add MS) 59356, ff.59-60, Under Secretary Evan Nepean to Home Secretary William Grenville, 1 m/45 p[ast] 1 pm, 8 Sept. [1789]
78. "Quarter sessions" is a misnomer in this instance, because the necessity for all criminal indictments to first be heard before grand juries at quarter sessions meant that, unlike the rest of the country, "quarter" sessions for the City and for Middlesex were in fact held eight times per year in order to accommodate felony trial at the Old Bailey
79. The workings of justice in London, and the nature and extent of interactions between officials of the City and Middlesex and those of government, during the Restoration and early Hanoverian eras are explored in J. M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001)
80. This particular aspect of the relations between London and governmental officials from the 1750s onward is explored in Devereaux, Convicts and the State (forthcoming), part 2
81. BL, Add MS 59356, ff.59-60, Nepean to Grenville, 1 m/45 p[ast] 1 pm, 18 Sept. [1789]
82. BL, Add MS 59356, ff.61-62, Nepean to Grenville, 4 pm, 19 Sept. [1789]
83. HMC [30] Dropmore Papers, 1:516
84. BL, Add MS 59356, ff.65-66, Recorder of London to Nepean, 9 pm, 19 Sept. 1789
85. BL, Add MS 59356, ff.63-64, Nepean to Grenville, 10 pm, [19 Sept. 1789]; HMC [30] Dropmore Papers, 1:516-18
86. OBSP 1788-89, p. 980 (o17891028-1)
87. Jupp, Lord Grenville, 91
88. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-69), 4:394
89. The Annual Register 25 (1782): 220
90. Incomplete accounts of this communication also appear in The Gentleman's Magazine 52 (1782): 452
91. and The New Annual Register 3 (1782): 59.1
92. have been unable to locate an official copy in the Home Office entry books for this time (NA, HO 13 and HO 43), but the corroboration of these other two periodicals and - above all - the subsequent practice of capital punishment in London suggest to me that The Annual Register's text is probably authentic
93. For similar policies at work outside of London during the 1780s, see J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 582-92
94. and Peter King, Crime, Justice and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), 273-78
95. For purposes of consistency over time, I have eliminated from this figure two large groups of people hanged for singular, large-scale criminal incidents: the twenty-one people hanged in 1780 for the Gordon Riots; and the eight people hanged in 1783 for participating in the rebellion on board the convict ship Swift
96. Brotherton Collection (Leeds University), Sydney/Townshend Papers K22, the Duke of Richmond to Lord Sydney, 7 April 1786
97. The Gentleman's Magazine 50 (1780): 541
98. see also ibid., 481-83
99. and ibid., 53 (1783): 891
100. For execution and imprisonment on the continent at this time, see Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984), chap. 6
101. and Spierenburg, The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe (New Brunswick: Rutgers University Press, 1991)
102. Beattie, Policing and Punishment, 277-82
103. Philippe Rosenburg, "Sanctifying the Robe: Punitive Violence and the English Press, 1650-1700," in Penal Practice and Culture, 1500-1900: Punishing the English, ed. Simon Devereaux and Paul Griffiths (Basingstoke: Palgrave Macmillan, 2004), 157-82
104. and Randall McGowen, "The Problem of Punishment in Eighteenth-Century England," in ibid., 210-31
105. Beattie, Crime and the Courts, 519-53; Nicholas Rogers, "Confronting the Crime Wave: The Debate over Social Reform and Regulation, 1749-1753," in Stilling the Grumbling Hive: The Response to Social and Economic Problems in England, 1689-1750, ed. Lee Davison, Tim Keirn, Tim Hitchcock, and Robert B. Shoemaker (Stroud: Alan Sutton, 1992), 77-98
106. Richard Connors, "'The Grand Inquest of the Nation': Parliamentary Committees and Social Policy in Mid-Eighteenth-Century England," Parliamentary History 14 (1995): 285-313
