Eighteenth-Century Patrimonial Administration

By the seventeenth century, England's judicial business was carried out by two sets of courts, the Quarter Sessions and the Assizes, which both operated at the county level. The assize judges were state officers who were usually judges in superior courts of common law and were responsible for trying the most serious, or capital, offenses (Reference CockburnCockburn 1972:92). Twice a year, two judges left London and visited one of England's six assize circuits, where they set up court. Aside from hearing pleas and delivering gaols, they played an important role in passing the concerns of central government into the localities and reporting county affairs back to the monarch (Reference SharpeSharpe 1984:23).

But it was in the Quarter Sessions that national power intersected most closely with local power. The county's Lord Lieutenant recommended powerful landowners to the Lord Chancellor. They were then appointed (on the Crown's behalf) to the commission of the peace, where as justices of the peace (JPs) their duties included implementing central government policies at the local level (Reference LandauLandau 1984:70). These amateur magistrates were granted tremendous judicial and administrative powers, and by the eighteenth century the Quarter Sessions, which met four times a year, had evolved into “local parliaments” (Reference Stone and JeanneStone & Stone 1984:30). According to Weber, this form of government organization approximated his ideal-type of patrimonialism, since rule was divided between local officials, or “notables,” and the rulers to whom they owed their personal allegiance (Reference Weber, Roth and WittichWeber [1922]1978:290–1). He suggests that this “radical” type of self-government, dependent upon the status and sense of duty of local justices, was inevitably characterized by “administrative minimization and ad hoc activities, which thus did not amount to a continuous and systematic operation” (Reference Weber, Roth and WittichWeber [1922]1978:1061, emphasis in original). Transportation, which demanded that JPs occasionally rid the nation of its criminal offenders and absolved JPs of any further responsibility for their punishment, combined these qualities into a specific penal sanction.

JPs were responsible for numerous tasks that included setting wages, assessing rates, and levying taxes. Their extensive judicial powers included dealing with criminal complaints, issuing warrants for arrest, and presiding over the trial of those charged with noncapital property offenses that made up the bulk of all property crimes (Reference BeattieBeattie 1986:5, Reference Thane and Thompson284–5; Thane 1990:6). In addition, a pair of justices, and in some cases three, had the power to punish a felon with imprisonment in the local house of correction or with transportation to the colonies. Furthermore, up until the early nineteenth century, they had the authority to impose the death sentence, although this was only used in exceptional circumstances (Reference CockburnCockburn 1972:92).

The extent to which eighteenth-century justices operated autonomously from central government control was remarkable. In fact they have been described as “[A] law to themselves” (Reference OsborneOsborne 1960:179). Not only was this attributable to their wealth and status as local gentry, but also to the declining importance of the Privy Council (a committee of the monarch's principal advisors). The Privy Council, “the organ of central government” in the seventeenth century, had kept constant watch over local authorities and could issue an order at any time for the implementation of legal statutes (Reference Innes and StoneInnes 1994:98, emphasis in original). However, following the dramatic events of 1688 its power was tremendously curtailed. As a result of the Glorious Revolution, which secured Parliament's independence in relation to the Crown, the amount of business handled by Parliament increased significantly. Many of the matters dealt with by the Privy Council were dispersed among other centralized and specialized departments, including the Treasury, the Admiralty, and the Secretaries of State, and the supervision of justices, along with other Privy Council responsibilities, was “marginalized” (quote in Reference Innes and StoneInnes 1994:97–8; Reference LandauLandau 1984:7). This realignment of government power was accompanied with a change in the constitutional relations between central and local government. Parliament reacted strongly to the exercise of absolute power by James II's Privy Council, and in the aftermath of the Glorious Revolution broke the council's stronghold. Constitutional objections to central government interference explain why assize judges, who supervised magistrates, rarely intervened in the administrative and legal affairs of county government throughout the eighteenth century (Reference LandauLandau 1984:8, 39).

JPs, of course, did not act entirely autonomously from Parliament since they were heavily influenced politically and socially by their party loyalties. Nevertheless, they still had an interest in preserving their regional authority and independence and, as local landowners, their decisions were influenced by provincial as well as national concerns. Included among their “mass of administrative duties” were the construction and administration of the local gaols and houses of correction (Reference OsborneOsborne 1960:180). Despite being the “owners and managers” of these institutions, many justices were uninterested in assuming the burdensome and unpleasant task of prison management (Reference Harding, Hines, Ireland and RawlingsHarding et al. 1985:84). Instead, they appointed a prison governor or master who was charged with overseeing the prison's disciplinary regimen. Throughout most of the eighteenth century, they permitted the prison master to run these establishments as a business. Since the master made his profits by cutting costs and extorting fees, prisons were often squalid and disorganized places, and prisoners were compelled to pay for their use of a cell, their bedding, and even for their release (Reference Harding, Hines, Ireland and RawlingsHarding et al. 1985:90).

