A Global History of Execution and the Criminal Corpse

Richard Ward, Richard Ward, Richard Ward

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137444011
• Topic: Historia
• Subtopic: Historia social

Through studies of beheaded Irish traitors, smugglers hung in chains on the English coast, suicides subjected to the surgeon's knife in Dresden and the burial of executed Nazi war criminals, this volume provides a fresh perspective on the history of capital punishment. The chapters 'Introduction: A Global History of Execution and the Criminal Corpse' and 'The Gibbet in the Landscape: Locating the Criminal Corpse in Mid-Eighteenth-Century England' are open access under a CC BY 4.0 license.

1

Punishing the Dead: Execution and the Executed Body in Eighteenth-Century Ireland

James Kelly

Death by execution was the standard punishment for treasonable and felonious crime in eighteenth-century Ireland. Women who were guilty either of petit treason, of which viricide and murdering one’s master were prime examples, or ‘barbarous murder’ (a serious felony, which embraced infanticide) were liable to be sentenced to death by burning.¹ Persons of either gender who refused to plea (‘standing mute’ in contemporary parlance) in cases of felony could be subjected to the sanction of peine forte et dure, or pressing to death. But the usual mode of administering a capital sentence was by hanging. In this respect Ireland conformed to the pattern of early modern Europe, where, in the words of Pieter Spierenburg, hanging was ‘the standard non-honourable form of the death penalty’.² Moreover, there was no acknowledged alternative since, unlike jurisdictions that practised decapitation or, as in revolutionary France, where decapitation (by guillotine) was normative, deprivation of life by decapitation was not available to the judges who handed down the punishments administered to those found guilty of a capital offence in Ireland.³ This is not to imply that the decapitation of offenders (and the time-honoured practice of displaying heads) was no more: judges were authorised to direct that heads should be struck off post-mortem and publicly displayed in respect of offenders deemed guilty of ‘barbarous murder’, and this sanction was appealed to across the century in cases of this kind.⁴ It was, as this suggests, resorted to in a minority of instances only. Death by simple hanging was the means by which capital punishment was imposed upon the male murderers, burglars, rapists, thieves, rioters, insurgents and others who comprised the bulk of the offenders who forfeited their lives in early eighteenth-century Ireland.⁵

Though the comparable severity with which the authorities responded to Toryism in the 1710s and to insurgency in the 1790s is evidence that reliance on the death penalty was as firm at the end of the century as it was at the beginning, neither the criminal law, the system of criminal justice, nor the means by which capital sentences were applied was unchanging. There are many features to which reference might be made to demonstrate this mutability and the distinctiveness of the Irish system. One can, for example, point to the fact that the printed ‘gallows speech’, which was an earnest of the authorities’ belief in the merits of public execution and of offenders dying a ‘good death’, disappeared as a category of cheap print in the 1740s.⁶ More indicatively perhaps, Irish peers and MPs were less willing than their British equivalents to populate the statute book with capital offences. Twenty-nine capital statutes were enacted in Ireland compared with 67 at Westminster between 1690 and 1760.⁷ Others were added thereafter, but even when it was at its maximum in the 1790s, Ireland did not emulate the ‘more than two-hundred distinctly-defined capital offenses’ provided for by Westminster.⁸ Yet in many other respects, Irish lawmakers were content to echo the attitudes of their British peers. It was not coincidental that the Irish parliament authorised the abolition of the punishment of peine forte et dure in 1774 (two years after the Westminster parliament), and in 1791 followed Westminster in rescinding the punishment of death by burning in favour of death by hanging in the case of female offenders found guilty of petit treason or ‘barbarous murder’. ⁹

