Slavery, the Slave
Trade and their abolition
The conditions of workers in the nineteenth century
Child and Female Labour
The humanising of punishments and prison reform
The abolition of torture on the Continent and in England
The revival of torture in the twentieth century
Note On Contemporary Torture
Note on the Star Chamber
The treatment of the mentally ill
Humanitarianism and the conditions of women in the nineteenth century
The Prevention of Cruelty to Animals
The Red Cross and the Geneva Convention Footnotes
In the fifteenth century Portugal sought to outflank Islam by circumventing Africa. Portugese sailors made their first contact with negro Africa when they reached Cape Verde in 1444. On that first voyage the cargo landed at Lagos included 235 slaves.* By 1461, when Prince Henry died, the Portugese had reached Sierra Leone and by 1471, the Gold Coast. Ownership of black slaves was becoming something of a status symbol in Lisbon. About 800 were imported annually. Apart from domestic slaves in households, slaves worked as ferrymen and labourers. Eugenius IV had blessed Portugese African exploration and colonisation.
Slavery was more readily acceptable in southern Europe. It had continued in the middle ages when slaves could be obtained from northern Africa. To some extent this resulted from the extension of Muslim power because, although slavery had long existed in Egypt and the African kingdoms, it was only with the Islamic conquests in the Sudan and Ghana that a trade in slaves had become significant in Islamic Africa.
The trickle of slaves into southern Europe* for some centuries before the 15th century had eased Portugese acceptance of the new slave trade notwithstanding Pius II’s denunciation of the enslavement of those who had been converted.*
In 1503, after the voyages of Columbus, the Spanish Governor in the Indies, Ovando, commenced using Indians in the mines. Las Casas, the Bishop who accompanied him, observed the fearful toll that the work took on the Indians. What happened next was to have fateful consequences. Las Casas suggested that they be replaced by negroes. Thus began the transatlantic slave trade from Africa to the Americas.* Within a short time the King of Spain had granted a patent for the supply from Africa of 4000 negroes annually to Haiti, Cuba, Jamaica and Puerto Rico.
Many of the slaves were kidnapped. They were hunted by African chiefs who had been bribed with casks of brandy and other European goods. Many were captured fleeing the villages which the chiefs had set alight. The captured Africans were taken to the coast by their African captors and kept in holding pens until wholesaled to European ship captains. It was not until the nineteenth century that Europeans went inland. Another source of slaves were the professional Arab slave traders.
It has been estimated that some 900,000 slaves had been landed in the Americas by 1600.* It may be that without the arrival of the protestant countries the trade would have withered. There seems to be substance to the claim by Hugh Thomas that ‘despite this official neglect of criticisms of the new trade in black slaves, it is hard not to feel that there were by 1600 or so, enough hostile voices to have brought the trade to an end within the next generation or so had it not been for the entry into the business of the Northern European protestants’.* The spirit of Las Casas had not been extinguished by his death and the ‘hostile voices’ to whom Thomas refers included the Dominican Tomas de Mercado who decried against slavery in Mexico (1569); the jurist Frias de Albornaz in his writings (1573); the Jesuit Frei Miguel Garcia, who in Brazil, refused confession to anyone who owned slaves (1580) and the Portugese Bishop of the Cape Verde Islands, Frei Pedro Brandao, who proposed that all Africans be baptised and set free (1590) and somewhat later, the denunciation and threat of excommunication by Urban VIII to any person who practised slavery (1639).
However, from the early seventeenth century demand for African labour expanded greatly with increased importation of sugar into Europe. The new sugar estates in Brazil could not be worked satisfactorily by Indians. It is estimated that in all 200,000 slaves were exported to the Americas in the first quarter of the seventeenth century.*
Spanish and Portugese control of the supply of African slaves was weakening with the decline in their imperial power, especially after Portugal split from the dual monarchy in 1640. The Dutch, French and English had begun to compete.
By 1642 the Dutch had expelled the Portuguese from the Gold Coast. The Dutch monopoly provoked the rivalry of the English and the French.*
The first English slave trader was John Hawkins in the sixteenth century, but his prominence was short-lived. In 1568, a Spanish fleet overwhelmed his fleet. Hawkins fled and England did not become active in the slave trade until after colonies were established in the Americas during the reign of James I.* Jamestown, the first permanent English settlement (1607) was in dire straits until the discovery that its land was suitable for tobacco growing. In 1619 a Dutch ship boarded a Spanish vessel, pirated its cargo of Africans, and then itself beset by storms, landed at Jamestown. This was the first importation of negroes to arrive in North America. During the early seventeenth century the English settlers relied upon indentured servants gathered from the poor in London, to work the tobacco farms. But the demand for tobacco in Europe – what King James called that ‘stinking suffumigation’ – was such that, with cheap land, more and more tobacco was produced. Africans were needed to supply the labour.
The first Africans brought to America were treated as indentured servants, like poor whites, not as slaves for life. Only in the mid-seventeenth century did race become the foremost factor. Slavery had been first justified on the grounds that Africans were not christians. But the prospect of Africans converting to christianity helped bring about an emphasis on race.* Slavery became a status recognised by statute in Massachusetts in 1641; in Connecticut in 1650 and in Virginia in 1661.* In 1669 Virginia declared it lawful to kill a slave during punishment.
The slave trade was very profitable. A monopoly was vested in the Royal African Company in 1672 and this lasted until 1698 when all Englishmen were granted the right to trade in slaves. Between 1680 and 1700 some 300,000 negroes were exported from Africa by English merchants.*
The eighteenth century saw England’s rise to dominance. Its greater involvement with the trade ran concurrently with military victory and commercial and imperial expansion. By the Treaty of Utrecht (1713) the asiento or contract for the supply of 4,800 negroes annually to the Spanish colonies was transferred to Great Britain and an English company was thus able to enjoy a monopoly of that trade during the first half of the eighteenth century.
By 1770 British traders were exporting 40,000-60,000 slaves annually. At that time the trade was chiefly carried on from Liverpool. In 1776, the year America declared independence, 192 slave ships sailed from English ports. At the end of the century more than half the trade was British. Of 72,000 slaves exported in 1790, 38,000 were transported by British traders, the balance being shipped by French, Portuguese, Dutch and Danish in that order.
Once a ship was loaded with its slave cargo, it embarked upon the ‘Middle Passage’ to Brazil or the Carribean. The ships in which the slaves were taken to America or the West Indies averaged 150 tonnes. Each ship carried 600 slaves who were chained to shelves below deck during the voyage. “Packed in the holds of the galleys, one above the other, the slaves were given no more than four or five feet in length and two or three feet in height so that neither could lie at full length nor sit upright. They were chained, right hand to left leg, and attached in rows to long iron bars …”.* The death rate varied from 19-20 per cent.. The profit on each slave was 2 or 3 pounds. On arrival the slaves were auctioned. Then followed the ‘seasoning’ which usually lasted 12 months or so in which Africans either survived the diseases or died.* About one third died in the ‘seasoning’.* There was thus a very high death toll. In Jamaica, for example, there were 40,000 slaves in 1690. From then until 1820, 800,000 slaves were imported and yet in that year only 340,000 remained on the island.
The apogee of the slave trade was reached in the last half of the eighteenth century. “The numbers were so high that the sugar economy amassed fortunes and planters found it cheaper to work slaves furiously and buy replacements for the many who died, rather than encourage natural reproduction. Life expectancy was very short.*
Spanish and Portugese colonial slavery was not less cruel than North American or British protestant. Indeed, suffering on a Cuban sugar plantation was far worse than that that from working on an American tobacco field.
But in most places in Latin America a slave could own property and husbands and wives could not be separated. It was possible for a slave to buy his own freedom. In North America the approach was more rigid. It would seem that the protestant mind could not accept any gradation between the status of a person and the status of property, to which a slave belonged (2).*
The trade continued to expand. It is estimated that between 1680 and 1786 the total number of slaves exported into all British colonies in America and the West Indies was a staggering 2,130,000.*
When its nature became known in England the trade was denounced by a wide range of people. Included were writers such as Steele and Pope. John Wesley published is ‘Thoughts on Slavery’ in 1774. Of them all it was the Quakers who were the earliest to take positive action.
By a remarkable coincidence the growth of the Society of Friends was closely tied to Britain’s expansion into the North Atlantic and the Carribean and thus directly or indirectly in the slave trade. As it happened, William Penn’s father was granted Pennsylvania by the Crown in 1655 largely in satisfaction of the Duke of York’s indebtedness to him and it became a base for Quakers as did Rhode Island.
