Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789

By: Simon Devereaux

Their Own Executioners 
Shortly after two o’clock on the afternoon of Saturday, 19 September 1789, the last act of the sessions at Justice Hall in the Old Bailey began. London’s accused capital offenders were tried here eight times yearly. Those who were convicted and received sentence of death or transportation remained in nearby Newgate Prison until their sentences could be carried into execution. So, too, did the capital respites: those convicts who were to be spared execution but who would not actually be pardoned until the Recorder of London, the chief sentencing officer at the Old Bailey, had decided what condition should be imposed. The vast majority of pardoned capital respites were transported to New South Wales. Before that condition of pardon could be put into effect, however, the respites had first to be brought back into the court at the end of another sessions in order to be formally notified, and to signal their acceptance, of the condition of their pardon—that is, to “plead their pardon” at the bar of the court. Although it is unclear from the sources whether or not the respites were still obliged, as they had been down to the 1690s at least, to present the most overt symbol of deference—kneeling while pleading their pardon—the symbolic significance of this procedure seems still to have been thought important, even if it had become largely a formality.11
      The events of this particular day, however, when the first fourteen of no less than ninety-five capital respites were brought in to learn of their final disposition, would prove to be remarkably different.2 The first convict brought to the bar, John Boxley, had been convicted of robbery in October 1786 and now accepted a long-delayed pardon on condition of transportation for life. The trouble began with William Davis and William Rayner, who had been jointly convicted of a similar offense during the same sessions as Boxley.3 Rayner accepted the same conditional pardon as had Boxley, but his former associate did not. “Death is more welcome to me than this pardon,” proclaimed Davis. The Recorder warned him to “accept the terms of the king’s pardon” or else be issued an immediate warrant for his execution and thereby “throw away that life which you now have an opportunity of saving.” But Davis would not be moved, and he was sent to the condemned cells in Newgate. The next two convicts, James Watts and Francis Hardy, convicted of robbery in December 1786, professed the injustice of their original convictions. Their complaints were heard at some length, but both finally accepted sentences of transportation for life, though not before affording the Recorder an opportunity of warning the other respites present that “no man who refuses the king’s pardon, and treats it with contempt, can expect after that, to receive any favour from the crown….” Seven of the nine remaining men who followed, however, proved equally obstinate. John Robinson, convicted a year-and-a-half earlier of stealing a horse, insisted that he would rather “go to my former sentence” and joined William Davis in the condemned cell. So too did George Hyser, convicted of robbery in May 1787, and Edward Crowther, convicted of burglary in December of that same year.4 By this time the Recorder was determined to “spare myself the pains of repeating to every prisoner” his promise of immediately signing death warrants for the recalcitrant. But four more prisoners—Thomas Messenger, Thomas Newby, James Dawson and Thomas Chaffey—still claimed to prefer death to transportation and were sent to the condemned cells before order was restored to the proceedings.52
      Later that evening, five of them changed their minds and accepted transportation for life after all. Only Davis, Crowther, and Chaffey—the latter convicted of a robbery in December 1788—remained determined to die rather than be transported. Four days later, they too at last gave in.6 Thus ended quietly what had begun as a remarkable display of defiance to the professed “mercy” of English criminal law. For several days, however, that display had caused serious difficulties in the uppermost legal and administrative branches of government, one of the twelve high court judges having expressed doubts as to whether the royal pardon could be denied a prisoner once the intention to award it had been explicitly announced, and thus casting doubt on the legality of any threat of subsequent execution. Fortunately for all the officials concerned, the three obstinate hold-outs changed their minds before this legal reservation—whose awkward implications will be made fully apparent in the course of what follows—could be put to the test. Only a few historians have mentioned the resistance of these men, as well as that, five months earlier, of seven female respites at the Old Bailey. But neither the administrative pressures underlying them nor their larger significance for penal practice and ideology in late eighteenth-century London have been fully examined.73
      A recent article by Lynn MacKay is the first work to consider the nature and significance of these displays of resistance by the capital convicts.8 For MacKay, the best explanation for this phenomenon is to be found through reference to James B. Scott’s notion of “official” and “hidden” transcripts. In his study of Asian peasant societies, Scott argues that ruling elites left us their own, inevitably self-serving, accounts of the rationales and techniques by which their authority was maintained in society. These “official transcripts” mask, but never entirely eclipse, the “hidden” ones—the rhetoric and actions by which those who were ruled managed to practice “the arts of resistance”: that is, to protest and sometimes even to invert the norms of official authority.9 Scott’s analytical framework has found much favor among recent historians of pre-industrial England because it provides an attractively simple yet dynamic model of social relations and governing authority.10 On the one hand, it avoids monolithic and mono-directional descriptions of prevailing structures of social and administrative relations, a difficulty that troubled many early exponents of the history of “social control” in England.11 At the same time, it simultaneously evokes and incorporates the many means—too often invisible in the formal historical record—by which the “ruled” were often able, not only to resist, but sometimes to effect changes in the balance of powers and positions over time. Thus Scott’s methodology affords a way of accounting for the clear limits to which any prevailing system of authority was ultimately subjected, without resorting to what many historians would consider a nihilistic retreat to the study solely of discursive practices. MacKay deploys Scott’s methodology to considerable effect in arguing that the events of 1789 reveal how “the plebeian actors in this episode” managed “publicly to mock with impunity … the [professed] justice and humanity of the courts.”124
      By contrast, this article explores the particular events of September 1789 and their wider significance largely by reference to the problems and perceptions of the governing elites—or, if preferred, the “official transcripts” of the incidents. Where MacKay’s article focuses principally on the defiance of the women of April 1789 (primarily, indeed, on one of the most determined of those women, Sarah Cowden), this one is concerned with the more extensively documented reactions of legal and governmental officials to the defiance posed by the men of September 1789. It argues that official responses reveal a closer engagement with the problems of administering criminal justice in London during the 1780s than historians have generally ascribed to them. The refusal of three men to accept pardon on condition of transportation to New South Wales confronted officials with a seemingly intractable problem, because those officials were still operating within the mind-set of a system in which punishments were conceived as being determined in a discretionary and essentially individualized manner, rather than on the basis of increasingly fixed legal definitions and clear, uniformly imposed guidelines. Bound by an increasingly pressing sense of public scrutiny on the one side and the practical limits imposed by unprecedentedly large number of capital convictions on the other, judicial and governmental officials had to find a consistently applied means of punishing serious offenders with as much severity as the offense and the offender seemed to warrant, without resorting to sanctions that might call into question the moral authority of the criminal law and its administrators.5
To Suffer as a Man: The Nature and Limits of Convict Resistance by 1789 
Any attempt to explain the significance of resistance among the capital convicts of the Old Bailey, for both the convicts themselves and for the officials seeking to force them to accept pardon, must also explain why such displays appear to have been almost entirely limited to the decade from the mid-1780s to the mid-1790s. The explanation for their subsequent disappearance is clear enough. In June 1797 the Attorney and Solicitor General informed the government that a clause of the 1784 Transportation Act rendered unnecessary the longstanding custom of requiring London’s capital convicts formally to accept in open court the offer of conditional pardon.13 From that time forward, judges were empowered to treat a “pardon” on condition of transportation as tantamount to a sentence to that effect. Equally significant, however (and this is a difficulty with which any invocation of longstanding “arts of resistance” must come to grips), is the absence of any clear tradition of such resistance by respites before the 1780s. The only two people for whom evidence can be found are Philip Gibson in September 1751 and Samuel Burt in July 1786.14 Between December 1790 and July 1794, nine more respites made temporary displays of refusing pardon on condition of transportation to New South Wales.15 It is not impossible that more such examples of defiance took place without leaving any mark in the records of government or the periodicals of the day. If this were so, however, it would be puzzling why no such similar suppression of the record was practiced during the 1780s, a time in which (as we will see) official desire for such suppression might reasonably have been expected to be at its highest levels.166
      Assuming that the displays of 1789 were certainly the most dramatic ones in terms of scale and significance, what then might we infer the motives and calculations of the convicts to have been? In the light of recent work on various aspects of criminal justice and the law in late eighteenth-century England, at least six possible explanations may be considered, one or more of which might plausibly have overlapped with another in the minds of the respites. First, they may have been trying to make a statement of radical political defiance of established authority in general. Second, they may have been mounting a specific attack on monarchical authority, something that King George III’s recent bout with insanity and the consequent crisis over a potential Regency (to say nothing of concurrent events in France) may have substantively undermined. Third, they may have been seeking particularly to undermine the English law’s professedly religious foundations. Fourth, they may have viewed hanging as a fate genuinely to be preferred to transportation to New South Wales, or even further confinement in Newgate or on board the prison hulks. Fifth, they may have perceived defiance in open court to be their one remaining public venue for defiance of the law in general, given the greater control that authorities in London could exert over execution displays following the 1783 abolition of the traditional procession of the condemned to Tyburn. Sixth and finally, they may have had a particularly shrewd appreciation of, and specifically meant to exploit, the dilemma posed to officials in the governments of the nation and its capital alike by the extreme disjunction—never more sharply felt than during the 1780s—between the symbolic purposes of the law’s workings on the one hand, and the practical difficulties involved in its actual operation on the other. Each possibility will be considered in turn.7
Respite Revolutionaries? 