Due to the autonomy of local justices from central government control and their abundant responsibilities, numerous laws augmenting the justices' power to build, repair, regulate, and inspect gaols were rarely put into effect. As a result, imprisonment failed to develop as a practical penal option.Footnote ⁷ For example, Henry Fielding, the well-known JP for Middlesex County and the City of Westminster, noted that the passage of the 1744 Vagrant Act,Footnote ⁸ which ordered justices of the peace to report on the conditions of their local houses of correction, was too general to be put into practice: “For the business of the [Quarter] sessions is so complicated and various, that it happens, as in all cases where men have too much to do, that they do little or nothing effectually” (Reference FieldingFielding 1751:65).

Without any central government intervention in the governance of local prisons due to the distinctive characteristics of a decentralized and patrimonial form of administration, penitentiaries failed to develop. The inability of the 1779 Penitentiary Act to provoke widespread change in the practice of imprisonment is testimony to the strength of this limitation. Not only did the Penitentiary Act have the support of the most prominent penal reformers of its day, including John Howard and Sir William Blackstone, but it also established a model for strict and precise prison regulations whose principles were made general to all prisons in 1791. Among its many provisions, the act advocated well-regulated labor accompanied with separate confinement, provided measurements for the exact size of separate prison cells, and recommended standards for cleanliness and prayer. It also called for the appointment of a prison inspector by the Crown who would report to Parliament (Reference SempleSemple 1993). Some magistrates took the initiative to adopt the act's guidelines, but generally it had a very limited effect on local prison administration. National prison inspectors were not appointed until 1835, and many local prisons remained poorly regulated and unsanitary (Reference McConvilleMcConville 1981:224). The Lancashire magistrate and prison reformer T. B. Bayley criticized the inadequate response of his fellow local magistrates to the act by decrying their “aversion to any scheme which requires continued attention, watchfulness, and trouble” (quoted in Reference GillenGillen 1982:743).

In sum, the structure and organization of Britain's penal apparatus in the eighteenth century affected the state's capacity to implement prison policies. Because being a JP was essentially a “part-time occupation for gentlemen” who were removed geographically and administratively from any central control, local penal administration was “technically unsuited to deal continuously and intensively with administrative tasks” (Reference Weber, Roth and WittichWeber [1922]1978:1061–2). Without a means of mandating prison building and regulations, state penal policy could not reliably increase local prison capacity or the effectiveness of imprisonment. As a result, it did not invite a more frequent use of this form of punishment.

By contrast, transportation served the interests of JPs; it increased their existing discretionary authority, and it helped minimize the administrative burden of their office. Parliament's insistence upon the imprisonment of felons would have demanded a significant investment of JPs' efforts in the supervision and correction of criminal offenders on home soil. Given justices' continued lack of interest in implementing policies for the maintenance and regulation of their local prisons, the effective implementation of a punishment that “demanded systematic administrative activity”—an effective prison system—would have required that the central government take a much more active role in ensuring that justices were actually implementing national prison policies (Reference Weber, Roth and WittichWeber [1922]1978:1062). Increasing the scope of central government supervision would have infringed upon justices' autonomy. In contrast, by merely expelling British offenders, both local and central government interests were fulfilled. Transportation expediently rid the nation of its felons; shifted the burden of penal administration onto private citizens, merchants, and colonists; and allowed Parliament to remain detached from local government. By the nineteenth century this would all begin to change: the central government would substitute local prisons and transportation with the centrally organized penitentiary.

Nineteenth-Century Bureaucratic Administration

By the end of the eighteenth century, the structure and administration of the British state began to undergo a decisive shift. These changes facilitated the development of modern penitentiaries. The effective implementation of prison policies is an administratively intensive and maximizing task. Once specific rules have been legislated, their successful application demands a significant commitment of resources. Funds are necessary for turning policy into practice, and the appointment of bureaucratic officials with jurisdictional authority helps ensure that the new policies are being implemented successfully. Likewise, any changes to these policies require a level of administrative organization that is relatively rational and coherent. In failing to compare the distinctive characteristics of patrimonial and bureaucratic forms of administration, reformist and revisionist accounts are led to exaggerate the influence of reformers' intentions on penal change and to diminish the importance of this organizational shift as a transformative mechanism. A comparison of transportation to imprisonment reveals how the emergence of a powerful centralized state and the specific features of a central government prison bureaucracy contributed significantly to the penitentiary's development as a penal sanction.

