Readers may be aware of the recent furore over Naomi Wolf’s misinterpretation of Old Bailey trial evidence in her book, Outrages: Sex, Censorship, and the Criminalization of Love, in support of her argument that executions for sodomy increased at the Old Bailey in the second half of the nineteenth century. Wolf cited in particular the case of Thomas Silver, tried for ‘an unnatural offence’ in 1857, where the Old Bailey Online gives the punishment sentence as ‘Death Recorded’. As Richard Ward, quoted in the Guardian, notes, this term meant the opposite of what Wolf thought. First used in 1823, the term ‘death recorded’ was used in cases where the judge wished to record a sentence of death, as he was legally required to do, while at the same time indicating his intention to pardon the convict. In fact, if Wolf had clicked on the ‘related sources’ link from this trial on the Old Bailey website to the records in the associated website the Digital Panopticon (a massive collection of criminal justice data which traces the lives of Old Bailey convicts following their convictions), she would have seen that following his conditional pardon Silver was sentenced to penal servitude for three years, and, two and a half years later, was released on a prison licence (an early form of parole).
There are two lessons to be learned from this debacle, first about the use of online historical sources, and, second about how the English judicial system worked in the nineteenth century, in particular the differences between courtroom sentences and the actual punishments convicts received.
The first point is obvious, but needs to be made. When searching for evidence online, it is all too easy to pay insufficient attention to context and to fail to follow up links to related information. Nowhere in this very short trial report (censored, like all Old Bailey trial reports of sodomy after 1785), does the word ‘executed’ appear. In fact, this webpage has included since March 2018 (which admittedly may have been late in Wolf’s research), a link at the top of the page (as noted above) to the Digital Panopticon, which provides evidence of Silver’s actual imprisonment and early discharge. And the ‘Historical Background’ pages on the Old Bailey website include an explanation of the differences between courtroom sentences and the actual punishments convicts received.
This is the second, historically significant, point: convicts at the Old Bailey frequently did not receive the punishments to which they were sentenced. While this general point has been known in its broad outlines for some time, it is a central research theme of Simon Devereaux’s recent project, Capital Convictions at the Old Bailey, 1730-1837, which tracked down the actual penal outcomes for all capital convicts up to 1837, and a key research finding of the Digital Panopticon project, which researched the outcomes of all defendants convicted at the Old Bailey between 1780 and 1870. This research demonstrates that convicts sentenced to death and transportation often did not experience these punishments, and even those sentenced to imprisonment remained in prison for less time than prescribed by their sentence. The English judicial system was permeated by the exercise of judicial discretion, in which judges, the Home Office, and even penal officers shaped actual punishments to meet the perceived significance and circumstances of each case.
In the case of the death penalty, there was a long term decline in the proportion and number of convicts who were actually executed. The proportion of Old Bailey capital convicts executed fell from 43.5% in the 1780s to 10.4% between 1810 and 1837, by which point reforms to the penal code had led to a sharp reduction in capital offences: after 1837, the only offences punishable by death were murder, infanticide, wounding, rape, treason, robbery, burglary, arson, and sodomy. In practice, however, the only Old Bailey convicts actually executed after 1837 were murderers (and even 40% of these were pardoned).
The penal environment of those convicted of sodomy in the second half of the nineteenth century was thus one in which the death penalty was not a realistic possibility. Other forms of persecuting homosexuality certainly remained, and may have even worsened, but the cruellest punishments were confined to an earlier period. The criminal persecution of sodomy has a long history. As the Homosexuality page on the Old Bailey Online indicates, there were waves of prosecutions throughout the eighteenth century, leading to executions and near-death maulings by crowds on the pillory. This continued into the next century: a search of the Digital Panopticon database shows that fourteen men convicted of sodomy were executed between 1803 and 1835. Fortunately, however, punishment by execution and the pillory stopped there: James Pratt and John Smith, both executed on 27 November 1835, were the last men convicted of sodomy at the Old Bailey to meet this horrible fate.
Robert Shoemaker is Professor of Eighteenth-Century British history. His main interests lie in social and cultural history, particularly urban history, gender history, and the history of crime, justice, and punishment, and in the use of digital technologies in historical research. He is co-director, with Professor Tim Hitchcock at the University of Hertfordshire and Professor Clive Emsley of the Open University, of the Old Bailey Proceedings Online, which created a fully searchable edition of the entire run of published accounts of trials which took place at the Old Bailey from 1674 to 1913, and, with Hitchcock, London Lives, 1690-1800: Crime, Poverty and Social Policy in the Metropolis, a fully searchable edition of 240,000 manuscript records and fifteen datasets which makes it possible to compile biographies of eighteenth-century Londoners.