Given the global significance of the year 1789 in political history, we might consider whether the convicts’ defiance possessed any substantially radical political implications. Were the convicts making some larger statement about the situation of those members of society who shared their social and economic station? The answer would appear to be “no.” For one thing, it is generally accepted among historians that English political elites—mindful of their own delivery from an absolutist monarch precisely a century earlier—initially greeted the events in France with a sense of satisfaction. It would not be until the publication of Burke’s Reflections in the following year, and especially the violent turn of events in Paris from September 1792, that most of England’s rulers (and more than a few of its people at large, so many recent historians have argued) would adopt a more decidedly reactionary outlook on the French Revolution.17 Moreover, since the Revolution had only begun in the summer of 1789, its influence might plausibly be attributed only to the eight men of September of that year and not to the women in April. In any case, and most fundamentally, neither the men nor the women clearly invoked any larger, explicitly politicized basis for their resistance.8
      Had the incident occurred only a few years later, we might reasonably expect the convicts to have been regularly exposed to radical political thinking. From the spring of 1792 and for much of the rest of the 1790s, Newgate was home to a significant number of radical free-thinkers and political activists who were imprisoned for various libels during that anxious decade.18 But, with one certain (and potentially significant) exception, none of these men were in Newgate in 1789, and there is no evidence that any of the convicts might have been exposed to such thinking by any other means. Nor do any of the convicts appear to have resisted on the basis of that larger sort of opposition to the criminal law as a form of social-economic discipline that Peter Linebaugh claims for London’s capital convicts during the eighteenth century. Such an absence need not come as a surprise, however, because Linebaugh himself believes such resistance to have been largely overcome by the 1780s.199
Imagining the King’s Irrelevance 
John Barrell’s recent argument that the Revolutionary era produced a new language for conceiving the overthrow of established monarchical authority suggests a second possible avenue of interpretation.20 Might the respites have felt empowered to defy the offer of a royal pardon because they sensed the English monarch’s declining moral authority? Recent events certainly raise such a possibility. It had still been only a few months since George III had recovered from his first major bout with the insanity into which he would definitively lapse two decades later. The consequent political crisis over the appointment of a regent had provoked serious questions regarding the capacity of government to impose explicit bounds upon an authority that was still ostensibly derived from God Himself rather than the people at large.21 Though it is tempting to perceive such an interesting shift in the thinking of the Old Bailey respites, however, none of the men clearly invoked any such basis for their defiance.10
      Indeed, the prolonged resistance of Sarah Cowden, whose initial defiance in April 1789 was overcome two months later only after a lawyer intervened with the court on her behalf, is particularly revealing in this regard. “I am sorry for the trouble I gave the Court,” she at last conceded, “but I expected to have my liberty, every session, for fifteen months past; Lord Sydney was my friend, and I understood I was not to go abroad.”22 Cowden was explicitly invoking the practical authority over the pardon system, not of the king in whose name it operated, but rather of his Home Secretary, at that time Lord Sydney. Such evidence of awareness among convicts, even those long-confined within jail, of the real—as opposed to the symbolic—operations of the criminal law by the late 1780s is well worth bearing in mind.11
The Respites and Religion 
The presence in Newgate during 1789 of one particular person opens a third avenue of interpretation regarding the convicts’ behavior. Lord George Gordon, later a close associate of the several radicals confined in Newgate during the 1790s, had been imprisoned there since early 1788 following his conviction on a charge of libel concerning a twenty-two page pamphlet he had written and sought to distribute among the convicts in the prison.23The Prisoners Petition … to Preserve their Lives and Liberties, and Prevent their Banishment to Botany Bay (1787) purported to be a plea from the capital convicts for a truly righteous justice of a sort that could not be found in England. “There is now but a step between us and eternity,” the text reads: “the Hangman and the scaffolding of the New Drop, is already prepared for our executions on one hand, and Governor Philip, and military tyranny, at Botany Bay, await us on the other; we are accounted as sheep for the slaughter, as men of death in the eye of the law of England, copied from the laws of Draco, written in blood …” (10–11). A legal code that afforded only a choice of equal barbarities as punishment for theft could not possibly invoke any supreme being for its authority. “Where is our God!” the text cries:
If we had committed capital crimes, and were to be judged and executed according to God’s law, our souls would then be justly cut off from the face of the earth, from the bosom of Abraham, and from the presence and pardon of God to all eternity; … but let not our blood fall to the earth before the face of the Lord for the pardonable trespasses of thievery, for which the Saviour does not require our blood…. Be wise now therefore, O ye Kings; be instructed, ye Judges of the earth. A true law hath the Almighty given to his people, by the hand of Moses his servant, the faithful in his house. The Almighty, will never change or alter his law…. There is one lawgiver, who is able to save and to destroy: who are thou that judgest another? (20, 21–22)Perhaps some of the 1789 respites had spoken with Gordon during their long confinement and were influenced by his thinking. Certainly his pamphlet and its sentiments were deemed sufficiently dangerous to warrant official repression, and it may have seemed particularly dangerous given Gordon’s efforts to share them with the capital convicts themselves. (If this were so, however, it begs a question as to why, after his conviction for that libel, Gordon was imprisoned in Newgate and not someplace else!) So bald an attack on authority’s ultimate justification could not be tolerated, as the Attorney General made clear: “no country upon earth can subsist if any subject of that country is permitted to attempt to infuse into the minds of its inhabitants an opinion, that the laws of that country are contrary to the laws of God, and that therefore they ought to be resisted…. [T]his gross libel carries upon the face of it the language of holy writ; and the scriptures of God are made use of to induce the people of this country to resist its laws.”24 Even worse, Gordon maintained that the sole punishment other than death presently imposed on capital convicts, transportation to New South Wales—a punishment of whose real character neither he nor anyone else could have known anything in 1787—was deemed to be equally objectionable: a “military tyranny” in place of death.
      Gordon’s arguments against the pretended religious basis of the capital code may indeed have influenced some of the men who initially rejected their pardons in September 1789. George Hyser not only insisted upon his determination to be hanged rather than transported, but also used the few words attributed to him to assert (twice) his right to having “proper time to make my peace with my Maker.” In so doing, he might have been implicitly denying the Recorder’s claim—and, by extension, that of the English criminal law—to mediate a convict’s relation with God by insisting upon an immediate execution. Another convict, John Robinson, on being sent down to the condemned cell, cryptically remarked that “I find I am in the hands of men,” another denial perhaps of the sacred authority that the Recorder, like all other judges, invoked on the system’s behalf.25 On the other hand, nothing resembling Gordon’s particular objections to the prevailing system of criminal justice is to be found among the few reported words of Davis, Crowther, and Chaffey, the most determined of the hold-outs, nor among the three others who briefly stood with them. One cannot, of course, rule out the possibility that simple silence in the face of the Recorder’s invocations of the religious authority said to underlie criminal justice—his warnings to each of them that they should not appear before God “with the aggravated offence of being your own executioner” (i.e., suicides)—might not, in itself, constitute a rejection of such a claim.2613
“Death Is More Welcome to Me Than This Pardon” 
A fourth possibility is that some or all of the convicts simply believed, as William Davis initially professed, that transportation to New South Wales truly was a fate worse than death. In its first report of the resistance of the male convicts, The Times noted approvingly that an initial impression among the public that Botany Bay was so “fertile [a] land that persons actually committed crimes in order to be transported thither” had given way to “such an antipathy … to that miserable place of bondage, that those under sentence of death have openly in Court declared they would be hanged sooner than consent to visit such a place.” Similarly, The Whitehall Evening-Post reported that “It seems a notion had been implanted in the minds of some of these unhappy men, that they were to be sold to slavery, or treated with a degree of hardship and oppression intolerable to humanity….”27 The king himself seems to have appreciated that a pardon on condition of transportation to New South Wales was only a relative mercy at best when he remarked on the ingratitude of Davis, Crowther, and Chaffey at the “sparing their lives after they have been forfeited by the laws of their country, [even] though on terms of transportation.”28 Such fears were understandable since little was yet known of the place with any certainty even to the government, let alone the public at large. Moreover, fear of transportation and its consequences—prolonged, if not permanent separation from loved ones in a remote and mysterious locale—seems to have been the most compelling factor among the women who had rejected pardon on condition of it the previous April.2914
      Far more characteristic of the eight men of September 1789, however, was a terse and simple defiance. All those who insisted at length upon their innocence of the original charge nevertheless duly submitted. By comparison, Davis simply asserted that “Death is more welcome to me than this pardon,” and Thomas Messenger that he “would rather die.” Their six fellow holdouts were equally men of few words. And even John Durham, who did not persist in his refusal, initially observed that “I think I ought to suffer as a man….”30 What underlying rationale can account for so simple and straightforward an insistence upon the severest letter of the law?15
      Perhaps long confinement in overcrowded and unhealthy conditions really did inspire some of them simply to grasp at the quickest conclusion to their misery. We need not accept at face value all contemporary rhetoric regarding the horrors of penal confinement in late eighteenth-century England to recognize that the experience of it, certainly for capital convicts in London, must often have been dreadful, and perhaps particularly so during the 1780s. The established practice had been for London’s capital respites to be held in Newgate Prison, potentially for as long as six months, until the imminent departure of one of the two annual convict voyages to America required that they be brought back to court to formally accept their conditional pardons.31 The disruption of this fixed routine by the outbreak of the Revolutionary War in April 1775 had initially been answered (for men, at any rate) by the substitution of confinement at hard labor on board prison hulks in the Thames from the summer of 1776 onward. By the early 1780s, however, the hulks regime had been completely discredited in the eyes of London and central government officials alike: partly because the lack of formal division among convicts of different characters (a circumstance, incidentally, that continued to prevail in Newgate as well) led to the hulks being perceived as “academies” in which potentially reformable criminals were instead trained to be hardened criminals, only to then be released on London’s doorstep; partly because of the horrific mortality that had prevailed on board them during the earliest years of the system; and partly because the initial “emergency” of relieving England’s jails of felons under sentence of transportation had been resolved no later than 1778 by the wide-scale substitution of military service as a condition of pardon in place of transportation.32 The hulks were only preserved, and then extended from the mid-1780s onward, in the new emergency posed by the definitive loss of the former American colonies and the prolonged delays in settling upon an alternative destination for Britain’s now rapidly burgeoning convict population.33 Until 1802, when the government finally assumed formal oversight of a hulks “system,” which until then it had persisted in viewing as a temporary expedient only, the sole review of conditions on board the vessels took the form of quarterly returns laid by the contractors before the Lord Chief Justice of King’s Bench—a far from rigorous mode of official oversight.16
      Life aboard the hulks, during the often long wait for ultimate dispatch overseas, was undoubtedly an awful experience. There can be little doubt that Joseph Morrell, originally sentenced to seven years transportation at the Old Bailey in May 1784 for stealing two copper kettles, and subsequently convicted there in December 1786 of the capital offense of “returning from transportation” after escaping from the hulks, spoke from the heart when, in accepting pardon on condition of transportation in September 1789, he specifically begged the court “not to send me on board the hulks” again.34 And Jane Tyler, one of the most obstinate of the female respites of April, though spared by her gender from the particular horror of imprisonment on board the hulks, invoked the miseries of the chronically overcrowded Newgate. A former servant, she had been convicted of stealing six guineas in the home of her master in January 1787. “I think I have suffered hard enough to be in gaol three years for what I have done,” she proclaimed, before finally submitting to the will of the court.3517
      Under such circumstances, the modern observer might think genuinely suicidal impulses to be a plausible interpretation of the behavior of at least some of the respites of 1789. It remains the case, however, that in the end none of them proved truly willing to embrace that last, desperate expedient rather than be transported.18
Ready to “Die Game”? 