Studies on the formation of states in Western Europe that have sought to explain increases in the state's administrative capacity to extract resources and to exercise control over a defined territory have identified warmaking as an important explanatory variable (Reference Weber, Roth and WittichWeber [1922]1978:212; Reference TillyTilly 1975; Reference MannMann 1986, Reference Mann1993). In response to the fiscal and organizational demands of its warmaking activities in the seventeenth and eighteenth centuries, the British state had developed a centralized and bureaucratized fiscal-military apparatus for the more effective raising of revenues and coordination of military campaigns (Reference BrewerBrewer 1988). Larger wars demanded additional finances and organization, and the unprecedented cost and scale of Britain's wars against the French (1792–1815) necessitated an expansion in the administrative apparatus of the state (Reference TillyTilly 1995:132). In turn, this expansion helped shift the weight of state power toward Parliament and central administration and away from local authorities (Reference TillyTilly 1995, Reference Tilly1997). These historical developments in the organization and administration of the state provided the necessary structural conditions for the advancement of a national prison system in two ways: (1) the concentration of capital and the growth of centralized state power increased the state's capacity to construct national prisons, and (2) this power was augmented by the bureaucratization of the state's penal apparatus, which enabled the state to overcome the resistance of JPs and implement national prison policies.

The cost of Britain's wars against Napoleon at the beginning of the nineteenth century and the sheer size of its military forces (army and navy) easily overshadowed those of previous wars (Reference BrewerBrewer 1988). In addition to using customs and excise taxes to finance its wars, Britain introduced a national income tax for the first time between 1799 and 1803. Tilly estimates that tax collections quadrupled from about £17 million in 1790 to £80 million in 1815. Similarly, the size of Britain's army (237,000 men) against Napoleon dwarfed the 45,000 mobilized for the Seven Year's War fought fifty years earlier (Reference TillyTilly 1995:130–2).

As the central state's power and its access to capital grew, central government broadened its scope of activities. Shortly after the end of the Napoleonic wars, Britain built its first national penitentiary, Millbank. This massive edifice was, at the time, twice the size of any existing provincial prison and one of the most expensive public buildings in England (Reference McConvilleMcConville 1981:136, 138). Its completion in 1816 required that Parliament, for the first time, become directly involved in prison policy and administration. Over the next sixty years, government committees on punishment were formed frequently, and their reports invariably resulted in the passage of prison statutes. In comparison, between 1718 and 1778, the House of Commons only formed a handful of committees to examine existing penal sanctions (Reference McConvilleMcConville 1981).

Commensurate with this shift in Parliament's capacity to fund, and its obligation to manage, national prisons, Parliamentary control over local prison management gradually increased. Although the state's fiscal apparatus was the quickest to bureaucratize (Reference Kiser and KaneKiser & Kane 2001), the principles of efficiency and rational calculation gradually affected the state's penal administration. It was only with the piecemeal development of a bureaucratic form of penal administration that the central government's was able to overcome the resistance of local magistrates and implement a national set of uniform prison regulations.

Weber believed that the rapid spread of bureaucratic administration could be attributed to its “technical superiority” over other forms of administrative organization (Reference Weber, Roth and WittichWeber [1922]1978:973). Several characteristics contribute to its machine-like efficiency, including (1) the creation of offices staffed by full-time salaried officials selected on the basis of their qualifications; (2) the performance of specialized duties and the development of a body of technical knowledge; and (3) management based upon written rules. Furthermore, Weber notes that an important attribute of bureaucracy is a concentration of the means of administration ([1922]1978:956–8, 980–3). These characteristics, primarily “the role of technical knowledge,” led him to conclude that the bureaucracy is “the most rational known means of exercising authority over human beings” ([1922]1978:223).

Organizationally, changes in Britain's penal administration—the appointment of national experts, the enhancement of technical knowledge through prison inspections, and the accumulation of written reports in the exercise of official business—matched Weber's pure or ideal-type. In addition, Parliament, through its provision of grants-in-aid, expropriated resources from the largely autonomous local justices and concentrated them in the hands of central government officials. This increase in central government authority due to bureaucratization made it possible for the state to overcome resistance from local justices and implement a centrally organized penitentiary system. The corresponding growth in prison construction and improvements in prison management decreased support for, and the state's reliance on, transportation.