107. Hugh Dunthorne, "Beccaria and Britain," in Crime, Protest and Police in Modern British Society: Essays in Memory of David J. V. Jones, ed. David W. Howell and Kenneth O. Morgan (Cardiff: University of Wales Press, 1999), 73-96
108. Anthony J. Draper, "Cesare Beccaria's Influence on English Discussions of Punishment, 1764-1789," History of European Ideas 26 (2000): 177-99
109. Draper, "William Eden and Leniency in Punishment," History of Political Thought 22 (2001): 106-30. The general neglect (until recently) of a "history of reform," prior to the 1760s-70s - the era entrenched as the birth of "modern" thinking on English criminal law in Leon Radzinowicz, A History of the English Criminal Law and Its Administration from 1750, 5 vols., (London: Stevens & Sons, 1948-86), 1: part 3 - is probably the intellectual heritage of such forerunning historians of English criminal law as James F. Stephen and William Holdsworth
110. Beattie, Crime and the Courts, chap. 10
111. Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718-1800 (London: UCL Press, 1998)
112. King, Crime, Justice and Discretion, passim
113. The Gentleman's Magazine 53 (1783): 891, 973; see also 54 (1784): 955
114. The Gentleman's Magazine 55 (1785): 319; see also 53 (1783): 802; 55 (1785): 484; 56 (1786): 990; and 57 (1787): 84-85
115. The London Magazine, n.s. 4 (1785): 144, 305, 386
116. The Times of London, 20 Sept. 1785 (as quoted in A. H. Manchester, ed., Sources of English Legal History: Law, History and Society in England and Wales, 1750-1950 [London: Butterworths, 1984], 274-75), 6 Jan. 1787
117. The Monthly Review 72 (1785): 146,382-83; 74 (1786): 300; 75 (1786): 74, 231-32, 304-5; 78 (1788): 338-39
118. The Monthly Review, 2d ser., 2 (1790): 348; 4 (1791): 355; 5 (1791): 350; 9 (1792): 349-50; 10 (1793): 232; 13 (1794): 108-9; 20 (1796): 403-15
119. G. B. Hill and L. F. Powell, eds., Boswell's Life of Johnson, 5 vols. (Oxford: Clarendon Press, 1934-50), 4:328
120. Irma S. Lustig and Frederick A. Pottle, eds., Boswell: The Applause of the Jury, 1782-85 (New York: McGraw-Hill, 1981), 304-5, 338
121. Lustig and Pottle, eds., Applause of the Jury, 304-5, 338
122. For more on Boswell's sympathetic identification with executed felons, see Philip Carter, Men and the Emergence of Polite Society in Britain, 1660-1800 (London: Longman, 2001), 192-93
123. William Cobbett, The Parliamentary History of England, from the Earliest Period to the Year 1803, vol. 25, 1785-86, 888-89
124. For the larger contexts of this measure, see David Philips, "'A New Engine of Power and Authority': The Institutionalization of LawEnforcement in England," in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker (London: Europa, 1980), 155-89
125. and Ruth Paley, "The Middlesex Justices Act of 1792: Its Origins and Effects" (Ph.D. thesis, University of Reading, 1983)
126. Radzinowicz, History of the English Criminal Law, 1:446-48
127. The Annual Register 31 ( 1789): 196
128. The Gentleman's Magazine 58 ( 1788): 926-27, 1024, 1117; 59 (1789): 271, 272
129. Arthur Aspinall, ed., The Later Correspondence of George III, 5 vols. (Cambridge, 1962-70), 1:402 (my emphasis)
130. William L. Clements Library (University of Michigan, Ann Arbor), Pitt Papers 2, William Pitt to Lord Sydney, 10 March 1789
131. The numbers hanged in London would increase once more to near-1780s levels in the crisis of the post-Napoleonic War crime wave, but the severe responses of the early 1820s would quickly give way once more to restraint. For differing interpretations of government perceptions and practices on the eve of reform, see Gatrell, Hanging Tree, part 6
132. and Simon Devereaux, "Peel, Pardon and Punishment: The Recorder's Report Revisited," in Penal Practice and Culture, ed. Devereaux and Griffiths, 258-84
133. Abbott Emerson Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607-1776 (Chapel Hill: University of North Carolina Press, 1947)
134. Peter Wilson Coldham, Emigrants in Chains: A Social History of Forced Emigration to the Americas of Felons, Destitute Children, Political and Religious Non-Conformists, Vagabonds, Beggars and Other Undesirables, 1607-1776 (Baltimore, Md: Genealogical Publishing, 1992)