A fifth possibility is that the behavior of the eight hold-outs fits into a scheme of defiance that is more usually associated with an earlier era of capital punishment in eighteenth-century London, the tradition of “dying game.” Ideally, condemned convicts were expected to make a suitable public display of contrition at the gallows and thereby to acknowledge the justice of the legal and social orders that had prescribed death for their offences.36 Sometimes, however, individual convicts chose to make their last moments on earth an occasion for defiance rather than submission. A few accounts of Tyburn executions describe condemned men who dressed splendidly, drank excessively, spoke defiantly at the gallows, and even had the temerity to leap to their deaths at a moment of their own choosing.37 For that matter, as Andrea McKenzie has recently shown, an ostensibly normative execution ritual could be undermined by a condemned person who succeeded in turning its religious rhetoric against itself—for instance, by quoting scriptures that subtly implied criticism of the prosecutor or the law, or by displaying a degree of good cheer that suggested confidence in one’s ultimate vindication by God.38 Few such gallows displays are to be found by the late eighteenth century, however.19
      Nor could there have been many opportunities for them to be attempted. In November 1783 the traditional procession of condemned convicts by cart to the gallows at Tyburn was abolished in favor of a more highly stylized and (it was hoped) closely controlled ritual conducted immediately outside Newgate prison. This was the culmination of half a century’s efforts by City officials to enhance their control over the execution ritual with a view to maximizing its theatrical and deterrent purposes.39 So vast and unruly had the crowds attending Tyburn executions become that, on no less than five occasions during the last thirteen years before their abolition, some of the scaffolding erected for viewers collapsed.40 Even on execution days that did not witness such dangerous indignities, the crowds could still be so extensive as to prevent many onlookers from obtaining a view of the hanging itself, thus eliminating for them the essential climax of the display. The American Loyalist Samuel Curwen, when attending one of the last Tyburn executions, complained of “the multitude surrounding the gallows,” which prevented him seeing “till after the execution … 6 victims of justice hanging in the air….”41 He was not the first observer to complain of this fundamental problem. “As the principal intention of the law of England in punishing offenders is to deter others from similar crimes,” observed one newspaper correspondent in 1780,
the manner in which the victims of justice are commonly executed, militates in a great measure against that design, at least in the metropolis. The gallows now in use is so low, that the heads of the sufferers are frequently not two feet above the populace; and if a few carriages get near the spot, the greater part of them are as much excluded from seeing the execution as if it had been performed in the prison. He therefore proposes that the gallows should be high enough for the bodies of the sufferers to be wholly above the heads of the spectators; in which case, the intention of the law would be fully answered, as every one might see the dreadful example.42And so it was that, from November 1783, Newgate executions took place on an elevated gallows, suitably draped in black, and with the crowd held at a distance by the presence of officers in a cordon about its foot.43 The condemned themselves, having no prior interaction with the crowd of a duration or scale as was afforded by the long procession to Tyburn, had far fewer opportunities either to prepare or to make displays of defiance in this new gallows ritual.
      On the other hand, any apparent decline in the practice of Old Bailey convicts “dying game” may be an illusion generated by our sources. The main source we possess for the details of late eighteenth-century London executions is the periodical press, and at least one contemporary observer, apparently suspecting them of complicity in official purposes, claimed that “Newspapers afterwards do their duty, by saying that most of the unhappy victims, that fell a sacrifice to the offended laws of their country, behaved with that decency which their awful situation required.”44 Certainly there no longer seems to have been any widely read standardized account of execution scenes that matched, in depth and detail, the Ordinary (or chaplain) of Newgate’s pamphlet Account of executions at Tyburn, a publication that seems to have almost completely vanished after the early 1760s.45 On the whole, however, and within the narrow confines of their usually limited descriptive language, the newspapers and magazines of late eighteenth-century London are probably a reliable source for basic information on the behavior of the condemned. And for the most part, it seems that the new execution ritual at Newgate did serve more effectively to isolate the condemned from a crowd that might potentially support disruptive behavior on the gallows. Indeed, it may be the case that the behavior of the respites in September 1789 was not only unusually defiant for its time, but also that trial proceedings themselves, widely attended by members of the public at large, and still (unlike executions) extensively reported in the press, may now have been a potentially more accommodating and effective venue for displays of convict defiance than the scene of execution itself.21
Damming the Works of Discretionary Justice 
A desire to appear willing to “die game,” however, need not be exclusive of a sixth and, as I will argue in the remainder of this article, most compelling explanation for the respites’ behavior. Surely it is not unreasonable to presume that the convicts possessed a strong sense of the potentially intractable difficulties that a massive show of defiance on their part would pose to authorities. They had all stood in the dock at the Sessions House on at least one previous occasion, and many of them had spent months, even years among fellow respites in Newgate, during which time they could have compared experiences with fellow prisoners—many of them, perhaps, repeat offenders well-versed in Old Bailey practices—as to the nature of legal proceedings and the peculiar position of the capital respite within them. It is suggestive that Edward Crowther’s father had once been Chamber Keeper in the Secretary of State’s office and might therefore have possessed some basic sense of the pardon system and its vicissitudes. Moreover, correspondence exists that shows that Crowther and his fellow respites came into the court believing that as many as seventy of those following them would stand with them in defiance.46 That being the case, they might very well—and rightfully—have believed that they were in a position both to embarrass the government and to bring the uncertainly grinding gears of London justice to a halt. To understand how this would have been the case, we must now turn our attention to the compelling considerations involved for officialdom.22
An Icy Quality of Judgment? 