In 1835, Parliament appointed five national prison inspectors who were responsible for inspecting local prisons to ensure that justices were executing prison legislation.Footnote ⁹ Members of Parliament decided that the position required a “high class” or “efficient person to perform a most important duty.”Footnote ¹⁰ Those eventually selected possessed specialized knowledge because of their long and practical experience with prison reform. For example, William Crawford was a founding member and a secretary of the Society for the Improvement of Prison Discipline, and Reverend Whitworth Russell had been chaplain of the Millbank penitentiary (Reference McConvilleMcConville 1981:171–2). Although none of the inspectors had any executive powers, i.e., the power to mandate that justices follow their recommendations, their official status as prison experts (domination through knowledge, in Weberian terms) and their direct access to both local prisons and central government gave them considerable authority. Furthermore, their meticulous and voluminous inspection reports provided a permanent and compelling record of any failures by local justices to improve prison conditions. Presented before Parliament and published annually, these reports exerted a significant influence on the Home Secretary, and they became an effective means of effecting change in local prison administration (Reference McConvilleMcConville 1981:170–1). The creation of another “expert” office in 1844, the solicitor-general, further involved central government in prison regulation. Included among the appointee's various prison management responsibilities were frequent consultations with local magistrates on prison conversion and construction.

Since the cost of local prison administration fell on the magistrates, the power of inspectors was constrained. However, when Parliament, as part of a more general pattern of fiscal reform in the 1830s, began to provide substantial subsidies toward local prison expenses, it was able to exercise greater control over their administration. Since magistrates were being asked to implement costly prison regulations espoused by national prison inspectors, Parliament reasoned that they were entitled to some financial relief. The Treasury provided grants-in-aid to cover half the expenses of prosecutions and the entire costs of conveying convicts from local to government prisons. In 1846, these grants were increased to cover between a quarter and a third of the total cost of the maintenance of local prisoners (Reference McConvilleMcConville 1981:256–9). By permitting the Home Secretary to withhold these funds from local justices who failed to comply with prison regulations, the 1865 Prisons Act dramatically reduced local judicial autonomy.Footnote ¹¹ This provision had originally been proposed by a Lords' Select Committee led by Lord Carnarvon in 1863. The Carnarvon Committee used evidence in inspectors' reports detailing the failures of local justices to comply voluntarily with inspectors' suggestions to support its recommendation.

In short, the increase in prison legislation due to the recommendations of central government inspectors led to a concentration of the means of expenditure. The Home Office then used these funds to regulate and control local prisons to promote widespread prison reform. With Parliament controlling the purse strings, it was not long before the regulation of local prisons was wrested entirely from the JPs' control. In 1877, Britain's prison system was nationalized, with ownership of all local prisons transferred to the Secretary of State for the Home Office. His appointment of a national board of prison commissioners permitted, for the first time, the uniform application of an elaborate code of standards for prison conditions and disciplinary measures under direct supervision from the center.

In sum, in the eighteenth century, the widespread imprisonment of felons was slow to develop, and Britain relied upon transportation as a form of punishment. In the absence of a centralized and professionalized administrative structure, Parliament was unable to enforce legislation that would have facilitated the development of the penitentiary on a national scale. As a consequence, the state relied upon expelling its felons overseas, a sanction that required little in the way of an administrative apparatus. Processes of centralization and bureaucratization in the nineteenth century enabled Parliament to gradually consolidate its authority over local authorities and to establish an extensive and rationalized prison system. Thus, this comparison of transportation's replacement with the modern penitentiary underscores how fundamental structural changes in the power and administrative apparatus of the state had profound effects on the social organization of punishment.

Eighteenth-Century British Liberties—The Rights of the “Free-Born Englishman”

Following the abdication of James II, who had tried to rule England autocratically, Parliament enacted the Bill of Rights in 1689, placing significant restrictions on the powers of the Crown and increasing Parliament's authority (Reference GilmourGilmour 1992:31). The monarch's right to suspend or dispense laws without Parliament's consent was taken away, the maintenance of a standing army in peacetime was made dependent upon Parliament's approval, and, most important, Parliament was put in charge of the nation's finances. In addition to ensuring Parliament a powerful and independent role in governing the nation, the Bill of Rights also limited the executive power of the monarch over the individual, stating that “excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted” (cited in Reference WilliamsWilliams 1960:26–9). None of the ideas expressed in 1689 were particularly new (attempts to curtail the monarch's power had dominated English history throughout the seventeenth century), but they brought the constitutional limits of state power into sharp relief and changed English government and politics “profoundly and irrevocably” (Reference MillerMiller 1997:47).