The Quakers did not then oppose slavery. The prosperity in the Carribean depended upon slave labour. William Penn owned slaves. Quaker masters may have been more humane but that was all. In 1657 George Fox visited America and in his ‘To Friends beyond the Seas that have Black and Indian Slaves’, he preached mercy and brotherhood but there seems no doubt that Fox accepted slavery as an institution.*
For a century Quakerism in America went through agonies of indecision and procrastination. Quakers inevitably approached the position differently from other sects. The doctrine of the Inner Light not only presupposed spiritual equality but also provided a criterion of judgement which differed from accepted convention, custom and practice. The Quaker refusal to take part in war was an example of this divergence.
As early as 1676, the Quaker, William Edmundson, who had accompanied Fox to the Barbados, sent a general letter to Quakers in slave holding colonies. In it he argued that slave holding and spiritual equality were incompatible. ‘Negroes were slaves to sin because they were slaves’. This inverted the conventional christian explanation of slavery - that slaves were in bondage because they were sinners.*
It is to be noted that the Quakers who first spoke out had, like Edmundson, been imprisoned. An example of this was that of the Dutch-speaking Quakers who had emigrated to Germantown. In 1688 they printed an anti-slavery Petition in which they compared the suffering of slaves with their own suffering as a result of religious persecution.
In 1685 another Quaker, George Keith, said that slave holders would not gain salvation unless they released their slaves. In 1696 the Philadelphia Yearly Meeting defined the broad principles that would govern Quaker policy for the next half century - Quakers were charged with the moral welfare of their slaves but that did not affect the property rights and did not conflict with religious purity. However, whilst it was permissible to purchase slaves for private use, the Meeting was opposed to trading in negroes as a business.
During the next half century Quakers were uneasy on the subject. Those in America opposing slavery tended to become isolated. However, the London Yearly Meeting spoke against the slave trade in 1715, 1720 and 1727. In 1730 the Philadelphia meeting advised Friends not to purchase negroes imported by others.
In many ways the mid-eighteenth century was not the best of times to seek abolition of slavery or the slave trade. Notwithstanding the advice given by Meetings against the purchase of slaves, there had not been any distinct move towards abolition. In 1754, however, John Woolman had prepared the Letter sent out by the Philadelphia Yearly Meeting which expressed concern at Quaker involvement in slavery. The change in Quaker attitude came about quite suddenly. In 1756 the Society required, for the first time, slave owners to provide religious instruction. In 1757, the London Yearly Meeting, alarmed at the involvement of Friends in the slave trade appointed a committee to investigate the problem. In 1758, influenced by Woolman, the Philadelphia Yearly Meeting altered its traditional policy so that henceforth all members who bought or sold negroes were to be excluded from business meetings or from making financial contributions to the Society. In 1760 New England Quakers made the importation of slaves an offence subject to discipline.
One factor leading to the sudden change was the Seven Year War. The Quakers refused to participate. They became isolated from the ‘establishment’ and were confronted with the tension between the demands of the State and their own private morality. But it was also due to the personal influence of John Woolman and Anthony Benezet.[This incomplete description of the Anti-slavery movement possibly understates the part played by Anthony Benezet.Not only did he do much to persuade his fellow Quakers of the evils of slavery but his work on the slave trade, published in 1771, had a wider influence. Indeed it was this book, coming by chance into the hands of Thomas Clarkson,which enabled him to draw upon it for his successful contribution to the Essay Competition, which had a profound impact upon public opinion.] As Davis says of Woolman, ‘if the western world became more receptive to anti-slavery thought between the time when Woolman left for North Carolina in 1746 and when he arrived in England in 1772, the self-effacing Quaker was a major instrument of the transformation’.*
It is necessary to remember that the entire process of abolition went through a number of stages: (a) elimination of slavery in Great Britain itself; (b) abolition of the slave trade, first, from British ports and by British traders; (c) the barring of slavery within the British dominions, which was not achieved until 1833, and finally (d) the barring of slavery in other countries and in their dominions.
Abolition of slavery within England was achieved in the Courts in the case of James Somersett. Planters had begun bringing their domestic slaves with them to England and this excited opposition. Somersett was an African slave held in irons on board a ship bound for Jamaica lying in the Thames. Granville Sharp a prominent opponent of slavery took up his cause.* Somersett sought habeas corpus. This was resisted by his master. To secure habeas corpus meant successfully challenging an Opinion given by the Attorney-General in 1729 to the effect that if a slave were brought into England his or her status would be recognised by English law. On the 22 June 1772, the Lord Chief Justice, Lord Mansfield, speaking for the entire bench, granted habeas corpus. In doing so he said that ‘slavery … is so odious, that nothing can be suffered to support it but positive law. Whatever inconveniences may follow from the decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharged.’ Hargraves, Sommersett’s counsel, had been faced with an argument that slavery could be justified by the law of nature. To this he replied, adopting Locke’s reasoning, that contract could not be the origin of slavery because no man could divest himself of his right to life or personal freedom.*
The slave trade continued unabated. Hugh Thomas in The Slave Trade described the economic importance of the trade during the period we are discussing: “At that time, a quarter of the ships in Liverpool were probably engaged in the African trade. The city had five-eighths of the African trade of Britain and three-sevenths of the European; in 1792, the tonnage engaged in slaving would have been far greater than it had been in 1752. In the years 1783-93, about 360 firms of Liverpool had engaged in the trade in one way or another. William Gregson, with a part share of six slavers in 1791 - a formidable figure in Liverpool politics, an ex-mayor, owner of the brutal Captain Collingwood’s slave ship, Zong - made the patriot’s point: ‘whenever it is abolished, the naval importance of this kingdom is abolish’d with it.’”*
In 1783 public opposition to the slave trade itself was aroused by the case of the slaveship Zong. The ship with 442 slaves had lost its way. With water short the master Collingwood explained to his crew that if the slaves died naturally from thirst the loss would lie on the shipowner but if, on some pretext such as ‘safety of the crew’ they had to be thrown into the sea to drown, the loss would fall on the underwriters. And so 133 slaves were thrown into the sea.*
In the same year, the Quakers, who had in 1758 first condemned slavery in England, founded an association ‘for the relief and the liberation of the Negro slaves in the West Indies, and the discouragement of the slave trade on the coast of Africa.’ This was the first society established in England for the purpose of combating the slave trade. Dr. Peckard, Vice-Chancellor of Cambridge, who held strong views against the trade proposed that a prize be awarded for an essay on the subject. The prize was won by Clarkson. In the following year he gave his essay to a Quaker bookshop owner, James Phillips, who published it under the title ‘Essay on the slavery and commerce of the human species’. Phillips introduced him to Granville Sharp and others who were concerned. Together, on 22 May 1787, they formed a committee for the abolition of the slave trade, most of whom were Quakers. It became the chief agency for action and had the support of Pitt. On 12 May 1787 Wilberforce had brought forward the first of many motions on the slave trade in the House. It was defeated. Alderman Newnham declared that to abolish the trade would ‘render the City of London one scene of bankruptcy and ruin’. In 1791 Wilberforce’s second motion (which sought the introduction of a Bill prohibiting the further importation of slaves into the British colonies in the West Indies) was again defeated. Legislative sanction was however given to the formation of the Sierra Leone company to establish a colony there for repatriated slaves and to discourage the slave trade. On the 16th March 1792 King Christian VII of Denmark issued a decree forbidding any Danish subject from taking part in the trade after 1 January 1803, and thus Denmark became the first country to ban the trade. Also in 1792, after a magnificent speech by Pitt, the House of Commons accepted a resolution that the trade should be abolished in stages. The resolution was, however, deferred in the Lords. England was now at war with France. Nevertheless, Wilberforce persisted. In 1795 he would have secured passage of a private bill prohibiting the supply of foreign slaves by English merchants had not twelve of his supporters gone to the opera. Efforts by the abolitionists continued during the next few years but met with little success.
In 1806, Lord Grenville and Fox, having come to power, introduced a Bill which passed both Houses putting an end to British traders engaging in the foreign supply of slaves and prohibiting the importation of slaves into colonies won by Britain during the Napoleonic wars. Finally, an Act prohibited the departure of any vessel for slaves from any port within the British dominions after 1 May 1807. It also enacted that no slave should be landed in British colonies after 1 May 1808. ‘The final debate was remarkable for an elegant comparison by Sir Samuel Romilly between Napoleon and Wilberforce; at the end of it, the whole House rose to give the latter unprecedented applause. He deserved it: Wilberforce’s achievement is one of the most remarkable examples of the triumph of an individual statesman on a philanthropic issue.’*
The Act of 1807 was however habitually disregarded by traders. They knew that if one voyage in three was successful they would be sufficiently renumerated for their loss. The purely pecuniary penalties for the offence were futile. It was not until Brougham carried a Bill through the Parliament in 1811 subjecting offenders to transportation, that the slave trade to the British dominions was finally extinguished.