The events of 19 September 1789 did not come as a surprise either to the officials of the Old Bailey or to the men of government to whom they were ultimately responsible. Since the 1690s especially, the legal officials of the nation’s capital had enjoyed a close, if occasionally politically fraught, working relationship with royal government. Metropolitan London comprised both the City of London proper and the county of Middlesex (including the City of Westminster, the seat of government and the most populous city of the realm). Although London and Middlesex maintained separate quarter sessions for the trial of lesser offenses and other local business, the two shared a single venue for capital felony trials at the Sessions House in the Old Bailey.47 Moreover, the Sheriffs of London and Middlesex alike shared joint jurisdiction for the metropolis entire, and one of their most significant duties was to oversee the execution of punishment—be it hanging, whipping, pillory, imprisonment, or transportation—upon all its convicted offenders. On two particular levels, the administration of criminal justice involved close and regular interaction between national and urban officials in London. First, since the 1690s, the fates of all capital convicts of the Old Bailey—hanging or conditional pardon—were determined by the king and senior members of the cabinet in consultation with the Old Bailey’s chief sentencing officer, the Recorder of London. Second, the king’s government maintained regular communications with the Sheriffs, not only concerning the frequent need to respite executions of sentence upon criminals, but also about the ongoing need to maintain the health and security of offenders confined in Newgate Prison.48 In light of the penal crisis of the 1780s, an increasingly common issue of mutual concern for the Sheriffs and government was the particular need to ensure that Newgate was regularly relieved of its excessive burden of convicts awaiting transportation.4923
      On the morning of Friday, 18 September 1789, one of the Sheriffs, William Curtis, called at the Home Office with news of a plan among the capital respites, of which he had been apprised by the Ordinary, to refuse “to accept the King’s Pardon proposed to be granted to them on condition of transportation.”50 Instances of such resistance among respites were extremely rare and seldom the source of any significant problems. What made the events of September 1789 unique was the anticipated scale of the defiance: this time, no less than seventy respites were reported to be contemplating refusal. After consulting with the Home Secretary (William Grenville, who had taken over from Sydney in June) and his Under Secretary, Sheriff Curtis returned to Newgate that evening and had both the Keeper of Newgate and the Ordinary “intimate to the capital respites that the Judge had been apprised of their intention to refuse the King’s Mercy, and that … such as did not accept, on the conditions to be proposed, would certainly be ordered for immediate execution.”51 The decision to bring into court only fourteen of them, and at the end of a full day’s trials, when the rest of the respites could not possibly be got through, may also have been part of a strategy to erode any common front among so large a number of rebels. Such preemptive tactics presumably helped to restrict the initial display of defiance to only eight men, and the subsequent work of the Ordinary in the condemned cells finally brought that number down to only the three hold-outs.52 However, as Grenville subsequently reported to the king, these three, Davis, Crowther, and Chaffey, seemed resolved in their “profligate obstinacy,” and the Recorder now advised that “some example [is] necessary to prevent such contempt of the King’s most gracious clemency in future.”53 Grenville considered the situation and obtained the king’s permission to order the execution of Chaffey on 21 September.54 Before that could take place, however, all three convicts had changed their minds and the crisis had come to an end. Chaffey, Davis, and Crowther formally accepted their conditional pardons at the end of the next sessions a month later.5524
      In considering Grenville’s management of the crisis, two interpretations are possible. A straightforward reading might emphasize dismissive cruelty and a callous disregard for human suffering. Even Grenville’s biographer is struck by “the icy quality of his judgements” in the matter.56 But closer consideration suggests otherwise. Indeed, on the face of it, Grenville’s actions do not seem to make sense. The preeminent legal authority of the age, Sir William Blackstone, had clearly stated that a conditional pardon was invalid if the condition on which it was offered was not accepted by the recipient: “the king may extend his mercy upon what terms he pleases; and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend….”57 Nor is it immediately apparent why any capital convict ought to be forced to accept a conditional pardon against his or her wishes, much less why the refusal of three to do so should have prompted so swift and anxious a response from the government. Although there is certainly something sinister about the cool calculations Grenville made in seeking to execute one and thereby to terrify others into submission, why, if all three convicts had rejected pardon and had a legal right to do so, was he so determined that two of them should still have a chance to live?25
      To answer both these questions requires a full comprehension of the nature of the problem that such a display of resistance posed, and to achieve this we must view the deployment of capital pardon in its larger functional and ideological contexts. In particular, we must consider the history of capital punishment and transportation in London during the decade preceding the events of September 1789. Such consideration reveals that there were potentially serious difficulties, not only in imposing sentence of deaths upon large numbers of capital convicts, but more particularly in doing so with reference to the crucial question of how both the criminal law and the larger system of authority that it upheld were viewed, not only by the convicts themselves but by the public at large.26
Hanged like Dogs 
The most recent account of capital punishment in England during this period, V. A. C. Gatrell’s The Hanging Tree (1994), would have us believe that officials had no qualms whatsoever about hanging convicts in large numbers. In support of Gatrell’s perspective, we may note that from September 1782 the government was determined that no persons without exception convicted at the Old Bailey of robberies or burglaries involving a degree of cruelty should be pardoned.58 To what extent was this policy actually carried into effect? We can suggest the answer to that by considering the number of London executions from 1770 to 1800 (see Figure 1).59 The first five years of the 1770s saw an average of about thirty-seven executions per year in London, followed by a slight decline to about thirty-four per year for 1775–79. After that, the picture changes dramatically. The yearly average of executions jumps to nearly forty-seven for 1780–84 (an increase of more than one-third), then surges further upwards to nearly eighty for the mid-1780s (a further increase of 70 percent), followed by a dramatic retreat—to well below even the 1770 start point—to about twenty-six for the remainder of the decade. To consider this from the perspective of contemporary execution-goers (and assuming eight execution days per year), a typical execution during the 1770s might have involved only four or five convicts. In the early 1780s, that figure rose to five or six. And the yearly average for 1785 through 1787 could reasonably be expected to have resulted in ten people being hanged at once! Both the massive increase from 1780, as well as the sharp plunge after 1787 to a probable figure of three or four, must have been striking to contemporary observers. When a letter addressed to Home Secretary Sydney in September 1786 opened with the observation that “nothing can be more unjust than any outcry against you for not hanging people enough!” the brutal accuracy of the remark would have been only too apparent to anyone who had been living in the nation’s capital during the previous fifteen years.6027
 Figure 1. Number of Old Bailey Convicts hanged, 1770–1800. Sources: House of Commons Sessional Papers, 1819 (585) VIII, pp. 155–63.  
      This dramatic increase in the number of executions, however, which had been intended to instill a renewed awe both for the law and the authority that it upheld instead, provoked a chorus of critical voices in the contemporary press. During the 1780s The Gentleman’s Magazine often commented disapprovingly on the practice of large-scale executions in the metropolis. Well before the highest execution levels of that decade were achieved, it observed that the nine convicts hanged on 22 November 1780 were “more perhaps than are executed in the Seven United Provinces of Holland in a whole year,” an allusion to the more widespread use of imprisonment in place of capital punishment in the Netherlands by this time.6128
      This was only the latest resurgence of respectable public skepticism and distaste for England’s still burgeoning capital code. As early as the Interregnum, a number of Puritan commentators had decried the imposition of so seemingly disproportionate a punishment as death for any species of theft whatsoever, and John Beattie and Randall McGowen have recently shown that doubts regarding both the number of capital crimes on the books and the extent to which their full letter could be enforced were an increasingly common feature of both printed commentary and official practice during the Restoration and Augustan eras.62 The post-war crime wave of the early- to mid-1750s provoked renewed discussion regarding the efficacy of England’s penal options, thus further preparing the ground for the great burst of discussion regarding law reform that followed on the English publication of Cesare Beccaria’s Of Crimes and Punishments (1764) in 1767, a work whose impact was reiterated in the fourth volume of Blackstone Commentaries on the Laws of England (1769) and in William Eden’s widely read Principles of Penal Law (1771).63 Yet the serious questions posed by these works, and the long traditions of doubts on which they drew, seem as yet to have had little serious impact on government officials in their administration of the capital code. If discussion of criminal law reform surged during those eras when levels of convicted crime were sharply on the rise in London—the 1650s, the 1690s, the 1750s, the late 1760s and early 1770s—so too did execution levels among the Old Bailey condemned.29
      It is the degree to which government in particular seems at last to have perceived a need, and finally to have put into practice a means, to effectively and lastingly restrain the deployment of the gallows that distinguishes the 1780s as an important decade in the long-term history of English criminal law reform. This distinction is overlooked perhaps because, despite a prevailing conviction that we “know” the history of criminal law and its enforcement in London far better than we do other regions of Hanoverian England, the most systematic scholarly work on this period focuses on the provinces.64 In fact, detailed study of the major London periodicals of the 1780s reveals perhaps one particularly compelling perception more often than all others: that mass executions clearly were not having their intended deterrent effect, a point that The Gentleman’s Magazine emphasized following the execution of eleven convicts in October 1783.65 By this time the Magazine was also suggesting that there might actually be a better way of addressing the problem than simply hanging capital offenders en masse. It lamented the lack of policing regulations that might prevent the occurrence in the first instance of the crimes that brought so many offenders to the gallows and cited (sometimes only implicitly) the superior example of such practices on the continent. In April 1785, it decried the “most lamentable spectacle” outside Newgate of nineteen people “hanged up like dogs, for crimes against the laws of their country, which no punishment will prevent…. It would be happy for this country, were we as ready to adopt good regulations from abroad, as bad fashions.”66 Similar criticisms, as well as the same suggested alternative, appeared in the pages of The London Magazine and The Times, and they were common themes in The Monthly Review‘s notices of new publications well into the 1790s.6730
      A particularly sharp sense of both the immediate horror, as well as the ultimate limitation, of mass execution displays is also conveyed in the diary of one of the eighteenth century’s pre-eminent men-of-letters, James Boswell. Although he was an execution-goer of long experience, Boswell found the execution of fifteen men outside Newgate in June 1784 to be a “shocking sight,” as also that of ten more a year afterward, while the hanging of another eight in August 1785 left him “quite unnerved” in a manner that “would not dissipate” for hours afterwards.68 On the face of it, this is precisely the sort of reaction that one presumes had been intended by the policy of September 1782, but a closer examination of Boswell’s responses in fact suggests the ultimate futility of mass executions as an exercise in deterrence. Although he sought to enter imaginatively into the sufferings of the hanged, that exercise always involved—perhaps inherently and necessarily—only one convict in particular. In June 1785 the fifteen put to death made “a shocking sight,” but it was the sight of only one of them, who “struggled long” after the drop fell, that seems to have inspired him to project himself into “the feelings of a desperate highwayman.” Three months later he was “shocked” and “unnerved” by the sight of eight others hanged, but again it was the sight of only one of them in particular, “cut down, carried into Newgate, and stretched dead upon a table[,] … his face neither black nor distorted,” which inspired his musings on the “quick transition from life to death….”69 Boswell’s reactions suggest that there is something about the imaginative engagement of the onlooker with the condemned that can operate, on its most profound and effective level, only on a one-to-one basis. The deterrent effect of execution could not be enhanced and multiplied merely by increasing the number put to death at any given time. As appalling as the repeated sight of mass executions must surely have been, the frequent repetition of such displays during the 1780s—further reinforced in the minds of many by the established critiques of the capital code of the late 1760s and early 1770s—ultimately did not inspire awe and respect for the criminal law in the minds of many people, but rather mere stupefaction at best and moral outrage at worst.31
      Pitt’s government was neither deaf to the reactions in the popular press nor ignorant of and indifferent to the possible alternatives that informed many of them. In introducing the government’s Metropolitan Police bill of June 1785, which sought to institute a paid magistracy under government direction for London, Middlesex, and Southwark, the Solicitor General noted the superior value of a preventative approach to the problem of crime in light of the transparent failure of large-scale executions to serve as a deterrent:
He drew the attention of the House to the crowds that every two or three months fell a sacrifice to the justice of their country, with whose weight, as he said, the gallows groaned: and yet the example was found ineffectual, for the evil [of robbery and villainy] was increasing…. [E]xtreme severity, instead of operating as a prevention to crimes, rather tended to promote them, by adding desperation to villany.70No later than the early summer of 1785 then, the government was entertaining serious doubts about the practical value of a policy of enhanced and unswerving severity. Despite almost three years of enforcing such a strategy, the levels of capital conviction at the Old Bailey had remained unprecedentedly high.