In fact, eighteenth-century English politics was heavily influenced by a political outlook that was habitually suspicious of any increases in the executive power of the government, and which was committed to protecting the balanced constitution where government power was divided between the King, Lords, and Commons (Reference DickinsonDickinson 1977:102). This “country interest” was the dominant form of parliamentary discourse, and those politicians who espoused a country perspective were the first to contest any policies that increased the size and power of executive government (Reference PocockPocock 1971:122).

Bills that attempted to increase the standing army during peacetime or to create a national police force were particularly likely to provoke strong opposition, since the Crown could use these institutions of coercion as instruments of repression “to suppress the subject at home” (Reference DickinsonDickinson 1977:51). Eighteenth-century parliamentary debates contain numerous instances of hostility toward these measures. For example, in 1752, during a debate on the number of the land forces, Sir John Hyde Cotton argued that people were “mad” to consent to a continuous standing army, and Mr. William Thornton argued, “An army, Sir, was never kept up in any country, in any time of peace, but sooner or later it was used against the liberties of the people, and at last enslaved them.”Footnote ¹³ Outside of Parliament, the anti-army tradition appeared in a variety of texts written by constitutional writers and historians, including Blackstone, Burgh, and Buchan (Reference SchwoererSchwoerer 1974). The practical effect of such opposition was to keep the size of the armed forces in check. Porter writes that Britain's peacetime standing army was “pygmy by continental standards”: Until the mid-eighteenth century, the mainland army during peacetime comprised 10–15,000, men while the French army stood at 140,000 (Reference PorterPorter 1982:23).

A similar apprehension was leveled at the police. The presence of a centralized law enforcement agency to maintain order was regarded as a danger to cherished English liberties (Radzinowicz 1956: Vol. 3). As magistrates, the Fielding brothers (Henry and John) had pressed for a reform of the disorganized volunteer system of parish constables since mid-century, but with little success. Attempts at more sweeping reform in London were made in 1774, 1785, and 1792, but constitutional objections were so fierce that any attempt to form a professional police, i.e., paid law enforcers with extensive powers, were doomed to fail. Constitutional objections in the Daily Universal Register toward a 1785 bill that created three paid police commissioners within the city are emblematic of the resistance that police supporters faced during this period. Making an unfavorable comparison to the French police, the paper stated that the bill was an arbitrary use of executive power and threatened to destroy the “liberty of the subject” (cited in Reference Philips, Gatrell, Lenman and ParkerPhilips 1980:168). Even when the London Metropolitan Police Act was passed in 1829 it faced stiff opposition,Footnote ¹⁴ and concerns about the arbitrary use of state power significantly restricted this new agency's jurisdictional powers (Reference Philips, Gatrell, Lenman and ParkerPhilips 1980).

In addition to their fears about government despotism, many members of Parliament, especially those who evinced Country views, associated standing armies and organized police forces with an expanding central government bureaucracy. The creation of offices provided the Crown with the opportunity to reward members of parliament with places or pensions in the administration. Constitutional objections were strenuous, since many members of Parliament believed the Crown would use “placemen” to exert its influence in Parliament (Reference SpeckSpeck 1979:15–6). Patronage threatened Parliament's independence and undermined a core conviction that only gentlemen of landed property should sit in Parliament (Reference DickinsonDickinson 1977). A class of governors who derived their power from office and not their possession of land was particularly loathsome because it challenged the authority of the “natural rulers” of the country (Reference BrewerBrewer 1988).

Increases in the size of the army and the appointment of salaried magistrates and police officials clearly provided opportunities for government patronage. Moreover, the latter directly challenged the authority of local JPs whose autonomy and reputation for impartial justice depended upon their status as wealthy landowners. In denouncing a 1792 police bill as a “dangerous innovation in principle,” Sir Charles Edward Fox remarked, “The police of this country was well administered to in the ordinary mode by gentlemen who undertook to discharge the duty without deriving any emoluments from it, and in the safest way to the freedom of the subject.”Footnote ¹⁵ Of course, constitutional arguments resonated much more powerfully with those inside and outside of Parliament than any admission that the appointment of stipendiary magistrates challenged the lucrative fee-for-service system enjoyed by local JPs (Reference Philips, Gatrell, Lenman and ParkerPhilips 1980).