135. Cynthia Herrup, "Punishing Pardon: Some Thoughts on the Origins of Penal Transportation," in Penal Practice and Culture, ed. Devereaux and Griffiths, 121-37
136. Beattie, Crime and the Courts, chap. 9; A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford: Clarendon Press, 1987), chap. 1
137. Beattie, Policing and Punishment, esp. chap. 9
138. Accounts of these voyages can be found in A. Roger Ekirch, "Great Britain's Secret Convict Trade to America, 1783-1784," American Historical Review 89 (1984): 1285-91
139. and Oldham, Britain's Convicts to the Colonies, 80-94
140. The information that survives from these expeditions does not appear to be sufficiently extensive that we can know with certainty the exact proportion of London convicts on board; a rough calculation is made in Simon Devereaux, "Convicts and the State: The Administration of Criminal Justice in Great Britain during the Reign of George III" (Ph.D. thesis. University of Toronto, 1997), 254, n. 149
141. House of Commons Parliamentary Papers, 1810 (45) XIV, pp. 1-58
142. Ekirch, Bound for America, 48-19
143. Reprinted in The Gentleman's Magazine 56 (1786): 263-64
144. David Mackay, A Place of Exile: The European Settlement of New South Wales (Melbourne: Oxford University Press, 1985), 57-58; NA, HO 35/10, George Teer to the Commissioners of the Navy, 3 Feb. 1789
145. I owe thanks to Dr Jonathan Fulcher of Brisbane, Australia for emphasizing this point in his comments on an earlier version of this article and obliging me to think a little harder about it
146. Some of these concerns can be followed in Wilf, "Imagining Justice," and Devereaux, "City and the Sessions Paper." A fuller discussion of them would embrace such topics as the enhanced scale of public whipping in the metropolis during the 1770s and '80s, as well as new courtroom and prison architecture and the much-enhanced role of defense lawyers in criminal trial from the 1780s onward. For architecture, see Robin Evans, The Fabrication of Virtue: English Prison Architecture, 1750-1840 (Cambridge: Cambridge University Press, 1982)
147. and Christopher Chalkin, English Counties and Public Building, 1650-1830 (London: Hambledon Press, 1998), chaps. 7-10
148. For defense lawyers see J. M. Beattie, "Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221-67
149. John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)
150. and Allyson N. May, The Bar and the Old Bailey, 1750-1850 (Chapel Hill: University of North Carolina Press, 2003)
151. OBSP 1788-89, pp. 887-88 (s17890909-1). By comparison, only nineteen received terms of imprisonment, fourteen were ordered to be whipped, and two were fined
152. BL, Add MS 59356 ff.65-66, Recorder of London to Nepean, 9 pm, 19 Sept. 1789
153. See also OBSP 1788-89, pp. 889 (o17890909-4), 890 (o17890909-7)
154. I hope to develop this argument at greater length in future work; some preliminary observations are made in "The Criminal Branch of the Home Office, 1782-1830," in Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie, ed. Greg T. Smith, Allyson N. May, and Simon Devereaux (Toronto: Centre of Criminology, 1998), 270-308
155. Beattie, Policing and Punishment, 458-61 ; House of Commons Parliamentary Papers, 1819 (585) VIII, pp. 146-54
156. OBSP 1788-89 (June), p. 634 (s17890909-1)
157. The Annual Register 32 (1790): 227; 33 (1791): 18, 37; 34 (1792): 5
158. HMC [30] Dropmore Papers, 1:518-19, 523
159. NA, HO 48/1 A, Attorney General Richard Pepper Arden to Lord Sydney, n.d. [ca. Aug.-Oct. 1784]
160. NA, HO 13/11 pp. 224-25, 225, Recorder of London to the Duke of Portland, 27 June 1797; and reply, 29 June 1797
161. NA, HO 48/8, Attorney General John Scott and Solicitor General John Mitford to the Duke of Portland, 5 April 1799