The prohibition upon British ships engaging in the trade only gave foreign slave traders an advantage. British cruisers began to intercept foreign ships partly to get the ‘prize’ of the slave ship but also to prevent the trade. To avoid this the foreign traders carried as many slaves as possible on each voyage and engaged in atrocities to get rid of the slaves when capture seemed imminent. It was estimated that three times as many negroes as before were exported from Africa during this period and that two thirds of these died or were murdered on the High Seas. It was thus imperative to induce other countries to ban the trade.
At about the same time as that of Great Britain, the United States took legislative action. In his 1806 Message to Congress, Jefferson asked to have a Bill banning the trade passed. The debate was acrimonious. Eventually the Bill was enacted, coming into force on the 1st January 1808, in accordance with limitations in the Constitution.* The Act imposed a fine of $20,000 and forfeiture of the vessel on any one equipping a slave ship and a fine of $1000 to $10,000, with imprisonment for 5 to 10 years, for anyone transporting or selling slaves on the Atlantic. But punishment of convicted traders was left to individual States. The law was only irregularly enforced. It reduced the trade but some 10,000 to 20,000 slaves a year made the awful Atlantic crossing and were smuggled into the South before the Civil War (3).*
At the Congress of Vienna (Nov. 1814), the British Foreign Minister, Lord Castlereagh, set about inducing other nations to ban the trade. He himself had come to regard it as a great evil. He was friendly with Wilberforce and throughout the negotiations was in close contact with him. He was also no doubt greatly influenced by the British public whose petitions against the trade poured into both Houses of Parliament. Even the Duke of Wellington referred to the ‘indescribable degree of frenzy existing’. Against that background Castlereagh carried on his negotiations.
Castlereagh’s final achievement at the Conference was to secure a formal Declaration agreed to by all the powers condemning the institution as inhuman, although it did not prescribe when nations were to abolish the slave trade in which they were currently engaged.
The Dutch were persuaded to stop the trade by the cession of the East Indies (1814). Sweden had previously done so (1813), having been given handsome compensation for Guadaloupe. Spain and Portugal were to prove more difficult. Nevertheless, Portugal agreed, in January 1815, to prohibit the trade north of the equator and to prohibit it elsewhere by 1823. For this the British Government paid Portugal 300,000 pounds. The prohibition was extended into the 1830’s and was imperfectly enforced leading to coercive action being taken by the British navy against Portuguese slave vessels trading with Brazil.
The Emperor of Brazil, Dom Pedro II, was personally very much opposed to slavery and finally declared that he would rather lose his Crown than that slavery should continue. It was abolished on the 13th May 1888.The plantation owners thereupon rose against Dom Pedro who was exiled to Europe, dying two years later in a second rate Paris hotel.
In 1817 a Treaty was signed with Spain under which she too agreed to abolish the slave trade north of the equator and to suppress it totally by 30 May 1820. The British Government paid Spain 400,000 pounds.
We have not so far mentioned France.
Voltaire mocked the slave traders in Candide and in his play Scarmentado (1756). In the play, a European slave owner is seized by slaves together with his crew. The captain demands to know on what grounds he has been treated in this way. The African slave leader replies: ‘You have long noses, we have flat ones: your hair is straight while ours is curly; your skins are white, ours are black.’
Enlightenment thought joined in condemning slavery: Montesquieu in L’Esprit des Lois; Diderot in the Encyclopaedia and Rousseau in The Social Contract.*
In 1788 the ‘Societe des amis des noirs’ was formed in Paris for the abolition not only of the slave trade but of slavery itself. Condorcet was the first President. The formation of associations by like-minded humanitarians was thus, in France, as in England, the first step in the abolitionist movement, although as the Brittanica comments ‘the great motor of the parallel effort in England was the Christian spirit in France it was the enthusiasm for humanity’.
In August 1789 the Declaration of the Rights of Man, embodied the right of ‘natural liberty’, a right contradicting slavery. Such a construction of the Declaration was accepted by the mulattoes who were members of a delegation from San Domingo (modern Haiti), and who had come to Paris to press their cause.
In March 1790, alarmed at the discontent among the planters of San Domingo and recalling that the Declaration had also guaranteed the right of property, the Assembly passed a resolution affirming that the Declaration was not intended to apply to the colonies, or at least, to their internal affairs.
Vincent Ogé, one of the mulatto delegates from San Domingo to Paris, was disgusted. He took up arms against the authorities in San Domingo but was defeated and at his trial was sentenced to be broken on the wheel. This cruelty led to a strong reaction in Paris against the planters. The Abbé Gregoire, who was a member of the ‘Societé des amis des noirs’, secured a resolution in the Assembly that all coloured residents of the colonies ‘born of free parents’ were entitled to all the privileges of French citizens. This failed to still the discontent among the negroes of San Domingo. On the 23rd August 1791 they rose in rebellion against the French and, after a struggle, ejected them and by 1798 put an end to slavery.
In May 1814, France and England agreed, in the Treaty of Peace following Napoleon’s abdication, that France would cease participation in the slave trade altogether. It would seem that Louis XVIII and Talleyrand were genuine enough but in endeavouring to carry this agreement into effect they were up against a strongly antagonistic public opinion. Negotiations were thereafter carried on by the Duke of Wellington who was acting Ambassador in Paris during this period. He corresponded with Wilberforce. These negotiations were cut short upon Napoleon’s escape from Elba.
One of Napoleons’ first acts upon reaching Paris was to abolish the slave trade engaged in with all French dominions. On regaining the throne after the 100 days, Louis felt obliged to adhere to this.*
By about 1820 therefore the slave trade was widely prohibited, although still practised on a limited scale. That was bound to continue so long as slavery was allowed in the colonies and dominions of the colonial powers and in America.
Wilberforce took up this cause in the case of Britain. He himself was ageing and so in 1821 he appealed to Thomas Buxton to press in Parliament for abolition of slavery in the British dominions. An anti-slavery movement was formed. Besides Wilberforce and Buxton the chief members were Zachary Macaulay, Dr. Lushington and Lord Suffolk. Their persistence was rewarded, when Canning, who succeeded Castlereagh, whilst not adopting the Society’s precise program, proposed a series of reforms to colonial legislators. In the colonies the planters raised an outcry. This produced the opposite reaction in England. The move for abolition within the colonies made slow progress. The Government temporised. In 1828 free coloured peoples in the colonies were given equality. The Government continued to hesitate and press only for mitigation of the existing slave system. The struggle continued with members such as Buxton, Brougham, and Macaulay, prominent. Eventually, Earl Grey took the decisive step and introduced Abolition into the Parliament. It was passed and received the Royal assent on the 28 August 1833. Wilberforce had died a month before. He knew on his deathbed that his long battle had been won. ‘Thank God’ he said ‘that I should have lived to witness this day’.* 20 million pounds was voted to be paid to the planters as compensation.*
Abolition was, in the words of the historian, W.E.H. Lecky, “among the three or four virtuous acts recorded in the history of nations”.
The example of Great Britain was followed elsewhere. In 1848, the provisional Government of France decreed immediate emancipation of slaves in all the French colonies. In 1853 the Dutch commenced emancipation of slaves within their possessions. In 1858 it was enacted that every slave belonging to a Portugese subject should be freed within 20 years and from 29 April 1878 slavery became illegal throughout Portugese possessions.
Certain of the Spanish American States had abolished slavery upon declaring their independence from Spain. The Government of Buenos Aires enacted that all children of slaves after the 31 January 1813 should be free. In Colombia those born after 16 July 1821 were to be liberated upon attaining 18. Mexico ended slavery on 15 September 1829.
Only in the Southern United States, Brazil (and, as mentioned, it was abolished in Brazil on the 13th May 1888) and Cuba was slavery allowable after 1860.
The population of the slave States in America on the eve of the civil war in 1860 was 8,098,000 of whom 4,204,000 were negro. There were 385,000 slave-holders. Of these the 46,000 who owned more than 20 slaves, were known as planters.
It is necessary to go back in order to see how the ‘peculiar institution’, as slavery was described, came to thrive in the South.*
The Declaration of Independence said, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.’
The Declaration’s author left 200 slaves at his death. Not just Jefferson but George Washington, the first President, James Madison, who drafted the Bill of Rights, Patrick Henry and James Monroe were all slave holders. Slave holders occupied the Presidency for 32 of the first 36 years of the Republic. How was this? Did this departure from the Enlightenment ideal reveal sheer hypocrisy? Samuel Johnson, who always opposed the American Revolution thought so. ‘How is it that we hear the latest yelps for liberty from the drivers of negroes?’.
It is not only a matter of explaining personal motives. The question raised by the apparent inconsistency concerns the part played by Enlightenment ideals in the abolition of slavery.