In this political environment, any policy that sought to expand the powers of central government, either through the creation of mechanisms of coercion or through administrative offices, “tended to escalate into larger issues about the structure and nature of government” (Reference BrewerBrewer 1988:157). Any opposition was likely to be framed in country terms, which created an “anti-institutional bias which acted as a powerful counterweight to the growth of state power” (Reference BrewerBrewer 1988:158). Nor was this merely confined to Parliament. This country discourse valorizing English liberties was widely disseminated in newspapers and pamphlets, and “undoubtedly” fostered a large following among middle- and lower-class property owners (Reference DickinsonDickinson 1977:191). Furthermore, this anti-interventionist perception of government was materialized in the law and criminal justice system and the willingness of the populace to riot.

E. P. Thompson argues that political conceptions of “liberties” were part of a broader “moral consensus” on the limits to government power “beyond which the Englishman was not prepared to be pushed around” (Reference ThompsonThompson 1963:79–80). Since only the wealthy and privileged knew how to write, it is very difficult to capture these popular attitudes toward government authority. Nevertheless, we do know that this authority was derived and expressed through the law, and that it was the law that was “central to seventeenth- and eighteenth-century Englishmen's understanding of what was both special and laudable about their political system” (Reference Brewer, Styles, Brewer and StylesBrewer & Styles 1980:14). Its powerful effects originated from its “potency as a system of ideas” (the rule of law was inextricably intertwined with notions of popular right and justice) and from its “commonplace materiality” (the nation's judicial system, in particular the courts, was the state's primary means of exercising authority and control) (Reference Ewick and SilbeyEwick & Silbey 1998:16). By investigating how the law operated in relation to punishment and the rest of the criminal justice system, and by examining popular actions challenging government authority, we can try and establish the boundaries of central government power. Since punishments are obvious demonstrations of this power, we can get a sense of how they functioned within these limits.

Although law and the courts were governed by the ruling classes (Reference Hay, Hay, Linebaugh, Rule, Thompson and WinslowHay 1975), what is so striking about eighteenth-century Britain is the extent to which social order depended upon popular participation in the administration of justice. Without an organized police force, the government relied upon the initiative and the resources of the victim for bringing offenders to justice. It was the victim who had to present the case to the magistrate, gather evidence, recompense witnesses for the inconveniences of a court appearance, and pay prosecution fees (Reference KingKing 1984:27). In addition, the institutional autonomy of the trial jury, composed of local villagers and townspeople, checked the power of the state-appointed justice in the courtroom. The eighteenth-century jury was the “hallmark” of English liberty, and it often used its considerable power to either recommend acquittal or a return a partial verdict on a lesser charge (Reference GreenGreen 1985:280). Independence from government interference in the criminal justice system established certain limits to state authority, as did the rhetoric of liberty that pronounced, among other rights, the importance of freedom from arbitrary arrest and equality before the law.

Nor were libertarian values and beliefs, hostile to arbitrary power and protected by the laws, to be taken lightly by state authorities. If sufficiently provoked, the populace might riot, and the frequency with which it did so was an ever-present threat to a state that had no effective organization for restoring order. There were all sorts of riots in the eighteenth century (including riots over turnpikes, impressment, taxes, and rising grain prices), but rioters' intentions were broadly similar: they sought “to defend traditional rights and civil liberties and resist intrusive state power” (Reference MalcolmsonMalcolmson 1981:133).

What emerges from this brief discussion on state power is that British libertarian values and beliefs placed real practical and constitutional constraints on the limits to central government authority. These strongly held beliefs in liberty, or freedom from central government interference in local affairs, influenced penal outcomes. Large-scale organized imprisonment was anathema to the British. Despite numerous criticisms of transportation as an ineffective deterrent and as failing to prevent convicts from returning before their completion of their sentence (Reference EkirchEkirch 1987), penal reformers' recommendations for imprisonment at hard labor were repeatedly rejected on the grounds that they infringed upon the liberties of “free-born subjects.” For instance, a bill “to change the Punishment of Felony in certain cases … to Confinement, and hard Labour, in his Majesty's Dock Yards,” or the “Hard Labor Bill,” was not passed into law (Reference LambertLambert 1975:357–67). Reflecting on its failure, Jonas Hanway, the late-eighteenth-century penal reformer, commented that this punishment was not “calculated for this meridian of liberty” (Reference HanwayHanway 1775:221, italics in original). Similarly, in opposing control of prisons by central government authorities at century's end, John Jebb, an overseer of a county House of Industry, warned, “Liberty, the choicest gift of man,” could be destroyed by allowing court-appointed officials, rather than local magistrates, to inspect and manage the nation's prisons (Reference JebbJebb 1786:564–5).