162. The provisions of this Act were not extended to London, however, because the king retained a direct role in deciding all reprieves or hanging through the procedure of the Recorder's Report, and Tory ministers were unwilling to legislate so overt and explicit a restriction of monarchical prerogative
163. Alan Atkinson, "The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire," Past & Present 144 (August 1994): 88-115
164. Blackstone, Commentaries, 4:390
165. Randall McGowen, "The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England," Buffalo Law Review 32 (1983): 89-125
166. Martin Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830-1914 (Cambridge: Cambridge University Press, 1990), 56-67
167. See Figure 1; OBSP 1788-89 (Sept.), pp. 887-88 (s17890909-1)
168. and The Gentleman's Magazine 59 (1789): 1045
169. Andrea McKenzie, "'This Death Some Strong and Stout Hearted Men Doth Choose': The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England," Law and History Review 23 (2005): 279-313
170. The Times of London, 11 Aug. 1809. It may be significant that Jones's execution was one of several during the 1790s and 1800s that were conducted, not immediately outside Newgate, but across the street from it, thus allowing the physical and psychological space between the condemned and the crowd to be bridged. Presiding officials may also have seen it as more practical to allow such speeches on those occasions - far more numerous during these years-when only one person was being hanged rather than a group
171. The Times of London, 27 Feb. 1800
172. Thomas W. Laqueur, "Crowds, Carnival and the State in English Executions, 1604-1868," in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. A. L. Beier, David Cannadine, and James M. Rosenheim (Cambridge: Cambridge University Press, 1989), 305-55
173. Gatrell, Hanging Tree, 56-105, 601-11
174. The increased concern of City officials regarding unruly crowds at executions, as manifested by the appointment of extra constables, is described in Andrew T. Harris, Policing the City: Crime and Legal Authority in London, 1780-1840 (Columbus: Ohio State University Press, 2004), 58-70
175. The most influential analysis of "theater" and "counter-theater" in eighteenth-century English social relations is E. P. Thompson, "Patrician Society, Plebeian Culture," Journal of Social History 7 (1973-74): 382-105
176. and idem, "Eighteenth-Century English Society: Class Struggle Without Class?" Social History 3 (1978): 133-65, subsequently re-worked as "The Patricians and the Plebs," in Thompson's Customs in Common (London: Merlin Press, 1993), 16-96
177. The impact of Thompson's perspective, both early and recent, is apparent in Keith Wrightson, English Society, 1580-1680 (London: Hutchinson, 1982), and Douglas Hay and Nicholas Rogers, Eighteenth-Century English Society: Shuttles and Swords (Oxford: Oxford University Press, 1997)
178. For a considered critique of it, see Peter King, "Edward Thompson's Contribution to Eighteenth-Century Studies: The Patrician-Plebeian Model Re-Examined," Social History 21 (1996): 215-28
179. One convict, George Owen, was respited at seven a.m. while being "haltered, and preparing for execution" inside Newgate, but the gesture was hidden from the crowd without (New Annual Register 5 [1784]: 106-7)
180. The formal sentencing of death at sessions' end, however, could still afford room for a show of defiance. One man sentenced to death in June 1791 reportedly "went from the Bar laughing, while the rest of the Prisoners were crying round him" (The Morning Chronicle, 15 June 1791). And the friends and relatives of the condemned might still provide their own critique. After the death sentences were handed down at another sessions, it was reported that "A most dreadful scene now presented . . . eight boys and seven women stood on the bail-dock for several minutes, filling the Court with shrieks and cries, imploring mercy - the whole Court and auditory seemed to feel sensations of the most interesting nature" (The Times of London, 19 Dec. 1789). If we may judge accurately from contemporary reports, however, such scenes were rare