      This did not inspire Pitt to reform the criminal law, however, a task that in 1787 he specifically rejected as being too complex and potentially controversial.71 But he and his ministers were now mindful of the need to exercise caution: to impose the law’s strictest letter with as much restraint as would be necessary for the hanging spectacle to communicate its message without overwhelming its audience’s moral senses and thereby defeating the ritual’s deterrent purpose. This concern appears most urgently and explicitly after the accumulation of four sessions during the king’s first attack of porphyria during the winter of 1788–89. By March 1789 forty-nine convicts stood convicted of capital offenses, but only ten of them were finally executed, a considerably lower proportion of executions to capital convicts than the 27 percent that prevailed for the year overall.72 Pitt’s government felt that to execute any more than that posed too great a risk of alienating public support for the criminal law. In recommending a larger measure of mercy than might otherwise have been expected, Sydney conveyed to the king the government’s opinion that “the great length of confinement of several [of] the unhappy persons, the number of them, and the interruption which such a spectacle gives to the general joy and happiness of the present time, has made a pretty general impression upon the minds of His Majesty’s subjects.”7333
      It was not that Pitt’s ministers wished to be humane. Pitt himself was adamant that the gesture should be understood as a special exception on account of the public celebrations of the king’s recovery, an “Occasion which can give no Foundation of Hopes to those who might offend in the future and will … in no degree whatsoever interfere with the great End of Punishment.” Rather, the government had become sensitive to the fact that execution in excessive numbers could be self-defeating of “the great End of Punishment”: the deterrence of future offenders and the awe for authority that it should instill in the public mind. On this occasion in particular, Pitt and his cabinet believed that, “in the Public Impression,” a show of mercy and lenience “will certainly be an Act very acceptable and becoming….”74 Although probably not moved by moral concerns, they were aware of—and responsive to— increasingly apparent practical limitations on the execution ritual. And indeed, though Pitt had privately suggested to his soon-to-retire Home Secretary Lord Sydney that the adjustment of March 1789 was to be only a temporary exception, the subsequent practice of the Old Bailey gallows strongly suggests that the lesson learned by government during the 1780s proved in fact to be a lasting one.7534
      Small wonder then that, only six months after navigating the difficulties posed by the king’s illness, at the end of probably the worst decade for executions in the history of London’s gallows, the professed resolution of three convicts to die rather than be pardoned was a matter of grave concern for government. Indeed, once we remind ourselves that Grenville had actually been told that he could expect as many as seventy convicts to make this threat, we can easily appreciate just why the matter was so profoundly alarming. Some alternative means of punishing capital offenders and thereby avoiding the use of the gallows beyond acceptable limits had to be found. By September 1789, Pitt and his ministers believed that, following an interruption of several years, they had at last regained full access to just such an alternative punishment.35
Violators of the Laws Rendered Useful 
The use of convict transportation, both to provide cheap labor for Britain’s nascent American colonies, as well as an alternative punishment with which to restrain excessive use of the gallows, dates back to the early seventeenth century.76 The particular need for a reliable and credibly severe secondary punishment was felt with especial urgency in late-Stuart London, culminating with the passage in 1718 and 1720 of two Acts (4 Geo. I, c. 11; 6 Geo. I, c. 23) that systematized the practice of convict transportation. To some extent, this measure served larger imperial purposes by making available to the labor-intensive agrarian economies of colonial Virginia and Maryland a relatively inexpensive and sustainable alternative to slave labor. The most important effect of the new system in England, however, was to transform penal practices at home by making available the first widely accepted and routinely applied punishment short of death.77 This first system of transportation was brought to a de facto conclusion by the outbreak of the American Revolutionary War in spring 1775, but the evidence of the ensuing decade suggests that most British officials continued to believe that transportation overseas was the only secondary punishment acceptable for the most serious classes of capital offenders.36
      London’s convicts dominated the lists of those actually transported from Britain during the 1780s. They constituted between one-half and two-thirds of the approximately three hundred convicts embarked on four small-scale voyages, the first to Africa and the remaining three to the Americas, between 1782 and 1785.78 And they comprised 39 percent of all convicts embarked from Britain to New South Wales between 1787 and 1809; indeed, until 1800, the figures were usually closer to 50 percent and more for each embarkation.79 We need only compare such figures to the 13 percent that obtained during the last eight years of transportation to America—a figure that is much more in line with the metropolis’s 10–11 percent share of the national population throughout the eighteenth century—to recognize that, from the 1780s onward, London was probably generating and certainly removing transports on a scale vastly out of proportion to any other region of the country.80 The large-scale removal of those convicts did not commence until the sailing of the First Fleet to Botany Bay in May 1787. It can be no wonder then that, a year before that date and almost a year after the last small-scale dispatch of transports to America, officials of the City of London petitioned the king for “a speedy and due execution of the law, both as to capital punishment and transportation,” the long absence of the latter being in their view “alone sufficient” to account for “the over-crowded state of the gaols and the increase of crime and offenders,” particularly burglaries.81 To their minds, no other non-capital punishment was sufficiently severe and salutary for offenders of the worst order.37
      We can now return to the incident of September 1789 with a more informed perspective. The need for transportation as a punishment second only to death was by that time more urgent than ever, given the unprecedented numbers of capital convicts in London during the 1780s. It was not until early 1789 that the government received word that the initial settlement in New South Wales had succeeded.82 Now all considerations in this system, so newly restored, were being called into question by the actions of three obstinate respites. In deciding how to manage the situation, far more was at work than simply the casual brutality of a Home Secretary. Grenville’s dilemma was that he had to ensure that all capital respites were punished in a manner severe enough to maintain the public credibility of the criminal law, but not so severe as to call its moral legitimacy into question. A concern for public scrutiny of the workings of criminal justice ultimately circumscribed his calculations. This is confirmed by his particular attention to the theatrics of judicial administration immediately after the three convicts ended their resistance. Rather than simply let the matter end then and there, they were issued sequential respites “from time to time” so “that their submission may be made publickly in court at the next session of the Old Bailey….”83 Grenville was wise to ensure such a display. An observation published in The Times only two days after it took place neatly encapsulated the larger considerations of public policy that were brought into focus by the display of convict resistance:
The aversion which several convicts have shown to a trip to Port Jackson, the alternative held out to them after their being condemned to death, shews the benefit which will result to this country from the wise plan adopted by our Minister [i.e., Pitt the Younger] in forming a settlement there. And yet for this plan he was once loaded with reproaches!—Instead of incessant executions, the example of which has served to harden, and not to terrify and deter, the future violators of the laws of the country will be rendered useful to it….84This was the course that had to be steered: to avoid an ineffectual display of “incessant executions” while sustaining that beneficial sense of “aversion” that New South Wales clearly inspired. The care that Grenville displayed in managing the crisis of September 1789 was important, not because of any consideration for the suffering to which the convicts themselves had already been subjected or were yet to undergo, but rather because their disposition—and their willingness to accept it—were matters for public scrutiny and approbation if the criminal law was to maintain its authority.85 The concern of officials in government and in London alike to maintain a suitably public display of the respites’ submission to the mercy of the king was part of their general preoccupation with enhancing the many dimensions of public justice in London during the 1770s and 1780s, of which the abolition of the Tyburn procession in 1783 was only the most dramatic example.86
      If the respites viewed removal halfway around the world as a fearsome prospect, that was all to the good. The punishment would mean little if they did not. For transportation was not simply a relative mercy, essential in avoiding the execution of more offenders at a given time than might be desirable. It also continued to be the most serious sentence of the first instance for many non-capital offenders. Twelve people were sentenced to death at the September 1789 sessions of the Old Bailey, but no less than fifty-four others received sentences of transportation.87 The government could scarcely allow any capital respites—even one—to publicly suggest, by a determined preference to be hanged, that transportation as it was now carried out was a fate worse than death. It was not simply that such behavior, as the Recorder put it, constituted a public display of “contempt of the King’s most gracious clemency,” offensive though such displays were in a political order that still set a high symbolic premium on royal prerogatives.88 More important, such displays subverted the established hierarchy of penal practices. In other words, Grenville’s determination to ensure that the greatest possible number of the respites accepted their pardons on the condition assigned stemmed from a concern for authority. He wanted to maintain some rough measure of balance in the deployment of punishments within a judicial system in which the final measure of punishment ultimately applied to an offender was shaped by the discretionary actions of prosecutors, juries, judges, and royal officials rather than the strict letter of the law.8939