A deletion from the original draft of the Declaration provides an initial clue. Jefferson had included an indictment of George III for his refusal to end the slave trade accusing him of waging ‘a cruel war against nature’ and of perpetuating an ‘execrable commerce’. This passage was deleted upon the insistence of Georgia and South Carolina.
Conflicting attitudes were evident in the Constitution (1787) itself. Slavery was not mentioned nor were slaves but certain provisions dealt with negro servitude. Article 1 Sect. 9 prohibited Congress from interfering with the importation of Africans before 1808. This prohibition upon the banning of the slave trade was a concession to Southern States. Article 4 sect.2 provided in effect for the return of fugitive slaves. In 1793 Congress enacted a fugitive slave law which provided that fugitive slaves escaping from one State might be seized by their master in another.
A major consideration, as these examples show, was simply the preservation of the Union. It must have seemed that if there were to be no slavery there could be no Union.
On the other hand the ambiguity in attitudes was shown by the support of both Southern and Northern delegates at the Confederation Conference for the Ordinance banning slavery in the North-West Territory. Also, as we have seen, both North and South eventually joined to support Jefferson’s Bill of 1807 banning the importation of slaves.
A further reason for equivocation and procrastinating any decision was the belief that slavery was withering away. Vermont, Pennsylvania, Massachusetts, Rhode Island, Connecticut and New York all abolished slavery in the last years of the eighteenth century or early nineteenth century. In 1804 New Jersey became the last state north of Maryland to abolish slavery within its borders. It is reasonable to suppose that Jefferson held to the belief that slavery would fade away, as late as the signing into law by him of the International Slave Trade Abolition Bill on 1 January 1808. He then wrote of the possibility of ‘total emancipation … to be with the consent of the masters’.*
No doubt, in addition, these slave holders found it difficult to contemplate giving up their leisured life on the plantations. George Washington came to have strong misgivings about slavery but only in his Will did he make directions about the freedom of his slaves. In it he expressed his desire that the slaves might be freed on the death of his wife (in the result, Martha Washington freed 125 slaves a year after Washington’s death).
We cannot know what would have happened in the South had economic conditions remained the same and the demand for slave labour remained unaltered.
In June 1793 an event occurred which transformed the situation. Eli Whitney sought to patent his Cotton Gin. Jefferson was Inspector of Patents as well as being Secretary for State. He was intrigued. The Gin enabled seeds from the cotton to be removed while leaving the fibre intact. Before Whitney’s invention, short-staple cotton could not be grown for profit because of the labour needed to filter out the seeds. But, in 1795, the first year of the Cotton Gin’s operation, American planters produced 8 million pounds of cotton. ‘By 1800, production increased by 400%, fuelling the demand for labour’.* Only in the South was there any area with abundant rainfall and sufficient frost free days necessary for cotton production.
Thereafter there was no question of slavery fading away in the South. Cotton created a plantation boom first in South Carolina and then in Georgia. By 1830 the slave population of the United States had risen to two million, all of them in the Southern States.
Those in the South who were troubled by the inconsistency of slavery with the Enlightenment ideals embodied in the Declaration of Independence turned increasingly to colonies of free slaves. Madison, in particular, argued that if free blacks remained in America the divided society would never be at peace.* Jefferson, still morally baffled, late in life wrote ‘Justice is in one scale and self-preservation in the other’.*
The Enlightenment ideal was thus crippled in the South by economic self-interest. That did not prevent the Declaration of Independence becoming part of the American creed but in the ante-bellum South the force that did most to bring whites and blacks together at this time was evangelicalism.
In 1800 nearly one third of all Methodists in the united States were negro. The churches that the early Baptists and Methodists formed were ‘close knit bi-racial communities’. Often black church members outnumbered whites. Blacks preached to whites. “Black and white embraced each other as ‘brothers’ and ‘sisters’ in Christ. Being ‘born again’ elevated all believers to a common level.”*
As the plantation boom continued, Alabama and Mississippi entered the Union as slave States. By 1819, the Union comprised 11 free States and 11 slave States, divided by the Mason and Dixon line.
The application of Missouri to become a State of the Union brought matters to a head. Missouri lay across a line that divided free and slave States. During its ‘territorial’ period its citizens had been allowed by Congress to hold slaves and they expected this to continue after Missouri’s admission to the Union.* This became the issue.
Art. 1V, section 3, of the Constitution provided that ‘new States may be admitted by the Congress into the Union’. Could Congress admit a State to the Union subject to a condition that it abolished slavery? The dispute was resolved for a time by what became known as the Missouri Compromise. Missouri was admitted as a slave holding State but slavery was prohibited within the existing territories north of a given line of latitude. Maine was admitted as a State at the same time, thus making the free and slave States twelve each.
By the 1830’s, the North, which had itself renounced slavery, was increasingly influenced by the abolitionist movement in England. The opposition to slavery quickened. A vigorous, campaign was carried on by William Lloyd Harrison in his Boston newspaper, ‘The Liberator’. The divergence between slave and non-slave States widened. History contrived to force a final breach. Perhaps, as Lincoln said in his Presidential campaign, the Union had to become one or the other. It could not remain slave and non-slave. In 1852 Harriet Beecher Stowe published, ‘Uncle Tom’s Cabin’. This had a most powerful effect on public opinion on both sides of the Atlantic. Winston Churchill explains this as follows:
‘Her work was frankly propagandist; she used every weapon. In its pages the theoretical arguments are bandied to and fro, but there was one method in which she excelled all other assailants of the evil. She presented to her readers a succession of simple, poignant incidents inseparable from a system of slavery: the breaking up of the negroes’ home and family, the parting of husband and wife, the sale of the baby from the breast of its mother; the indiscriminate auction of the slaves on the death of a good employer; the impotence of the virtuous slave-owner, the cruelties of the bad; the callous traffic of the slave-dealers, the horrors of the remote plantations, the whipping establishments to which fine ladies sent their maids for chastisement for minor faults, the aggravated problem of the quadroon and the mulattoe; the almost white slave-girl sold and re-sold for lust… such advocacy was devastating’. By the end of the year hundreds of thousands of copies of the book had been sold in the United States. By the end of 1852 more that a million copies had been sold in England. *
Event followed event, each exacerbating the quarrel. The Kansas Nebraska Act saw an attempt in Congress to move the slavery - anti-slavery line north of that which had been agreed upon by the Missouri compromise. Then followed the Dred Scott decision of the Supreme Court of the United States in March 1857.
Dred Scott, a slave, resident in Missouri was taken by his then master to the free State of Illinois and thence to the Federal Wisconsin Territory. His master returned with him to Missouri. After some years Scott brought action for his freedom in the courts of Missouri. He failed there and subsequently in the Supreme Court. The Supreme Court held that Congress lacked constitutional power to interfere with the property of United States citizens. Slaves were property. The purported attempt to deny this in the Missouri Compromise was unconstitutional.*
The decision provoked a storm in the North. Not only did it invalidate the Missouri Compromise but the Republican Party, which had based its program on opposing the spread of slavery to the Territories, saw the program in effect declared unconstitutional.
Lincoln was elected President on 6 November 1860. He was not inaugurated until 4 March 1861. As Churchill described it, ‘for four months the dying Administration gaped upon a distracted land’. On 20 December the State of South Carolina declared its secession from the Union. Next day Mississippi, Florida, Alabama, Georgia, Louisiana and Texas followed suit. In February 1861, these States, other than Texas, formed a new Confederacy. Jefferson Davis was chosen President.
Lincoln had opposed slavery, but now, on his inauguration, he was conciliatory. His first duty was to preserve the Union. He said that ‘he had no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists’.
On the 14 April President Davis demanded the surrender of the Union force at Fort Sumter. When the demand was rejected the Fort was bombarded. The American civil war had begun.
President Lincoln’s proclamation emancipating the slaves took effect on the first of January 1863. It was by no means such an easy step as may be supposed. Certain border States, which were slave owning, had remained loyal to the Union, and Lincoln justifiably feared the effect of the Proclamation upon their continued loyalty. Of even greater importance were the grave doubts as to his constitutional power. It was for this reason that the Proclamation was expressed as having been given by ‘virtue of the power in me vested as commander-in-chief of the Army and Navy of the United States’ and extended only to the States in rebellion. Nevertheless, it was done and Lincoln declared all slaves in those states ‘are, and henceforward, shall be free’.
Hugh Brogan in the ‘Penguin History of America’ describes the occasion and its aftermath as follows: “On the afternoon of New Years Day, 1863, Lincoln signed the final Emancipation Proclamation, confident that he could make it stick. At first his hand trembled so much that he definitely had difficulty in writing. He had a superstitious pang, and then remembered that he had been shaking hands all morning with the crowd that had poured into the White House, according to custom, to wish him Happy New Year. He laughed, pulled himself together and wrote his name firmly.