Changing public attitudes had a bearing also on the manner in which executions were administered. It would be misleading to suggest that many of those who ventured forth with criticism of the sanctions provided for by the criminal justice system from the 1770s were opposed in principle to the death penalty. But just as unease at the frequency to which recourse was made to the gallows in the early eighteenth century prompted greater recourse to benefit of clergy and to transportation, which meant that many convicted of felonious conduct were spared the gallows, the articulation of similar reservations during the 1770s contributed to the decision in the 1780s to embark on a programme of prison construction, and, momentarily, to seem to favour incarceration over transportation and (in certain instances) over execution as a punishment.¹⁰ More significantly for present purposes, it encouraged the abandonment in the early 1780s in both Dublin and London of the execution procession and the relocation of the place of execution from near St Stephen’s Green and Tyburn to the main city prison.¹¹ If, as has been suggested, this signalled the beginnings of an approach to penal sanction centred on the prison, its appeal and embrace was more limited and contingent than Foucault’s schematic approach to the subject of punishment suggests. Neither incarceration nor ‘increasingly private forms of retribution’, of which the relocation of capital punishment at or close to a major prison has been identified as an example, achieved the necessary moral, political or practical ascendancy at this time to effect the fundamental shift in direction Foucault hypothesised. On the contrary, as in England, they were soon put on the back foot by the demand for condign sanction that greeted the crime wave that seized both islands in the aftermath of the conclusion of the American War of Independence.¹² Furthermore, this disposition was reinforced, first, by a demand for a vigorous response to the renewal of agrarian unrest in the mid-1780s, and, second, by the outbreak of still more general insurgency in the 1790s, which encouraged recourse to traditional and exemplary forms of capital punishment borne out of the long-established belief that this was necessary to combat the perceived atavistic lawlessness and rebellious disposition of the (Catholic) masses.

There was, as the latter observation suggests, a tangible ethnico-religious and linguistic character to the manner in which the law was applied in Ireland deriving from the fact that the Protestant elite, whose language was English, ruled an expropriated Catholic majority, most of whom conversed through the medium of Irish.¹³ As a consequence, the law that was enacted by the exclusively Protestant Irish legislature mirrored its vision of what was appropriate, and took little cognisance of other perspectives. Furthermore, its application and administration by officials derived disproportionately from the ranks of that elite, and by a like-minded judiciary, whose ranks were periodically restocked by recruits from the English regional bench, who brought their own prejudices and partialities to bear, ensured that the chasm in understanding that existed between the ruling and the ruled may well have been wider in Ireland than in England.¹⁴ In any event, the full implications of this for any account of how the law was applied (by the authorities) and perceived (by the population at large) are complex, multi-layered and resistant to simple summary.¹⁵ They are also beyond the scope of this paper, but it is important to note, consistent with the number of capital offences on the statute book, that both the absolute and relative rate of capital convictions in Ireland was below the English norm.¹⁶ This is not in keeping with the pattern of capital punishment that has been assumed to apply by those who have perceived the Anglo-Irish nexus as stereotypically colonial.¹⁷ But, it may also be observed, it was not consistent either with the implicitly more consensual composite monarchy model that has recently been suggested.¹⁸ This notwithstanding, it is clear from the manner in which the Irish and English common law traditions evolved over many centuries, their shared reliance on the great legal texts of Coke, Littleton and Blackstone, the requirement that practitioners in both jurisdictions attend the London Inns of Court, and, not least, the scrutiny given Irish legislation at the British Privy Council board ensured a degree of consistency in the law and in its administration, application and interpretation that echoed to similarity rather than difference.¹⁹