Obliged to Do It?—Discretion versus Certainty 
At the same time, Grenville’s determination to force the recalcitrant respites to accept pardon on condition of transportation reveals a growing tendency within that system—particularly among the latter two groups of actors, and critically reinforced by the pressure of immense new numbers of capital convictions—toward the more regular and consistent imposition of secondary punishments in place of death.90 Executing a large proportion of capital convicts might still be feasible when that proportion translated into a relatively small absolute number on any single occasion, as appears to have been usually the case during most of the eighteenth century.91 But by the end of that century, this was no longer the case. Certain recourse to a widely acceptable secondary punishment was, if anything, more essential than ever it had been before the 1780s, and London officials were more determined than ever that the best such punishment for worst-case offenders was transportation. When Chaffey, Davis, and Crowther were brought back into the courtroom at the end of the October sessions, the latter stated that “he accepted this pardon, because he understood that he was obliged to do it.”92 Similarly, three months earlier, Martha Cutler had submitted with the simple observation, “Why, I must.”93 But however much the Home Secretary and most other officials must fervently have wished it were so, their actions suggest that they believed it was not. And at least four more capital respites in London would, on an individual basis, attempt to refuse pardon on condition of transportation between December 1790 and February 1792.9440
      The legal questions involved were not easily or quickly resolved by contemporary authorities, and closer examination of their confusion suggests the potential difficulties to be encountered in attempting to ensure a certain and proportionate measure of punishment within the workings of a discretionary system. Although the swift resolution of the crisis of September 1789 saved the government from exposure, serious legal reservations had in fact been raised at that time by one of the eldest practicing judges of the realm. Henry Gould, a judge of nearly thirty years’ standing, expressed serious doubts as to “the legality of the carrying into execution the sentence of death passed upon” Thomas Chaffey after “the notification which has been made to him of [the king’s] gracious offer of conditional pardon,” and the Lord Chancellor appears to have concurred, observing that “I do not think the King able in law to recall this act of mercy, more than he could a pardon” once issued.”95 Nor was this the first time such a question had been raised. Five years earlier, in response to a local magistrate’s concern that the granting of a reprieve at assizes might similarly be taken by a capital convict to be a definitive—and potentially irrevocable—indication of an intention to grant pardon, Pitt’s attorney general conceded that, in practice, “the instances of executions after a reprieve during pleasure are hardly to be found,” but nevertheless insisted that such an execution could proceed if “the subsequent conduct of the criminal had made it proper” to do so.96 This was surely the interpretation that Grenville and most others in 1789 placed upon the decision, ultimately not acted upon, to “revoke” the pardon of Chaffey (whom he deemed to be “the least of the three, an object of mercy”), no matter that the original decision to grant him pardon had been made six months earlier.97 For decades, it clearly had been understood by officials of Whitehall and London alike that such respites would eventually be converted to pardons on condition of transportation, save in those very few instances where the Report made a specific recommendation of some other condition.41
      The question was not definitively resolved (for London) until June 1797, when the high court judges ruled that a passage in the Transportation Act of 1784 (24 Geo. III, sess. 2, c. 56, s. 1) made the acceptance of “conditional” pardons by the capital respites of the Old Bailey obligatory, ending at last the formality of their being returned to the court at a later date to accept them.98 Thus it was now definitively established that the binding elements of pardon procedure extended in only one direction: the intention to pardon must be taken by the convict as obliging him or her to submit to the prescribed condition of that pardon; but the government remained free to withdraw that intention should subsequent circumstances make such a withdrawal desirable for official purposes. Only two years later, in April 1799, the law officers would further clarify this proposition, this time in light of the circuit pardon practice that prevailed outside of London. In these instances, the circuit judge’s reprieve of certain capital offenders immediately after the end of each assizes had long been understood to be an effective indication that the convicts in question would be pardoned—again, almost invariably on condition of transportation. The same law officers who empowered judges at the Old Bailey to dispense with the potentially dangerous ceremony of requiring a respite’s formal submission to pardon, in this case still insisted—against the logic of long-established practice—that
upon such general reprieve until His Majesty’s pleasure should be known, it has been usual, upon the recommendation of the Judges to extend His Majesty’s Mercy to the Convict; but although His Majesty has generally been graciously pleased to comply with such recommendation, yet we conceive that it is impossible that the act of the Judge should be considered as final, and on the contrary that it can be deemed only as a proceeding necessarily accompanying the recommendation of Mercy, which can only be an application to His Majesty’s discretion; …99The law officers’ principal authority for this claim was the preamble to the Transportation Act of 1767 (8 Geo. III, c. 15), even though a reading of that preamble—which states that the king “generally, on such recommendation, is graciously pleased to extend [such pardon] to [the convicts] on condition of transportation”—certainly implied an all-but-certain transition from reprieve to transportation, and such an understanding had been observed in circuit practice since 1728.100 And only a quarter-century after this ruling of 1799, that practice—now including pardons on condition of imprisonment as well as transportation—was formally recognized at law when a new Act (4 Geo. IV, c. 48) formally empowered the circuit judges altogether to omit the now pointless formality of sentencing to death, at the end of each assizes, those capital offenders whom they intended to reprieve.101
      Here then is one of the most striking mysteries in all these events: the section of the 1784 Act that provided for this contingency (24 Geo. III, sess. 2, c. 56, s. 1) in fact stated quite explicitly that an indication from the Secretary of State that mercy was to be shown on condition of transportation should be regarded as an order to carry out the sentence of transportation, and a similar understanding seems to have been intended by the earlier Transportation Act of 1767. So why did neither the Home Secretary, nor the Lord Chancellor, nor any number of the judges of the realm seem to remember this provision and its significance within five years of its creation, an omission that is only the more striking given the suggestion of the king himself that the question be referred to the judges so “that the mode of acting on any similar occasion may be clearly ascertained”?10243
      In one sense, of course, the ruling of 1797 (or, perhaps we should say, the Act of 1784) imposed a new restriction on the rights of the convict. Alan Atkinson has argued that there was a growing tendency among English authorities to eliminate the discretionary and to enhance the compulsory character of transportation during the eighteenth century, and the events of September 1789 must certainly constitute a crisis point in that process.103 However, a more forward-looking (if not exactly “optimistic”) interpretation of this process is also possible, one that perhaps best explains why no one in 1789 appears actually to have remembered or fully to have understood the intentions of the Transportation Acts of 1767 and 1784. Official confusion over the issue was indicative of a transitional phase in thinking about the aims and means of imposing degrees of punishment. Bound, on the one hand, by functional limits on the deployment of the gallows ritual and, on the other, by the need for punishments of the utmost possible severity for the most serious offenses against property, it was impossible that convicts pardoned on condition of transportation could be allowed to insist on their being executed instead. In practical terms, this is almost indistinguishable from a determination to ensure the certain imposition of an appropriately proportioned punishment.44
      In 1789, however, the reconciliation of the ideals of certainty and proportion with the strictest legal form, although an attractive notion, seemed also an impossible ambition. William Blackstone had suggested as much twenty years earlier, and Pitt’s rejection of criminal law reform in 1787 stemmed from similar doubts.104 The essentially alien quality of the idea must surely be the reason why no one, not even the judges of the realm, seemed able to remember the full implications of the relevant clause of the Transportation Acts of 1767 and 1784. Discretionary instruments still seemed to be the best means of securing the object in mind, even as the shape of that object was increasingly well understood. The ultimate significance of how the government managed the problem of convict resistance in September 1789 is that it reveals a fumbling step toward penal ideals and practices that, by the early Victorian era, would come to seem second nature.105 Four decades before the letter of the law began to change toward the more certain and specific imposition of particular classes of punishment for particular offenses, the modes of its discretionary application were already straining in that direction.45
