Combating London's Criminal Class

A State Divided, 1869-95

Matthew Bach

• Publisher: Bloomsbury Academic
• Year: 2020
• ISBN:
  9781350156234
• Edition: 1
• Topic: Storia
• Subtopic: Storia britannica moderna

The criminal class was seen as a violent, immoral and dissolute sub-section of Victorian London's population. Making their living through crime and openly hostile to society, the lives of these criminals were characterised by drunkenness, theft and brutality. This book explores whether this criminal class did indeed truly exist, and the effectivenessof measures brought against it. Tracing the notion of the criminal class from as early as the 16th century, this book questions whether this sub-section of society did indeed exist. Bach discusses how unease of London's notorious rookeries, the frenzy of media attention and a [ word deleted here] panic among the general public enforced and encouraged the fear of the 'criminal class' and perpetuated state efforts of social control. Using the Habitual Criminals Bills, this book explores how and why this legislation was introduced to deal with repeat offenders, and assesses how successful its repressive measures were. Demonstrating how the Metropolitan Police Force and London's Magistrates were not always willing tools of the British state, this book uses court records and private correspondence to reveal how inconsistent and unsuccessful many of these measures and punishments were, and calls into question the notion that the state gained control over recidivists in this period.

1

The Origins of the Habitual Criminals Act 1869: ‘Our Wretched Little Bill’

What shall we do with our convicts?¹

(The Earl of Carlisle, Liberal peer, 1858)

The Habitual Criminals Act 1869 was, as Leon Radzinowicz and Roger Hood have argued, a ‘heavy baggage of repressive measures’.² To understand why such legislation was introduced it will be necessary to examine the role of the press, public opinion in London, and the Social Science Association (SSA), which was an important pressure group with very close ties to the Liberal Party.³ According to the published criminal statistics, the very significant analytical pitfalls of which have already been discussed, the 1860s were years in which crime decreased in England and Wales, as did the size of the ‘criminal class’.⁴ Nonetheless, at the end of the decade the government felt it necessary to bring forward legislation that greatly increased the power of the state over repeat offenders and those who had been granted early release from prison on a licence.

Why was this the case? This chapter will begin by describing and analysing legislation from the 1850s and 1860s that sought to deal with repeat offenders and licence-holders. This first section will also seek to explain why successive governments believed these earlier efforts required augmentation and will focus on periods of alarm in London concerning the effects of the ending of transportation. It will also address the genesis and ideology of the SSA and analyse the impact of its advocacy. The second section will assess events from 1868 and 1869 and determine how they shaped the Habitual Criminals Act 1869. Here the significant role of the SSA, in particular, will again be considered.

The Habitual Criminals Act 1869 has been interpreted by numerous historians as part of a process of adaptation to changed circumstances, notably the decline and eventual cessation of transportation to Australia, an adaptation that was driven, it is argued, by public alarm in London, stoked by the city’s newspapers, about the accumulation of criminals at home.⁵ For example, Victor Bailey has argued that following the British government’s acceptance in 1840 of the demands of the colonists of New South Wales that they should take no further convicts, the public, especially in London, became increasingly alarmed at newspaper reports of a dangerous criminal class, leading governments to implement legislation in 1853, 1857, 1864 and 1869.⁶ According to this account, there was no ‘coherent penal policy’, rather, as Peter Bartip has said, a kind of ‘hand to mouth pragmatism’ as governments sought to deal with public unease about crime.⁷ Lawrence Goldman has correctly noted the dominance in the relevant historiography of this discourse depicting mid-Victorian penal reform as a ‘piecemeal adaptation to essentially pragmatic considerations’.⁸ We will see that this view cannot fully explain the reasons for the key penal changes of the 1850s and 1860s regarding the criminal class, including the Habitual Criminals Act 1869, and that the sustained advocacy and influence of the SSA were, instead, vital factors.

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The Habitual Criminals Act 1869 was not the first legislative measure that sought to deal with the consequences of the cessation of transportation. Acts passed in 1853, 1857 and 1864 were designed to replace transportation with an expanded and enhanced penal regime at home. Under the acts, criminals were to be sentenced to longer terms of incarceration, in the hopes of reforming them, while a licence or ticket-of-leave system was also to be introduced. This section will analyse the specific reasons for these legislative changes and what they entailed. The genesis of the Habitual Criminals Act 1869 can only be properly understood in the context of these earlier pieces of legislation, which, as we shall see, it built upon.