In Boston two great public meetings were waiting for the news - one mainly white, at the Music Hall, the other, mainly black, at Tremont singing at the Temple. When the news came by telegraph Fredrick Douglass led the singing at the Temple; at the Music Hall the crowd shouted for Mrs Stowe, and before them all she bowed and wept for joy. The abolitionist cause was vindicated… In Washington a crowd of both races gathered outside the White House to cheer the President.”
With the defeat of the South, slavery was in effect finished in the United States. In order to implement abolition entirely a constitutional amendment was required. The thirteenth Amendment came into operation after Lincoln’s assassination, prohibiting slavery throughout the Union.
Although a bloody contest signalled the end of slavery it was the humanitarians in both Europe and America that had made its continuance morally impossible.
(1) The cruelty of the Atlantic Slave Trade: “Packed in the holds of the galleys, one above the other, the slaves were given no more than four or five feet in length and two or three feet in height so that neither could lie at full length nor sit upright. They were chained, right hand to left leg, and attached in rows to long iron bars…”. ‘The Black Jacobins’, C.L.R. James, quoted, Rex Harris, Jazz, Pelican, p.19.
(2) Latin and North American slavery: There were differences between Latin American and British protestant slavery. It was not so much a difference in cruelty. The Spanish, Portugese and French planter would dominate his slaves at their work just as brutally as his British or Dutch counterpart. The difference lay rather in the degree of privacy and the extent of freedom outside their work. A British protestant slave owner would typically hold a smaller number of slaves. These were closer to him and to his family. They were allowed no liberty even outside their work. In particular the protestant slave owner would want them to become converted. This though created a problem that upon conversion the slave could claim to be a ‘free christian’. The colony of Virginia solved this problem when, in 1687, it decreed that ‘baptism doth not alter the condition of the person as to his bondage or freedom’. An issue such as this did not arise in the Latin American colonies. The planters simply assumed that, according to the Code Noir, slaves remained slaves whether or not they became christians.
There are perhaps a number of explanations for this. The Spanish Crown retained a firmer grip over the conquistadores and then the planters, through its appointees to the colonies who regulated directly the treatment of slaves and Indian affairs. In Virginia – which illustrates the contrast – the English Crown virtually abandoned any direct control to the trading companies as early as the 17th century. Its only concern was the amount of profits. Moreover in the Latin American colonies, the Church retained a pervasive influence. Thus, in Cuba, in 1778, there were 1063 priests – 1 for 468 of the coloured population, whilst in Virginia there was no Anglican Bishop and the number of ministers was 104, or 1 for 4298 of the negro population.
The Church insisted that all catholics had the same right to learn to read and write. In Virginia the code prohibited the education of slaves.
A marked difference also applied to the freeing of slaves. In 1860, Cuba and Virginia had a comparable population of negro slaves. In Cuba, the population comprised 213,167 freed slaves, in Virginia the number was 58,042. Caste and Race, C.I.B.A. Foundation Blue Print.
(3) The cruelty of slavery in America: The chattel character of the slave in the Southern States was clear. The Civil Code of Louisiana was typical. It provided that ‘a slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry, and his labour. He can do nothing, possess nothing, nor acquire anything, but what must belong to his master’. The South Carolina Code provided that ‘slaves shall be deemed sold, taken, reputed, and adjudged in law to be chattels personal, in the hands of their owners and possessors …’. A slave could be mortgaged, seized to pay debts or pawned. The slaves were thus property. Henry Clay, in an anti-abolitionist speech in the U.S. Senate in 1839 based his entire argument upon the proposition that abolition would extinguish 1200 million dollars worth of slave property.
It was understandable, with such a legal background, that slaves should be treated quite literally in the same way as animals. Thus they were referred to as ‘stock’; a mature female would be referred to as a ‘breeder’ and the issue of female slaves was considered the property of her master in the same way as the foal of an owner’s mare. At slave sales negro women were advertised for sale ‘with children or separately, as desired’. A slave could not marry because a slave could not contract.
Slaves were provided with slight protection by the criminal law of the Southern States. The Constitution of Georgia (Art. 4, Sect. 12) provided for criminal liability in the case of the murder of a slave ‘unless such death should happen by accident in giving such slave moderate correction’. In South Carolina, an Act of 1740 provided that ‘in case any person shall wilfully cut out the tongue, put out the eye, castrate, or cruelly scald, burn, or deprive any slave of any limb or member, or shall inflict any other cruel punishment, other than whipping or beating with a horsewhip, cowskin, switch or small stick or by putting irons on, or confining or imprisoning such slave, every such person shall for every such offence, forfeit the sum of 100 pounds, current money’.
Education of slaves was mostly forbidden in the Southern States. Writing his ‘Political Economy’ during the Civil War, John Stuart Mill said that ‘the intelligence of the slaves (is) a source of so much dread to the masters, that in some of the States of America, it is a highly penal offence to teach a slave to read’. (p.152 of the 1873 edition.)
This was indeed the case. Thus Mr Berry, addressing the House of Delegates, of which he was a member, in Virginia in 1832, said:
“We have, as far as possible, closed every avenue by which light might enter their (the slaves’) minds. If we could extinguish the capacity to see the light, our work would then be completed; they would then be on a level with the beast of the field and we should be safe.” See Rex Harris, The Slave Code, in ‘Jazz’ 4th edit. Pelican, 1956, p.25.
* H. Thomas, The Slave Trade, 1997, Papermac, p.21.
* In northern Europe, slavery merged with serfdom. It withered away. In England this was substantially true by about the eleventh century. As for France, see Marc Bloch, Feudal Society, p.260. But slavery survived in Spain and in other parts of the Mediterranean. It also moved in the other direction. In the ninth century, when Venice was expanding its trading links, ‘the most valuable traffic was in men, women and children shipped to Alexandria where there was a ready slave market’, Plumb, The Penguin of the Renaissance, Penguin, pp.18-19.
* Oliver and Fage, A Short History of Africa, Penguin African Library, p.110.
* Las Casas recognised the mistake he had made in basing his suggestion on the African’s greater physical capacity.
* Oliver and Fage, op. cit. p.120.
* H. Thomas, op. cit. p.148.
* H. Thomas pp.132-135,148.
* Oliver and Fage, p.120.
* Johnson & Smith, Africans in America (1998), Harcourt Brace, p.12.
* Johnson, Africans in America, Harcourt Brace, pp.39-40.
* Microsoft Encarta 1996.
* H. de B. Gibbins, English Social Reformers, Methuen (1892), p.100.
* C.L.R. James, The Black Jacobins.
* See Encyc. Britt. 1994-1998, Africans – Process of Enslavement.
* See Encyc. Britt. 1958, Africans – Process of enslavement.
* Stephen Hahn, Professor of American History, University of Pensylvania, A Revised History of the Slave Trade, Le Monde Diplomatique, May 2006, p.8.
* Contra this, David Brion Davis in The Problem of Slavery in Western Culture argues that the distinction between Latin and North American slavery has been overdrawn (see chapter 8, p.223) although he said it is ‘incontestable’ that slaves in Latin America had more opportunities for manumission than did those in the British colonies or the United States p.262. On the whole though it seems that the broad distinction can be made.
* This figure was apparently first calculated by the pro-slavery apologist Bryan Edwards (1791), see Encyc. Britt. 1958 Vol.20 p.780; see D’Souza, The End of Racism, The Free Press, p.115.
* Davis, op. cit., p.303.
* See Davis op. cit. generally pp.299-332 and esp. p.307.
* p.489. “The eight years that intervened between Woolman’s southern trip and the publication of his first anti-slavery tract represented a turning point in the history of Western culture. To both religious and secular writers the period brought an almost explosive consciousness of man’s freedom to shape the world in accordance with his own will and reason. And as the dogmas and restraints of the past lost their compelling force, there was a heightened concern for discovering laws and principles that would enable human society to be something more than an endless contest of greed and power. This quest for moral assurance led inevitably to examinations of inequality, sovereignty and servitude. Two years after Woolman’s trip, Montesquieu’s L’Esprit des Lois demolished the traditional justifications for slavery, and placed the subject on the agenda of the French Enlightenment. In 1752 James Foster’s discourses judged the institution by the ethics of latitudinarian theology, and David Hume focused attention on the relation of slavery to population growth. The year 1755 saw the appearance of Hutcheson’s System of Moral Philosophy, Rousseau’s Discours sur L’Inégalité, …”
* See, Sources of English Constitutional History, Harper Historical Series, Harper & Brothers, p.10. A somewhat different account is given by H. de B. Gibbins, op.cit., p.100. The former authority is to be preferred.
* See Vinogradoff, Commonsense and the Law, The Home University Library, p.240.
* H. Thomas, op. cit., p.514.
* H. Thomas, op. cit., p.488.