Yet if the comparability in the manner in which capital punishment was applied and administered in eighteenth-century Ireland and England is an obvious consequence of the kingdoms’ shared histories, it did not inhibit the Irish system from evolving its own distinct features, of which the variation in the number of capital offences (referred to above), the manner in which recourse was made to capital sanction, and the way in which capital punishment was applied are pertinent here. It was, of course, sufficient in the vast majority of capital cases simply to expunge life consistent with the judicial instruction in such cases that an offender should be ‘hanged by the neck until dead’ within a defined time (a few days or a week was commonplace) after the pronouncement of sentence. In most such instances, the offender’s body was claimed by family or friends, committed to a coffin, waked and sent for Christian burial. However, since the offences for which one might forfeit one’s life ranged from high treason through petit treason to felony, and the sanctions available to judges varied according to the categorisation of the offence, offenders who perpetrated the more egregious offences were likely to forfeit their life in a more overtly painful, and ritualistic, way than those ordered ‘to be hanged by the neck ‘till dead’. The most serious offence of all was high treason, which was an offence against the state. In such cases, the object was not just to deprive of life, but to do so in a manner that involved the degradation of the culprit’s body since the sanction provided for stipulated that offenders were hanged, drawn and quartered, and the body, or parts thereof, publicly displayed. The account of the sentence included in a legal vade mecum published in Dublin in 1755 provides a vivid, pithy, description:

The judgment in all cases of high treason … is that the offender shall be drawn on a hurdle or sledge to the place of execution, and there be hanged by the neck, to be cut down alive, his privy members cut off, his bowels ript up, taken out and burnt before his face, his head severed from his body, and his body divided into four quarters, which are to be disposed of as the king shall think fit.²⁰

In keeping with the fact that high treason was the most serious offence of which one might be found guilty, and Ireland was not in a state of rebellion for most of the eighteenth century, the proportion of malefactors sent to be hanged, drawn and quartered, and of individuals who had their body displayed, in whole or in part, was a small proportion of the whole. Yet there is no evading the fact that the criminal justice system placed a premium on punishment, and since, as well as high treason, capital sanctions were provided for in respect of petit treason, which encompassed serious offences against the subject, felony (which embraced murder), and larceny above 12d., judges were empowered to respond with appropriate severity. Death by hanging was the standard sentence handed down when an accused was found guilty of ordinary murder, but in ‘extraordinary cases’ more penal sanctions were called for and (generally) ordered. Thus in cases of the felony of ‘barbarous murder’, it was not uncommon for judges to direct that the offender be taken from the court and hanged immediately, but judges were empowered to direct in cases of especial heinousness that the convicted person should be hanged and gibbeted (hanged in chains); hanged, drawn and quartered and gibbeted. There was, in other words, an appreciating range of sanctions to which judges were required to appeal depending on the order of the offence, and which survived the efforts of the system’s critics to suggest that since capital punishment was a replication in ‘cold blood’ of the ‘horrible crime’ it was designed to penalise, alternative, useful punishments were preferable.²¹

The reservations influentially articulated by Cesare Beccaria, and his disciples across Europe, from the 1760s at the palpable failure of the extensive menu of capital punishments to inhibit criminality mirrored popular unease at a minority of capital verdicts and, more broadly, at the extension of punishment to the executed body. The public was, as this suggests, neither neutral participants in the execution process nor passive recipients of the reformative homilies ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figures, Tables and Maps
• Foreword by Pieter Spierenburg
• Acknowledgments
• Notes on Contributors
• Introduction: A Global History of Execution and the Criminal Corpse
• 1 Punishing the Dead: Execution and the Executed Body in Eighteenth-Century Ireland
• 2 ‘For the Benefit of Example’: Crime-Scene Executions in England, 1720–1830
• 3 The Gibbet in the Landscape: Locating the Criminal Corpse in Mid-Eighteenth-Century England
• 4 Never Equal before Death: Three Experiences of Dying as Seen Through Eighteenth-Century French Executions
• 5 The Ill-Treated Body: Punishing and Utilising the Early Modern Suicide Corpse
• 6 Execution and its Aftermath in the Nineteenth-Century British Empire
• 7 Strangled by the Chinese and Kept ‘Alive’ by the British: Two Infamous Executions and the Discourse of Chinese Legal Despotism
• 8 Dismembering and Remembering the Body: Execution and Post-Execution Display in Africa, c. 1870–2000
• 9 Burying the Past? The Post-Execution History of Nazi War Criminals
• Bibliography
• Name Index
• Subject Index