I am once again, delighted to welcome back a now regular guest to All Things Georgian, the historian, Mr R M Healey. Today his article is about Patrick Colquhoun on the criminal code relating to capital offences in the UK compared with that which prevailed in Austria.
One of the best-known facts about life in Georgian England was that so many seemingly minor crimes were punishable by death. From stealing goods worth a few shillings, to forgery, with many minor infractions in between, murdering someone was not the only crime that attracted the death penalty.
The famous magistrate (for Middlesex, Surrey, Kent and Essex) and commentator on the penal code, Patrick (later Sir Patrick) Colquhoun, devoted a good deal of his best-selling Treatise on the Police of the Metropolis to the question on whether the death penalty for seemingly trivial offences was justified.
Colquhoun’s Treatise (5th edition of 1797) is essential reading for anyone who wants to know what dangers lay in store for offenders, sometimes driven by poverty and desperation, to steal, lie and forge. But Colquhoun was a reformer, not a hanger and flogger.
He sought remedies for the prevention of crimes, and he saw the irrationality of executing someone for stealing property worth a certain amount. To show just how harsh the punishments were for comparatively minor violations he listed all those offences which carried the death penalty. Here is a selection of the most iniquitous:
Forgery of deeds, bonds, bills, notes etc., bankrupts not surrendering, or concealing their effects, house breaking in the day time, shop lifting above five shillings, stealing above 40 shillings in any house, stealing linen &c from bleaching grounds or destroying the linen therein, stealing horse, cattle or sheep, breaking down the head of a fish pond, whereby fish may be lost, maiming or killing cattle maliciously, stealing woollen cloth from tenter grounds, uttering counterfeit money ,servants purloining their masters’ goods to the value of 40 shillings, robbery of the mail, cutting down trees in an avenue, sending threatening letters, riots by twelve or more and not dispersing in an hour after proclamation, sacrilege, destroying turnpikes or bridges, gates, weighing engine locks, sluices, concealing the death of a Bastard child…
Of course, it did not follow that those convicted of some of the most trivial of these offences paid the ultimate penalty. When the Annual Register recorded the monthly county reports of those convicted of capital crimes it invariably declared that most offenders were reprieved. We can surmise that perhaps only those convicted of murder, large-scale forgery, coining, arson, highway robbery and serious housebreaking, to name but a few heinous crimes, were hanged.
Bizarrely, certain offences, though seemingly as serious, or more serious, than the crimes listed by Colquhoun, did not carry the death penalty, but were merely punishable by ‘transportation, whipping, imprisonment, the pillory and hard labour in houses of correction, according to the nature of the offence.’ These included ripping and stealing lead, iron, copper, &c, or buying or receiving, assaulting with intent to rob, stealing children with their apparel, stealing fish from a pond or river, bigamy, manslaughter and killing without malice.
However, most lawmakers agreed that the crime which most deserved the noose was forgery. The Georgian period saw a number of high profile forgery cases involving eminent men. These included Dr William Dodd, the high-living ‘macaroni parson’ who Dr Johnson failed to save from the gibbet in 1777; the celebrated ‘Engraver to the King’ and inventor of stipple, William Wynne Ryland, who tried to defraud the East India Company and was hanged in 1783; and finally, the banker Henry Fauntleroy who in 1824 became the last person to die on the gallows for the crime of forgery.
Colquhoun then compared the legal code instituted by Emperor Joseph II of Austria that related to murder, manslaughter and other violent offences, with that which prevailed in the United Kingdom.
In Austria not one offence was punishable by death, though in some cases, the alternative punishment, which might involve being chained up for thirty years, sometimes without proper food, could have seemed a far worse experience—a sort of living death. Here are some of the offences and the punishments they carried.
Imprisonment not less than 15, nor more than 30 years…When a criminal is condemned to severe imprisonment, he has no bed but the floor, no nourishment but bread and water, and all communication with relations or even strangers, is refused him. When condemned to milder imprisonment, better nourishment is allowed; but he has nothing to drink but water.
Killing a man in self-defence if the layer exceed the bounds of necessity
Imprisonment, not less than one month, nor more than five years, and condemnation to the public works
Murder—with an intention to rob or steal the property of the person, or other property intrusted to his care
Imprisonment not less than 30 years, with the hot iron; in cruel cases, to be closely chained, with corporal punishment every year. This punishment was inflicted with a ‘whip, rod or stick publickly on the criminal’; the degree of punishment ( within 100 lashes or strokes at one time) depends on the sound prudence of the Judge.
Assassination by stratagem, arms or poison.
Condemnation to the Chain, not less than 30 years…the prisoner is closely chained, that he has no more liberty than serves for the indispensable motion of his body…
Inducing another to commit murder by caresses, promises, presents or threats, whether death is the result or not
Imprisonment, not less than 5, nor more than 8 years, and condemnation to the public works—if murder is committed, the criminal shall suffer as a murderer
Duelling—or challenging another to combat with murderous weapon on whatever pretence the challenge be grounded —the person accepting the challenge is equally guilty…
Imprisonment not more than 12, not less than 8 years…If death ensues; condemnation to the Chain for 30 years, where the survivor is the challenger if the survivor be the party challenged.
A woman with child using means to procure abortion.
Imprisonment, not less than 15, nor more than 30 years; and condemnation to the public works: augmented when married women.
Not all countries were as lenient as Austria. In 1772 the Annual Register (1772, pp. 132- 133) reported that the punishment meted out to the Swiss manager of a French vineyard, who had been convicted of rape and murder, was decided under the Swiss military code. It was that the prisoner be sawn in half while still alive. This barbaric practice was not confined to Swiss law but can be found in other nations around the world.
It is interesting to note that the offence of duelling in England seems not to have carried any penalty, unless it came under ‘manslaughter’.
Throughout the Georgian period this method of satisfying an injury to honour or reputation was often practiced, sometimes by leading politicians and members of the aristocracy. Possibly the most infamous literary duel of the period, which occurred at Chalk Farm, near the present Primrose Hill in 1821, was fought over a number of hostile remarks on ‘The Cockney School’ by the critic J. G. Lockhart in Blackwood’s Magazine.
John Scott, the editor of the famous London Magazine, where Lamb’s ‘Essays of Elia’ were appearing at the time, took umbrage and retaliated with his own imprecations. Lockhart travelled to London to challenge Scott, but his friend and second, Jonathan Christie, agreed to take his place. The first shots were deliberately aimed wide, which should have ended the matter. Tragically, a second round ensued, and Scott was fatally wounded. Christie was apprehended but was later acquitted by a jury.
P (atrick) Colquhoun), A Treatise on the Police of the Metropolis (fifth edition, 1797). See especially pages 284 – 288; 272 – 273.
Annual Register, or a View of the History, Politics and Literature…( 1758 – ) passim.