Transportation persisted because the creation of a national prison system was widely regarded as synonymous with executive tyranny. The construction of national penitentiaries, vast improvements in local prison administration, or both would have required that the central government play a much more visible and active role in the penal process, so there was little support for these measures. Many regarded the spectacle of prisoners forced to labor on public works as a form of slavery, and any increase in the government's administrative machinery as a threat to liberty. In regard to the latter, the creation of central government prison offices, whether for a more effective police or form of punishment, threatened parliament's independence and, more directly, encroached on the sovereignty of local justices. By contrast, transportation allowed the state to remain largely absent from the administration of punishment. Writing in 1726, Robe was perplexed by the curious paradox that the British should “fear worse consequences” to their liberties from imprisonment at home than transporting convicts overseas where they would be sold into indentured servitude (Reference RobeRobe 1726:8). This paradox can be reconciled if we consider that transportation, just like many other eighteenth-century punishments (whipping, pillorying, and the stocks), was regarded as acceptable because it was generally a local and community affair that required minimal central government involvement.

Nineteenth-Century British Liberties—Mutual Rights and Obligations.

In the nineteenth century, the concentration of state power at the center significantly changed existing social relations as broad segments of the populace began to make collective demands on national, not local, power-holders on issues that affected their ordinary lives (Reference TillyTilly 1995:14–5). Obviously Britain was still far from being a democracy, and government officials were uninterested in ceding their power, but state actors increasingly took these demands into consideration in making their decisions. In providing new avenues for popular influence, state agents and their subjects created new opportunities for repression and reform. Claim-making on a national level required a national response, and penal developments were affected by this growing recognition of the consultative role of citizens in central government business; two other key elements of democratization—equality of citizenship and protection from arbitrary actions by agents of the state—accompanied this change (Reference TillyTilly 1995:15). The abandonment of transportation and the development of a national bureaucratic system of prisons were due to: (1) mounting criticisms of local prison management as arbitrary and repressive; and (2) growing opposition to transportation as a violation of democratic sentiments within Britain and among its emancipated colonists. Thus, as liberties gradually began to be defined in terms of national government officials taking a more active role in expanding mutual rights and obligations, punishments that exposed citizens to capricious punishments (by local magistrates or colonial settlers), or were incompatible with popular freedoms (defined in terms of democratic rights), were no longer acceptable. Unlike transportation and local imprisonment, the penitentiary, although repressive, was considered a more equitable form of punishment administered under the watchful eye of a responsive national government.

Due to their political access, evangelicals, philanthropists, and middle-class reformers, such as William Wilberforce and Elizabeth Fry, were very successful at bringing attention to the plight of British prisons and promoting the virtues of the penitentiary. They formed societies for the improvement of prison discipline and through campaigns of organized lectures, press conferences, and petitions made the penitentiary an issue of national importance. Furthermore, they published prison reports throughout the 1820s and 1830s, often criticizing local justices and urging national standards for prison discipline (Reference Webb and WebbWebb & Webb [1922]1963:72). But they were significantly less successful in compelling the central government to intervene directly in local prison management and to abandon transportation. As a result, their influence, although important, has been overstated.

A comparison of imprisonment to transportation suggests that it was not until the development of a more democratic process of collective claim-making that Parliament was pressured into providing a decisive national response to demands for prison reform and for the abandonment of transportation. Weber notes that mass democracy creates a “favorable situation” for the development of bureaucracy, since a bureaucracy promises everyone “formal equality of treatment” at the hands of officials selected according to their expertise, not social status, and in the form of impartial rules (Reference Weber, Roth and WittichWeber [1922]1978:226). Ironically, Parliament's repressive reaction to political unrest in the early nineteenth century contributed to the rise of a central government prison bureaucracy. Political activists confined in local prisons brought national attention to their squalid conditions and poor management under local justices. The well-publicized complaints of political radicals, such as Henry Hunt, who was imprisoned in Ilchester Gaol in 1819, were sufficiently embarrassing that Parliament appointed a Royal Commission to investigate his claims of the “corrupt and sadistic” practices of local magistrates (Reference BelchemBelchem 1981:25). This, in turn, contributed to the passage of the 1823 Gaols Act consolidating twenty-three existing prison regulations, establishing more effective guidelines for local prison management, and requesting that JPs submit quarterly prison reports to the Home Secretary (Reference McConvilleMcConville 1981:249).Footnote ¹⁶ The public crusades of other radicals in “many prisons” during the 1820s (Reference DeLacyDeLacy 1986:152) compelled magistrates to account for their actions to Parliament. As a general consequence, this activism “undermined confidence in the justices' commitment to administrative reform and contributed to the increased centralization of prison administration” (Reference DeLacyDeLacy 1986:135, 138–9).