* H. Thomas, op. cit., p.555.
* See infra.
* Fawn M Brodie, Thomas Jefferson, Eyre Methuen, 1974, p.424.
* H. Thomas, op. cit., p.462.
* The French situation was confusing. In 1794 the Convention voted to abolish slavery but in 1802 Napoleon exempted the colonies from metropolitan legislation. In 1814 the slave trade with the French dominions was abolished. In 1848 slavery in the French dominions was abolished.
* It had been passed by Parliament on the 26th July 1833, Wilberforce died on the following Monday, H de B. Gibbins, op.cit. p.106.
* H de B. Gibbins, op.cit. conveniently summarises the history in a footnote at page 104:-
“1787, Association for the abolition of slavery formed;1789, Wilberforce, Fox and Burke in Parliament support resolutions against the slave trade;1791, Wilberforce’s motion, in the House of Commons for abolition of the slave trade, though supported by Pitt and Fox, was rejected by 163 votes to 88;in 1792 a Bill for the abolition passed in the Commons is postponed by the Lords;1804, Wilberforce’s Abolition Bill passed again by the Commons, but thrown out by the Lords;1806,resolutions in favour of abolition proposed by Fox and Grenville in the Commons, carried; 1807, the Act for the abolition of the slave trade is finally passed. It was not, however, till August 1833 that the Act for the Emancipation of Slaves passed the Lords and became law; and the total abolition, not only of the slave-trade, but of slavery itself, took effect in our colonies on August 1st 1834, when 20 million pounds was paid to the slave-owners.
* “ By the time of the emancipation after the civil war, the US had the largest slave population in the Americas: abut 4 million, more than twice the highest number in Brazil, and…. However, the US (as colonies and nation) imported the fewest slaves, 400,000 – 600,000 compared with 1.6 million into the British Carribean etc. ”North America was distinctive in this not because of its better treatment of the slaves but because the regimes of its crop cultures were generally less taxing and its products fetched lower returns on the international market. Sugar plantations developed only in small sections of the lower Mississippi Valley around New Orleans and on the whole not until after the trade had closed. Slaves otherwise worked in tobacco, wheat and rice fields, where mortality and morbidity rates were lower than in the sugar colonies.”, Stephen Hahn, Professor of American History, A Revised History of the Slave Trade, Le Monde Diplomatique, May 2006, p.8.
* C. Johnson and R. Smith, Africans in America, Harcourt Brace, p.269.
* C. Johnson and R. Smith, op. cit., p.269.
* The inscription on Jefferson’s Memorial in Washington reads ‘Nothing is more certainly written in the book of fate than that these people are to be free.’ Jefferson’s next sentence is omitted from the memorial ‘Nor is it less certain that the two races, equally free cannot live in the same government’.
* Letter to John Holmes, 22 April 1820.
* Benjamin Schwarz, ‘What Jefferson Helps to Explain’, The Atlantic Monthly, March 1997.
* As well as States, the Constitution provided for the inclusion of ‘territories’ within the Union. These entities were subject to substantial federal control.
* Winston S. Churchill, The American Civil War, Corgi, p.33.
* In order to succeed, Scott needed to establish two propositions. First, that he was a ‘citizen’ of Missouri. This was necessary to establish standing to bring action. Secondly, he needed to show that his residence on free soil changed his status to that of a free man.
He failed on both counts. On the first ground, Chief Justice Taney held that ‘the negro was not a citizen in the eyes of the Constitution’ which was made ‘for white men only’. The negroes were ‘so far inferior that they had no rights which the white man was found to respect’. The second ground gave rise to the constitutionality of the Missouri Compromise. It had been given effect, inter alia, by an Act of Congress declaring ‘slavery and involuntary servitude… shall be forever prohibited in all that part of the Territory… which lies north of etc.’ Scott relied upon this Act. The question was whether it was constitutional. To this Chief Justice Taney said: ‘the right of property in a slave is distinctly expressed and affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citzens of the United States, in every State that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words - too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description… it is the opinion of the Court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the Territory of the United States north of the line… is not warranted by the Constitution, and is therefore void; and that neither Dred Scott or his family, were made free by being carried into this Territory…’
In stating that Congress was bound to protect property, Chief Justice Taney was relying upon the Fifth Amendment in the Bill of Rights. This laid down that ‘no person whall be deprived of life, liberty and property without due process of law’ (italics added). The original intent of this provision was to require procedural justice only and not substantive rights such as the right of private property.
Workers who laboured in the mills and factories of nineteenth century England endured harshness of conditions at times barely distinguishable from slavery. Achievement of justice and approximate equality between Labour and Capital were due finally to trade union organisation, parliamentary representation and, in some countries, revolution or the fear of revolution. But for a time the humanitarian movement was the only barrier to the inhumanity suffered by the working class. Broadly this was the situation in England, from 1802, when the Combination Act was passed, until 1848 when the Ten Hour Bill was enacted and about to come into operation. Thereafter, humanitarianism remained - although as a declining influence whilst the working class turned to collective action and revolutionary socialism.
England was the first country to industrialise and it is natural that we should focus attention upon it.
The enclosure movement was the prelude to the industrial revolution. It accelerated in the eighteenth century. Many small farmers and cottagers were too poor to fence their land or survive against larger farms and improved farming. Smallholders increasingly fell into debt, and apart from forcible eviction, many surrendered their holdings. The effect of all this upon English rural life was described by Oliver Goldsmith in ‘The Deserted Village’ written in 1770. His ‘sweet smiling village, loveliest of the lawn’ had disappeared. Instead we see ‘the rich man’s power increase, the poor’s decay’.
“Amidst thy bowers the tyrants hand is seen
And desolation saddens all the green
One only master grasps the whole domain
And half a tillage stints thy smiling plain."
In a general way historians take 1760 as an approximate date for the beginning of the industrial revolution. It was a period of restless invention. In the following decade Hargreaves invented the spinning jenny and Watt the steam engine. This spur to invention was particularly evident in the cotton industry. This culminated in the invention of the water frame spinning machine by Richard Arkwright. It was capable of producing cotton yarn strong enough to serve as a warp and, as a result, the weaving of whole cotton goods became possible for the first time (1769). Arkwright’s water frame was run by water wheels and it was more economical to run dozens of these machines in the one mill. Mechanisation thus began in the cotton trade. Mills became located beside the water from the Pennine streams and then extended to the plains below. For a time handicraft workers fought a losing battle against the mill owners but a code of rigid factory discipline put an end to their easygoing habits. What had once been a scattered home industry became concentrated in the large towns of Lancashire. Arkwright himself was an archetypal figure in all this. He was more than just an inventor. His factories were located throughout England and to supervise them he travelled in a post-chaise driven at top speed.
By 1813 the workers in the mills were of the second and third generation. The mills themselves had become the ‘dark satanic mills’ of Blake’s imagery.
In his work ‘The Condition of Man’, Lewis Mumford described the life of those who worked in the mills: ‘these new mill villages and mill towns, barren of even the dead memories of an older human culture, no other round.. no other outlet than steady, unremitting toil. The operations themselves were repetitive and monotonous; the environment was sordid; the life that was lived in the new centres was empty and barbarous to the last degree. Here the break with the past was complete. People lived and died in sight of the cotton mill in which they spent from fourteen to sixteen hours of their daily life, lived a life without either memory or hope, happy for the crusts that kept them alive or the sleep that brought them the brief solace of dreams.’
Following upon this was the application of coal to iron smelting. This created the Black country in the West Midland shires. Within 40 years the production of iron in Great Britain had increased ten-fold.
The country’s population in 1760 was 6.6 million. It rose to 8.2 million by 1790, then to 12 million by 1820 and, finally, to almost 18 million by 1850. It was inevitable that factories should concentrate the increasing population in the cities and it was to these that the expropriated from Goldsmith’s deserted villages flocked.