Conclusion—New Transcripts: The Gallows and Pardon 
Here then is surely to be found the bases of the calculations made by defiant respites of September 1789. It must have been a bitter disappointment to Crowther, Chaffey, and Davis that, in the event, so few of their comrades finally stayed at their side. The determined defiance of seventy respites would have posed an almost insurmountable ethical block to the orderly administration of criminal justice in London, and it was undoubtedly for this reason that Old Bailey officials were careful to bring only the first ten respites into court on 19 September 1789. Would the government have been ready to boost the total number of executions for the year from twenty-six to ninety-six? And that in a year when the total number of capital convictions was only ninety-seven? The question is perhaps moot, for there was no precedent in conventional criminal law for putting seventy people to death at once. Indeed, the addition to the execution roster simply of the eight men who initially held out would nearly have doubled the numbers sentenced to death at the September sessions (from twelve to twenty) and was nearly twice as many as the number (five) who were actually hanged.106 In fact, as we have already seen, the government was unwilling to risk the execution of just the three holdouts. There can be no sensible explanation for this other than the experience of recent years, a time in which officials had initially sought to maximize the number of offenders put to death for the most serious crimes against property. The practical, outermost numerical limits of the execution ritual had been probed, discovered, and retreated from, and there could be no going back. Well-aware of the system’s need to limit the numbers executed, and animated perhaps also by an older but not yet defunct tradition of defiance in the shadow of the gallows, the convicts who briefly rejected transportation in 1789 posed a major problem for both government in general and for the smooth and politically acceptable administration of criminal justice in particular.46
      This article is intended as a complement to Lynn MacKay’s innovative discussion of the unusual incidences of resistance to pardon among the capital convicts of the Old Bailey in 1789. I agree with her that the convicts were engaged in a self-conscious act of resistance to the workings of criminal justice. Where I differ is in thinking that these acts were probably more unique and more temporally confined in their significance than MacKay’s emphasis on general plebeian resistance to the law of Hanoverian England might imply. The Old Bailey respites acted where and when they did because they were particularly conscious of recent and continuing innovations in the administration of the law, innovations that had the cumulative effect of silencing such voices as once they had been able to exercise in its operations. The abolition of the peine forte et dure in 1772 (by 12 Geo. III, c. 20)—pressing with weights those who refused to plead until either they pled “guilty” or “not guilty,” or were crushed to death—has conventionally been regarded as the long overdue removal of a barbarous survival. In fact, as has recently been demonstrated, the occasional professed willingness of a criminal to undergo the test afforded a few brave souls the opportunity to express defiance of the law until abolition of the practice removed altogether that uncomfortable possibility.10747
      Not all efforts on the part of judges and government at lending greater potency and supremacy to the “official transcript” of the law succeeded so well. The abolition of Tyburn in 1783 had been intended to render the body of the condemned a more silent and passive object of the criminal law’s deterrent purpose. In this it sometimes signally failed in the years that followed. Some of these “failures” must deliberately have been allowed by presiding officials where it was perceived that some participation on the part of the condemned might better serve the purposes of authority than would their enforced silence. Thus, in August 1809, William Jones was allowed to address “the populace in a speech of about ten minutes, in which he acknowledged the justice of his sentence, but declared that when he committed the offence for which he suffered, he was ignorant of being a guilty instrument.”108 Altogether more problematic was Peter Chapman who, on “being brought out to mount the scaffold” with three other men in February 1800, “leaped up the steps that led to it, and then, instead of attending to the Clergyman, nodded to the females that appeared in the windows opposite, laughed at them sometimes immoderately, kicked off his shoes, one to the right and the other to the left, among the crowd who came to witness his disgraceful end; and, in short, did every thing he thought could prove his contempt of death.”109 And of course, no matter how effectively officials may sometimes have been able to control the apparent disposition of the condemned, there was little or nothing they could do to control that of the crowd, which sometimes remained as raucous, or more so, than ever it may have been at Tyburn.11048
      Another aspect, however, of officialdom’s desire to render the law more regular and forceful did succeed: the ultimate abolition of the theatrics—and hence, also, any potential counter-theatrics—of the awarding of pardon in open court.111 Convicts could still make their voices heard in the act of petitioning itself, and as Gatrell has reminded us, those voices were by no means always bound by the formal politesse of that document’s form.112 But the overt official gesture of the last-minute reprieve at the gallows ended with the Tyburn procession.113 And in another aspect of the formal drama of justice and mercy—of authority and deference—there was a definitive change. From 1797 onward, capital respites were no longer afforded the public opportunity to voice any dismay they might feel at the condition on which mercy was shown them.114 Instead of filing into the court room to personally receive the relative mercy of their monarch’s servants, they were now informed of their fates out of the sight and hearing of the public at large. In this aspect at least, the near silence and anonymity that surrounds the workings of the modern bureaucratic state had arrived, decades before the recession of the capital code would give it wider formal embodiment in law.49

Simon Devereaux teaches in the department of history at the University of Victoria, Canada <[email protected]>. He would like to thank Donna Andrew, John Beattie, Paul Crook, Raymond Evans, Jonathan Fulcher, John Langbein, Randall McGowen, Andrea McKenzie, Allyson May, Dana Rabin, Greg T. Smith, Martin Wiener, and three anonymous readers for their comments on earlier drafts of this article. He also thanks the participants in various research seminars—the Law and Society Group, and the Eighteenth Century Circle at the University of British Columbia; the Legal History Discussion Group at the University of Toronto; and the History Staff Student Seminar at the University of Queensland, Australia—who heard and commented helpfully on this article’s earlier incarnations.

Notes1. 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 <> 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 <>. 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 (t17870523–17); 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; Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (New York: Macmillan, 1978), 91–92; Peter Jupp, Lord Grenville, 1759–1834 (Oxford: Clarendon Press, 1985), 90–91.8. Lynn MacKay, “Refusing the Royal Pardon: London Capital Convicts and the Reactions of the Courts and Press, 1789,” London Journal 28.2 (2003): 21–40.9. James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven and London: Yale University Press, 1990).10. 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. 2–16.11. 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; 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], 39–49, 75–105).12. MacKay, “Refusing the Royal Pardon,” 37.13. The National Archives (hereafter NA; formerly the Public Record Office), Home Office Papers (HO) 13/11, p. 225.14. The Gentleman’s Magazine 21 (1751): 425; 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 (t17510523–25), 199 (s17510523–1). For Burt see OBSP 1785–86, pp. 868–69 (t17860719–31); OBSP 1786–87, pp. 328–29 (o17870110–3), 462–63 (o17870221–2).15. 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); 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); and the seven others noted in MacKay, “Refusing the Royal Pardon,” 23, 37–38, n. 16.16. 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; 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.17. 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), and Jennifer Mori, Britain in the Age of the French Revolution, 1785–1820 (Harlow: Longman Pearson, 2000).18. Ralph A. Manogue, “The Plight of James Ridgway, London Bookseller and Publishers, and the Newgate Radicals, 1792–1797,” The Wordsworth Circle 27 (1996): 158–66; Iain McCalman, “Newgate in Revolution: Radical Enthusiasm and Romantic Counterculture,” Eighteenth-Century Life, n.s. 22 (1998): 95–110; 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).19. Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Allen Lane/The Penguin Press, 1991), esp. part iv.20. John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford: Oxford University Press, 2000).21. John W. Derry, The Regency Crisis and the Whigs, 1788–9 (Cambridge: Cambridge University Press, 1963); John Ehrman, The Younger Pitt, vol. 1, The Years of Acclaim (London: Constable, 1969), chap. 20.22. OBSP 1788–89 (June), p. 636 (o17890603–1).23. 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 Misdemeanors from the Earliest Period to the Present Time (34 vols., 1809–26), 2:175–236. 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), 60–111.24. Howell, ed., Cobbett’s State Trials, 2:184.25. OBSP 1788–89 (Sept), p. 890 (o17890909–7).26. OBSP 1788–89 (Sept), pp. 890 (quote) (o17890909–8), (o17890909–9), 891 (o17890909–12).27. The Times of London, 21 Sept. 1789 (emphases in original); The Whitehall Evening-Post, 19–22 Sept. 1789. 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).28. 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).29. OBSP 1789–89 (April), pp. 483–85 (o17890422–1); The Times, 1 May 1789. 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).30. OBSP 1788–89 (Sept), pp. 888 (o17890909–2), 890–91 (o17890909–9).31. 