It is likely that the appointment of national officials with the authority to intervene directly in local prison administration developed in response to this popular claim-making on central government officials. In 1822 a Parliamentary committee acknowledged, for the first time, that it was the duty of government to take care of the nation's felons.Footnote ¹⁷ This recognition of the government's responsibilities to its citizens was broadened under the 1832 Reform Act, creating “citizenship,” or “a greatly expanded set of mutual rights and obligations linking the state to a broad category of people” (Reference TillyTilly 1995:383).Footnote ¹⁸ Shortly after the passage of the act, the Parliamentary committee on punishment that had recommended a national inspectorate noted that in this new political climate members of the public would no longer ignore the abuses of unreformed prisons and “leave their representatives to sleep.”Footnote ¹⁹

In contrast to the eighteenth century, the central government was now expected to respond to demands that it intervene directly in the nation's prison administration. The appointment of prison experts charged with implementing and enforcing strict prison rules and regulations would help protect a prisoner's rights by subjecting them to a uniform and impartial system of discipline, hygiene, and hard labor and by protecting them, at least in theory, from the arbitrary actions of local prison officials. Justices' objections to government interference on constitutional grounds hindered centralization, but did not stop its progress. Despite numerous prison acts augmenting the central government's power over local justices, magisterial opposition to nationalization as a threat to local government autonomy was still sufficiently fierce in 1877 that The Times reported that “the Prisons Bill affords a singular illustration of the tenacity of English habits and the spirit of local administration” (The Times 1877:9). Despite these challenges, however, the bill passed and Britain finally had a national penitentiary system.

While the bureaucratic features of imprisonment encouraged government accountability and helped ensure equitable punishment, criticisms of transportation centered on the absence of these characteristics. By the 1830s, popular arguments for its termination were primarily concerned with the assignment of convicts to Australian settlers, since ideas about “liberty” or freedom were incompatible with a penal sanction that continued to transfer the administration of punishment to civilians. Public sentiment in Britain had influenced the abolition of slavery, and some of this opposition now targeted transportation, since any punishment that established a master-servant relationship constituted a form of slavery (Reference Hirst, Morris and RothmanHirst 1995:256). The 1837 Molesworth Committee, whose members unanimously recommended the immediate abolition of transportation, focused its attack on this anachronism. The committee concluded that the assignment of convicts to settlers resembled slavery and was inherently unequal since the convict's servitude necessarily varied “according to the temper and character of the master to whom the convict is assigned.”Footnote ²⁰ In its place, the committee urged that the state adopt a national system of rational imprisonment where a felon's sentence would be under “the eyes of Government” and administered according to an impartial code of regulations enforced by state actors.Footnote ²¹

Even though the British government ceased transportation to New South Wales in 1840, it continued to send convicts, albeit in rapidly declining numbers, to Van Diemen's Land (1840–52) and Western Australia (1853–68) (Reference RadzinowiczRadzinowicz 1986: Vol. 5, p. 468). The Molesworth Committee had hastened transportation's demise but, just as at home, it was the development of mass national politics and democratic claim-making between the British state and its emancipated colonists that ultimately brought it to a close.

Throughout the 1840s and 1850s, settlers from many of the Australian colonies formed anti-transportation leagues to oppose the dumping of British convicts on Australian shores. Through rallies and petitions they argued that transportation without their explicit consent contravened democratic values. The resolutions read out by one of the members of the New South Wales Legislative Council articulated their reasons for dissent. Transportation was: “(a) a violation of the will of the majority of the people,” (b) “incompatible with our existence as a free colony, desiring a self-government, to be made the receptacle of another's felons,” and (c) “to the highest degree unjust” since it sacrificed “the great social and political interests of the colony at large, to the pecuniary profit of a fraction of its inhabitants.”Footnote ²² Certainly some colonists continued to support the provision of cheap convict labor, but these concerns did not resonate with the same intensity. In fact, a statement by Lord Palmerston, Britain's Home Secretary, demonstrated that the move toward democratic reform lay at the heart of the government's decision to end transportation: “We had conceded to those colonies the principle and rights of self-government, and that reason being made, we must … submit to its consequences” (quoted in Reference ShawShaw 1966:351). Only with the end of transportation did the penitentiary become the punishment of unchallenged supremacy in Britain.