Alexis de Tocqueville visited England at about this time and described the cities in his travel journal. His description has been paraphrased by Fernand Braudel: ‘in July 1835 he stayed in Birmingham and went on to Manchester. These were enormous, still unfinished cities, thrown up quickly and badly without any thought of planning… if Birmingham was still quite human, Manchester already seemed a vision of hell. Its population had increased ten-fold between 1760 and 1830, rising from 17,000 to 180,000 inhabitants. Because of land shortages, the factories perched on its hills had 5, 6 or even 12 storeys. Mansions and workers ‘two-up - two-down’ sprawled over all the town higgeldy-piggeldy. There were puddles and mud everywhere: for every paved street there were ten dirty lanes. Men, women and children herded into squalid housing – up to 15 or 16 people might be crammed into a single basement; the 50,000 Irish immigrants were part of a typically wretched sub-proletariat.’*
The industrial revolution did not invent child labour. It did however systematise it. Children went to work soon after their sixth birthday. Orphans and pauper children would be collected from the Parish workhouses of London and Birmingham and sent to the industrial centres of Nottinghamshire and Lancashire. Joseph Bladden, a children’s overseer in a Leicester mill, described his work to the 1833 Factory Commission:
“I used to beat them… I told them I was very sorry after I had done it, but I was forced to do it. The masters expected me to do my work and I could not do mine unless the children did theirs… I’ve seen them fall asleep and continue to perform the motions in their sleep.”*
The use of little boys or girls, sometimes five years old or less, as chimney sweeps had long been exposed. Masters found it cheaper to drive the ‘climbing boys’, as they were called, through the soot-choked chimneys than to use long brushes. Often children were driven up narrow tortuous chimneys by whisps of lighted straw. Long effort was needed to get relief which Parliament refused for 40 years. Writing in his diary in 1875 Shaftsbury said:
“One hundred and two years have elapsed since the good James Hannay brought the brutal necessity before the police, yet in many parts of England and Ireland it still prevails with the full knowledge and consent of all classes.”
The general situation of children before the Act of 1833 was described in a Report by the Inspectors of Factories - ‘the fact that (prior to the 1833 Act) young persons and children were worked all night, all day, or both ad libertum’.
In 1842 a Royal Commission reported on the conditions of women employed in mines:
“One of the most disgusting sights I have seen” said a Commissioner was that of young females dressed like boys in trousers, crawling on all fours with belts around their waists and a chain pressing between their legs, at day pits at Hunshelf Bank and in many small pits near Holmfrith in New Mills.”
Working conditions – hours of labour: Throughout the early nineteenth century the major subject of oppression and bitterness were the hours of work. An inspector of factories, Leonard Horner, reported in December 1841 as follows:
“It is certainly much to be regretted that any class of persons who should toil 12 hours a day, which, including the time for the meals and for going to and returning from their works, amounts, in fact of 14 of the 24 hours… without entering into the question of health, no one will hesitate, I think, to admit that, in a moral point of view so entire an absorption of the time of the working classes without intermission, from the early age of 13, and in trades not subject to restriction, much younger, must be extremely prejudicial and is an evil greatly to be deplored. For the sake, therefore, of public morals, of bringing up an orderly population, and of giving the great body of the people a reasonable enjoyment of life, it is much to be desired that in all trades some portion of the working day should be reserved for rest and leisure.”
The working classes responded to these oppressive conditions but, in the early nineteenth century, their protests were denied and their agitation suppressed. Strike action was forbidden. The Combination Act made void ‘any combination to obtain an advance of wages, or to lessen or alter the hours of duration of the times of working, or to diminish the quantity of work’. In the hunger riots of 1818, fifteen hundred hungry men marched under the banner ‘bread or blood’ demanding that the price of bread should be fixed. Twenty-four of them were condemned to death. When a powerful speaker, Orator Hunt, held a meeting at St. Peters field, 50,000 people gathered, and, in a charge of the yeomanry on the unarmed crowd a man was killed and forty injured. Peterloo was followed by the passing of the infamous Six Acts. Under these Acts meetings and freedom of speech were suppressed. In 1830, a few months before the introduction of the Great Reform Bill starving field labourers of the counties south of the Thames marched in a manner alleged to be riotous. Three were unjustly hanged and over four hundred were transported to Australia.
In this period, therefore, the pursuit of justice and legitimate interests by the working class were bitterly and successfully repressed. Nor did the workers have any representation in Parliament. Their frustration at the inadequacy of the Reform Bill led to Chartism. The Great Charter was approved at a mass meeting on the 9th August 1838. The movement called upon the Commons to enact the Charter which included a demand for adult suffrage. A separate body - the Convention - was established and purported to pass the Charter and give it legal effect. All of this was accompanied by torchlight meetings of working people which thoroughly alarmed the authorities. The Chartists sought to achieve their objectives by energetic political action but, after a time, by violent revolution. Indeed, it was the issue of violence that eventually split the movement. The dispute was never resolved and Chartism faded away fairly quickly after the collapse of the General Strike of 1842. It did not play any significant role after 1850.
In the result, it was not through any working class movement that the fight for the great factory legislation was carried on during these years. It was the work and achievement of the humanitarian movement.
The movement for factory legislation in the nineteenth century was led by the Earl of Shaftsbury (1801-1885) who was supported strongly by Tory evangelicals. But there were others. Robert Owen (1771-1858)· ; Michael Sadler (1780-1835), a Wesleyan Methodist, who had a business importing Irish linen; Richard Oastler (1789-1861), a land agent from a Wesleyan background[For a description of the powerful article by Oastler linking working conditions with slavery, which appeared in the Leeds Mercury, 1830, see Grayling.op.cit. p.174] and Edwin Chadwick, who had been Bentham’s secretary.
A very limited Factory Act, introduced by Sir Robert Peel, was passed in 1802 which purported to restrict the hours of apprentices to 12 hours per day. But it was easily circumvented and became a ‘dead letter’.* In 1815, apparently single handed, Owen started an agitation for factory reform. He drafted a Bill to apply to all textile factories. It would have prohibited the employment of all children under ten and prohibited night work for children under eighteen. He also wanted the working day of children restricted to 10½ hours per day. And finally he wanted the legislation to be monitored by inspectors.
He could not get support from other employers in Scotland but gained enough sympathisers in London for him to introduce the Bill. It met with severe opposition. The reaction came from factory owners and mill owners particularly, but even men who had given creditable support to the abolition of slavery such as Josiah Wedgwood, were fiercely opposed to the measure. Wedgwood, who was the uncle of Charles Darwin, had taken over his father’s great pottery works in Staffordshire. He employed 387 people, 13 under ten, 103 between ten and eighteen years. These workers engaged in such work as dipping ware in a glaze partly composed of lead oxide, a deadly poison, which Wedgwood admitted made them ‘very subject to disease’. Yet in 1816 he added in evidence to the parliamentary committee on the proposed measure, ‘I have a strong opinion that from all I know at present of manufactures in general, and certainly from all I know of my own, we had better be left alone.’
Owen’s Bill in its original form was rejected. Speaking on it in the House of Lords, Lord Lauderdale said:
“Such things as this ought to be left entirely to the moral feelings of perhaps the most moral people on the face of the earth… If the legislature attempts to lay down a moral code for the people, there is always the danger that every feeling of benevolence will be extirpated.”
His Bill having become so emasculated over two sessions, Owen ceased to work for it further and denied all responsibility for its future form. Legislation was ultimately passed in 1819, known as the Cotton Factory Act 1819. Clause 1 provided that ‘no child shall be employed for the spinning of cotton into yarn… until he shall have attained the full age of 9 years.’ Clause 2 provided that no person under 16 ‘shall be employed in the spinning of cotton wool into yarn… for more than 12 hours, exclusive of the necessary time taken for meals’.
The measure was wholly inadequate. Apart from anything else, it was limited to cotton. The woolen and worsted factories were not even touched. Owen was disillusioned but even this inadequate legislation would not have become law but for him.
New factory legislation was revised and prepared by Michael Sadler in 1831 and was forced on the Commons by the Committee of which he was Chairman. But the Borough for which Sadler was sitting, was disenfranchised after the reform bill of 1832. This was a blow. The man who had by the 1830s become the acknowledged leader of the working man could no longer be their representative.* It was at this point that Shaftsbury (then Lord Ashley) was approached to lead the movement. He accepted and put forward a Ten Hour Bill. The opposition proved overwhelming. Economists of the day maintained the right of every Englishman to do his business without any meddling and that there should be no interference from the State. The worker should make his own bargain as a free man not looking to Parliament for support. It was also argued that if the workers had any free time it would be used for immoral purposes.
In reply, Shaftsbury, who had examined for himself the mills, mines, and slums, said:
“Let your laws, we say to the Parliament, assume the proper function of law, protect those for whom neither wealth, nor station, nor age has raised a bulwark against tyranny.”
The Ten hour proposals were opposed by Lord Althrop who eventually introduced a measure of his own which fell far short of what Shaftsbury wanted. This new measure was enacted. The Factory Act 1833 provided that no person under 18 should be employed for more than 12 hours in any day nor for more than 69 hours in a week. One important and new feature was the provision for the appointment of inspectors. Largely through the efforts of Chadwick, the provisions in the legislation providing for inspectors were implemented. Their reports became vital for further progress. But the substance of the Act, even in its modified form, was bitterly opposed by manufacturers. It had introduced certain times for which children between 9 and 13 might work. Employers set about circumventing these provisions by introducing what became known as ‘the relay system’. From 5.30 to 1.30 one set of children were put to work and from 1.30 to 8.30 another.