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.32. Simon Devereaux, “The Making of the Penitentiary Act, 1775–1779,” Historical Journal 42 (1999): 405–33 (esp. 423–24, 428–29); this discussion is expanded upon in Devereaux, Convicts and the State: Criminal Justice and the English Government, 1750–1810 (forthcoming), chap. 4. See also William Branch-Johnson, The English Prison Hulks, rev. ed. (Chichester: Phillimore, 1970); Wilfrid Oldham, Britain’s Convicts to the Colonies (Sydney: Library of Australian History, 1990), chap. 3; and Charles Campbell, The Intolerable Hulks: British Shipboard Confinement, 1776–1857, 3rd ed. (Tucson: Fenestra Books, 2001), esp. chap. 3. 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), 9–41.33. 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; and Martin, “The Founding of New South Wales,” in The Origins of Australia’s Capital Cities, ed. Pamela Statham (Cambridge: Cambridge University Press, 1989), 37–51.34. OBSP 1783–84 (May), pp. 790–91 (t17840526–80); OBSP 1786–87 (Dec), pp. 65–66 (t17861213–31); OBSP 1788–89 (Sept), p. 890 (quote) (o17890909–6).35. OBSP 1786–87 (May), p. 499 (t17870418–33); OBSP 1788–89, pp. 483 (o17890422–1), 634 (o17890603–1).36. J. A. Sharpe, “‘Last Dying Speeches’: Religion, Ideology and Public Execution in Seventeenth-Century England,” Past & Present 107 (May 1985): 144–67.37. 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; Andrea Katherine McKenzie, “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.38. Andrea McKenzie, “Martyrs in Low Life? Dying ‘Game’ in Augustan England,” Journal of British Studies 42 (2003): 167–205.39. Steven Wilf, “Imagining Justice: bbbbsthetics and Public Executions in Late Eighteenth-Century England,” Yale Journal of Law and the Humanities 5 (1993–94): 51–78; Gatrell, Hanging Tree, 601–4; Simon Devereaux, “Recasting the Theatre of Execution in London: The End of Tyburn,” Past & Present (forthcoming).40. Lloyd’s Evening Post, 3–5 Dec 1770; The Morning Chronicle, 14 Sept. 1773, 28 Oct. 1773, 30 Jan. 1777; The London Magazine 45 (1776): 54.41. Andrew Oliver, ed., The Journal of Samuel Curwen, Loyalist (Cambridge and Salem, Mass.: Harvard University Press/Salem Institute, 1972), 942–43.42. Lloyd’s Evening Post, 10–12 July 1780.43. 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).44. [Frederick Augustus Wendeborn,] A View of England Towards the Close of the Eighteenth Century (London, 1791), 1:78.45. Andrea McKenzie, “From True Confessions to True Reporting? The Decline and Fall of the Ordinary’s Account,” London Journal 30.1 (2005): 55–70; 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), 246–68.46. 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].47. “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.48. 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).49. 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 2.50. BL, Add MS 59356, ff.59–60, Nepean to Grenville, 1 m/45 p[ast] 1 pm, 18 Sept. [1789].51. BL, Add MS 59356, ff.61–62, Nepean to Grenville, 4 pm, 19 Sept. [1789].52. HMC [30] Dropmore Papers, 1:516.53. BL, Add MS 59356, ff.65–66, Recorder of London to Nepean, 9 pm, 19 Sept. 1789.54. BL, Add MS 59356, ff.63–64, Nepean to Grenville, 10 pm, [19 Sept. 1789]; HMC [30] Dropmore Papers, 1:516–18.55. HMC [30] Dropmore Papers, 1:523; OBSP 1788–89, p. 980 (o17891028–1).56. Jupp, Lord Grenville, 91.57. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–69), 4:394.58. The Annual Register 25 (1782): 220. Incomplete accounts of this communication also appear in The Gentleman’s Magazine 52 (1782): 452, and The New Annual Register 3 (1782): 59. I 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. 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, and Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), 273–78.59. 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.60. Brotherton Collection (Leeds University), Sydney/Townshend Papers K22, the Duke of Richmond to Lord Sydney, 7 April 1786.61. The Gentleman’s Magazine 50 (1780): 541; see also ibid., 481–83; and ibid., 53 (1783): 891. 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; and Spierenburg, The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe (New Brunswick: Rutgers University Press, 1991).62. Beattie, Policing and Punishment, 277–82; 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; and Randall McGowen, “The Problem of Punishment in Eighteenth-Century England,” in ibid., 210–31.63. 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; Richard Connors, “‘The Grand Inquest of the Nation’: Parliamentary Committees and Social Policy in Mid-Eighteenth-Century England,” Parliamentary History 14 (1995): 285–313; 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; Anthony J. Draper, “Cesare Beccaria’s Influence on English Discussions of Punishment, 1764–1789,” History of European Ideas 26 (2000): 177–99; 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.64. Beattie, Crime and the Courts, chap. 10; 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); King, Crime, Justice and Discretion, passim.65. The Gentleman’s Magazine 53 (1783): 891, 973; see also 54 (1784): 955.66. The Gentleman’s Magazine 55 (1785): 319; see also 53 (1783): 802; 55 (1785): 484; 56 (1786): 990; and 57 (1787): 84–85.67. The London Magazine, n.s. 4 (1785): 144, 305, 386; 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; The Monthly Review 72 (1785): 146, 382–83; 74 (1786): 300; 75 (1786): 74, 231–32, 304–5; 78 (1788): 338–39; 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): 403–15.68. G. B. Hill and L. F. Powell, eds., Boswell’s Life of Johnson, 5 vols. (Oxford: Clarendon Press, 1934–50), 4:328; Irma S. Lustig and Frederick A. Pottle, eds., Boswell: The Applause of the Jury, 1782–85 (New York: McGraw-Hill, 1981), 304–5, 338.69. Lustig and Pottle, eds., Applause of the Jury, 304–5, 338. 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), 192–93.70. William Cobbett, The Parliamentary History of England, from the Earliest Period to the Year 1803, vol. 25, 1785–86, 888–89. For the larger contexts of this measure, see David Philips, “‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement 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; and Ruth Paley, “The Middlesex Justices Act of 1792: Its Origins and Effects” (Ph.D. thesis, University of Reading, 1983).71. Radzinowicz, History of the English Criminal Law, 1:446–48.72. The Annual Register 31 (1789): 196; The Gentleman’s Magazine 58 (1788): 926–27, 1024, 1117; 59 (1789): 271, 272.73. Arthur Aspinall, ed., The Later Correspondence of George III, 5 vols. (Cambridge, 1962–70), 1:402 (my emphasis).74. William L. Clements Library (University of Michigan, Ann Arbor), Pitt Papers 2, William Pitt to Lord Sydney, 10 March 1789.75. 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, and Simon Devereaux, “Peel, Pardon and Punishment: The Recorder’s Report Revisited,” in Penal Practice and Culture, ed. Devereaux and Griffiths, 258–84.76. Abbott Emerson Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607–1776 (Chapel Hill: University of North Carolina Press, 1947); 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); Cynthia Herrup, “Punishing Pardon: Some Thoughts on the Origins of Penal Transportation,” in Penal Practice and Culture, ed. Devereaux and Griffiths, 121–37.77. 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; Beattie, Policing and Punishment, esp. chap. 9.78. 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, and Oldham, Britain’s Convicts to the Colonies, 80–94. 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. 149.79. House of Commons Parliamentary Papers, 1810 (45) XIV, pp. 1–58.80. Ekirch, Bound for America, 48–49.81. Reprinted in The Gentleman’s Magazine 56 (1786): 263–64.82. 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. 1789.83. HMC [30] Dropmore Papers, 1:523.84. The Times of London, 26 Sept. 1789.85. 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.86. 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), and Christopher Chalkin, English Counties and Public Building, 1650–1830 (London: Hambledon Press, 1998), chaps. 7–10. 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; John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003); and Allyson N. May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003).87. 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.88. BL, Add MS 59356 ff.65-66, Recorder of London to Nepean, 9 pm, 19 Sept. 1789. See also OBSP 1788–89, pp. 889 (o17890909–4), 890 (o17890909–7).89. Beattie, Crime and the Courts, chap. 8; King, Crime, Justice and Discretion, passim.90. 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), 270–308.91. Beattie, Policing and Punishment, 458–61; House of Commons Parliamentary Papers, 1819 (585) VIII, pp.146-54.92. The Times of London, 2 Nov. 1789.93. OBSP 1788–89 (June), p. 634 (s17890909–1).94. The Annual Register 32 (1790): 227; 33 (1791): 18, 37; 34 (1792): 5.95. HMC [30] Dropmore Papers, 1:518–19, 523.96. NA, HO 48/1A, Attorney General Richard Pepper Arden to Lord Sydney, n.d. [ca. Aug.–Oct. 1784].97. HMC [30] Dropmore Papers, 1:517–18.98. NA, HO 13/11 pp. 224–25, 225, Recorder of London to the Duke of Portland, 27 June 1797; and reply, 29 June 1797.99. NA, HO 48/8, Attorney General John Scott and Solicitor General John Mitford to the Duke of Portland, 5 April 1799.100. Beattie, Crime and the Courts, 431–32.101. 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.102. HMC [30] Dropmore Papers, 1:523–24.103. Alan Atkinson, “The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire,” Past & Present 144 (August 1994): 88–115.104. Blackstone, Commentaries, 4:390.105. Randall McGowen, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England,” Buffalo Law Review 32 (1983): 89–125; Martin Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990), 56–67106. See Figure 1; OBSP 1788–89 (Sept.), pp. 887–88 (s17890909–1); and The Gentleman’s Magazine 59 (1789): 1045.107. 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): 279–313.108. 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.109. The Times of London, 27 Feb. 1800.110. 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; Gatrell, Hanging Tree, 56–105, 601–11; King, Crime, Justice and Discretion, 340–51. 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), 58–70.111. 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): 382–405, 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. 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). 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): 215–28.112. Gatrell, Hanging Tree, 208–21.113. 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).114. 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.

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