The gradual end of transportation to Australia necessitated a significant re-assessment of penal policy. By 1840 transportation had ‘almost entirely’ replaced capital punishment as the key legal mechanism to deal with those convicted of serious crime.⁹ Capital punishment, as Michael Melling has noted, ‘proved less and less popular with the public in the nineteenth century’.¹⁰ Consequently, public hangings finally ceased in 1867. Radzinowicz and Hood have estimated that throughout the 1860s fewer than ten people were actually executed in Britain each year.¹¹ As a result, transportation became ‘the ordinary sentence upon conviction’ for any felonious offence.¹² However, in the 1850s and 1860s British governments were forced to respond to the imminent ending of transportation to Australia. As those transported were very unlikely to ever return, removing convicts to Australia was ‘almost as effective a way of preventing crime in England as was executing them’.¹³ However, from 1840 transportation to Australia was progressively ended, largely in response to objections to the practice from the colonists.¹⁴ The refusal of New South Wales to accept more convicts meant that from 1840 many who would previously have been transported were already being incarcerated and then released on home shores.¹⁵ As Randall McGowen has argued, this new reality ‘produced an anxiety … about releasing serious offenders back into society’.¹⁶ Members of the legislature were not immune from these concerns. Consequently, the cessation of transportation had a significant influence on penal policy. It was, as Barry Godfrey, David Cox and Stephen Farrall have said, ‘the catalyst for a new legislative programme’.¹⁷ Martin Wiener has also argued that ‘fears induced by the ending of transportation’ were the ‘most important short-run influence’ on the penal legislation of governments in the 1850s and 1860s.¹⁸ Indeed penal measures of 1853, 1857 and 1864, which will be discussed below, were justified primarily on the grounds that transportation was no longer available.

The rise of the penitentiary was the other key change in Britain’s penal regime during the early and mid-nineteenth century. Since the late eighteenth century advocates of reform such as Whig politicians Samuel Romilly, Thomas Buxton and William Wilberforce had attacked the state of Britain’s prisons with some justification.¹⁹ As A. H. Manchester has claimed, many prisons were ‘squalid nurseries of crime’ in which old and young offenders mixed freely.²⁰ In response to such concerns a new type of prison was created. In 1816 the first new model prison, called a penitentiary, was opened at Millbank in London. Pentonville, also in London, followed in 1842. The design of these prisons was partly borrowed from the utilitarian Jeremy Bentham’s sketch of 1791, entitled Panopticon. His prison design allowed a person standing in a central hexagon to enjoy a clear line of sight into every cell in six pentagons that led from it, enabling an ‘omnipresent inspection’.²¹ Owing to the perceived benefits of this design at Millbank and Pentonville, a further fifty-six panoptic penitentiaries were constructed throughout the UK by 1848. In these penitentiaries corporal punishment was rarely used and the separation of prisoners was firmly enforced. These elements of the penitentiary regime were accompanied by religious teaching, a strict diet and a total intolerance of the prison subculture of drinking, gambling and the use of prostitutes that formerly prevailed.²² Finally, and in contrast to the former, locally run, system, ‘no aspect of prison administration was to escape the principle of uniformity’.²³

Previously the focus of much punishment had been the body of the offender, demonstrating the power of the sovereign in a public display intended primarily to deter, not to reform.²⁴ The penitentiary was focused instead on the mind and soul of the offender. The various activities described above, which prisoners were forced to undertake, showed the extent of the control that the state could exert over offenders. The intended result, to borrow Michel Foucault’s memorable expression, was the creation of ‘docile bodies’ by wearing prisoners down and convincing them of the futility of rebellion in the face of the power of the state.²⁵ Indeed, the first of Foucault’s seven universal maxims of good penitentiary conditions was that ‘[p]enal detention must have as its essential function the transformation of the individual’s behaviour’.²⁶ Thus there was a discernible ‘shift’ in the ‘objective of punishment’.²⁷ The chief concern of penal policy, embodied in the new penitentiaries, was now to ‘transform the criminal’.²⁸

Legislative recognition of the decline of transportation and the desire to accommodate more offenders in penitentiaries in Britain first came in 1853. In that year Van Diemen’s Land stopped receiving convicts, meaning that of the Australian colonies only Western Australia remained a possible destination for transported criminals. This change was met by the introduction of the new punishment of penal servitude as a substitute for sentences of transportation of fewer than fourteen years, which were abolished. Penal servitude was to involve an initial period of nine months’ solitary confinement. The remainder of the sentence was then to be served at one of five prisons that had been specially designed or adapted to facilitate employment of prisoners on public works. These facilities were at Borstal, Chatham, Dartmoor, Portland and Portsmouth.²⁹ As Peter Bartrip has noted, this was a ‘classic case’ of ‘reform through pressure of events’.³⁰ When introducing the bill’s second reading in the House of Lords on 11 July 1853, Lord Cranworth, Lord Chancellor in Lord Aberdeen’s Whig/Peelite coalition government, made it clear that the end of transportation was the reason for the legislation.³¹ A minimum of three years’ penal servitude in a large penitentiary augmented magistrates’ and judges’ existing sen...