The failure of the Reform Bill 1832 to advance representation for workers in Parliament and the inadequacy of the 1833 Factory Act (which, in any event, did not become operative for three years) led, as we have said, to Chartism and Chartism itself, becoming increasingly frustrated, tended more and more towards violence.
In 1842 a Royal Commission reported on conditions in the mines which profoundly affected public opinion. It found that women and children worked in the mines in dreadful conditions and for the same number of hours as adult males. The Coal Mines Regulation Act 1842, which Shaftsbury pursued in Parliament, prohibited the employment of women and girls in mines altogether. General improvement followed particularly with the establishment of a mines inspectorate in 1850. (And yet as late as 1877, the Encyclopaedia Britannica, of that year, could record that ‘as a general rule boys are not allowed to work in collieries when below twelve years of age, but in these thin mines special exemptions were granted permitting the use of younger boys when required. The ‘thin mines’ were mines in which the seams were so thin that only very small boys could push or pull the trucks of coal often being obliged to crawl at full length owing to the lowness of the excavation in the course of considerable journeys.’)
The crisis in factory legislation came to a head with a further attempt at the Ten Hours Bill. A ten hour day was the basic aspiration of workers. The Bill was opposed with great vigour by free traders and mill owners. Before it was passed it became entangled with the controversy over the repeal of Corn Laws. In the result the Bill was fought at every stage. Cobden maintained that workers should make their own bargain. Pease, a Darlington factory owner, proposed to close his factory. John Bright had previously threatened to turn the key on his mills and throw on the legislators the responsibility of ‘feeding the millions whom they will not allow us to employ at a profit’. Lord Macaulay, who supported the Bill, described the argument of its opponents as follows:
“They reason thus. We cannot reduce the number of hours in factories without reducing the amount of production. We cannot reduce the amount of production without reducing the remuneration of the labourer. Meanwhile, foreigners, who are at liberty to work until they drop dead at their looms, will soon beat us out of all the markets of the world. Wages will go down first. The conditions of our working people will be far worse than it is…”
Macaulay heaped scorn upon these arguments and his impressive speech was very influential.
The parliamentary struggle for the Bill was led by Oastler, outside Parliament, and Shaftsbury and the humanitarians in Parliament. When finally carried in 1847, it was largely through the work of Fielden, a man who had once been a worker in the cotton industry and was by 1847, the largest cotton-spinner in the business. The Act came into law on the 1st May 1848 but there was a loophole.* By working their workers in relays employers could get fourteen hours from them instead of ten. The ten hour requirement had not been expressed to be continuous. Shaftsbury returned to Parliament with an amendment. Working hours were finally fixed from 6am to 6pm with 1½ hours for meals. This became effective in July 1850.
The humanitarian influence did not cease with the passage of the Ten Hour Bill. Shaftsbury himself was still active into the 1870’s, with the passage of such measures as the Chimney Sweeps Act. But the role of humanitarianism and relief of the worker tended to become increasingly philanthropic with the work in the slums of movements such as the Young Men’s Christian Association and the Salvation Army.
In England the claims of the worker were pursued by trade unions. The limitations of the 1824 Combination Act were finally removed by Gladstone’s Trade Union Act of 1871 which enabled unions to exist on favourable terms. Trade union activity, however justifiable and effective, was by its nature self-interested.
Humanitarianism played a less influential role in securing the conditions of workers on the Continent. This was due largely to industrialisation having begun later. By 1848, when the Communist Manifesto was published, a fully developed theory of revolutionary socialism involving capture of the State by the proletariat had become widespread and predominant. One should not neglect mention of the French Utopian socialists Saint-Simon and Fourier whose ideas mingled with humanitarianism. But their lasting influence was essentially as forerunners of ‘scientific’ socialism. The rise of the working classes on the Continent began, not with humanitarianism, but with the Revolution of 1848. In France reduction of working hours began in that year, in Belgium and Holland about the same time, in Germany somewhat later, and still later in Italy and Austria.
Robert Owen (1771‑1858) emphatically rejected christianity. He also rejected liberty of contract and private property. He thus belonged neither to the evangelicans nor to the utilitarians.
Owen was a Manchester cotton spinner, who made a fortune whilst young. Distressed at the condition of the workers in the Mills, he set about giving them fairer conditions first at Manchester and afterwards at New Lanark.
‘From 1800 to 1829, he directed the great cotton mill at New Lanark, in Scotland, as managing partner along the same lines as at Manchester but with greater freedom of action and with a success that made him a European reputation. A population, originally consisting of the most diverse and, for the most part, very demoralised elements, a population that gradually grew to 2500, he turned into a model colony, in which drunkenness, police, magistrates, law suits, poor laws and charity were unknown. And all this simply by placing the people in conditions worthy of human beings, and especially by carefully bringing up the rising generation. He was the founder of infant schools and introduced them first at New Lanark …………… whilst his competitors worked their people thirteen or fourteen hours per day, in New Lanark the working day was only ten and one half hours. When a crisis in cotton stopped work for four months, his workers received their full wages all the time. And with all this the business more than doubled in value, and to the last yielded large profits for its proprietors.’ (Friedrich Engels - Anti-Duhring).
Owen had thoroughly absorbed the Enlightenment idea of the perfectibility of Man through improvement of social conditions. In a series of Essays, published in 1813‑1814, under the somewhat excessive title, 'New view of Society, or Essays on the formation of the Human Character, preparatory to the development of a plan for gradually ameliorating the condition of mankind', he expressed the belief that the principal error of government was to suppose that men were responsible for their vices and virtues and their character.
Owen had reached the view that profits and interest rightfully belonged to the working class and that therefore the correction of the economic system required fundamental change. In 1820, in his Report to the County of Lanark he declared that reform was not enough and that nothing short of the transformation of the social order was needed.
In the first number of the New Moral World, a journal published from 1834 to 1836, Owen proclaimed an ideal society in which there would be no ignorance, poverty or ‑‑ how different from christian philanthropy ‑‑ no charity. This was to be achieved by an industrial democracy and cooperative ownership and control of industry. Robert Owen was the first to use the word ‘socialism’. He found in the unsuccessful experiment of New Harmony in Indiana how difficult realisation of his ideals would be. In the field of industrial conditions Robert Owen was a great humanitarian reformer.
* F. Braudel, The Perspective of the World: Civilisation and Capitalism, 15th to 19th centuries, Collins, p.564.
* “One relay of children rose wearily from their beds as another relay came to throw themselves down in their places . They were fed on the coarsest and cheapest food, or rather starved upon it, so that they often fought with their master’s pigs for the refuse of the swine-trough. They were worked sixteen, eighteen, or even a larger number of hours at a stretch … sometimes they tried to run away… and chains were riveted on their limbs”, H. de B. Gibbins, English Social Reformers,(1892), Methuen, pp.114-115.
· See note at the end of this section.
* H. de B. Gibbins, op.cit., p.116.
* In his impassioned speech to the House of Commons on the introduction of the 1831 legislation Sadler said, “then, in order to keep them awake, to stimulate their exertions, means are made use of to which I shall now advert as a last instance of the degradation to which this system has reduced the manufacturing operatives of this country. Children are beaten with thongs, prepared for the purpose. Yes, the females of this country, no matter whether children or grown up …are beaten, beaten in your free market of labour as you term it, like slaves. The poor wretch is flogged before its companions – flogged, I say, like a dog, by the tyrant overlooker.”, quoted by H de B. Gibbins, op.cit. p.124.
* “The Act 10
Vict.c.29 provided, I A Ten Hours Day for women and young persons; ii Fixed
legal day as any ten hours between 5.30 am to 8.30 pm. Later on (1850), owing
to abuse of the relay system by manufacturers, a uniform working day was
fixed – from 6am to 6 pm, with an hour and a half for meals, and work for
protected persons to cease after 2 pm on Saturday”, H, de B. Gibbins,
Medieval criminal punishments were brutal. Lea gives this description in his ‘History of the Inquisition in the Middle Ages’:
“The Carolina, a criminal code of Charles V, issued in 1530, is a hideous catalogue of blinding mutilation, tearing with hot pincers, burning alive and breaking on the wheel. In England poisoners were boiled to death, even as lately as 1542, as in the cases of Rouse and Margaret Downie; the barbarous penalty for high treason – hanging, drawing and quartering - is well known, while that for petty treason was enforced no longer ago than 1726 on Catherine Hayes who was burned at Tyburn for murdering her husband. By the laws of Christian V of Denmark in 1683, blasphemers were beheaded after having the tongue cut out. As recently as 1706 at Hanover, a pastor named Zachoree George Flugge was burned alive for coining”.
During the same period as the code, witches and heretics were burnt at the stake. In Tudor times offenders convicted of non-capital offences were punished by branding with hot irons, or by being set in the pillory or being whipped ‘together, sometimes in the church-yard after evening prayers, more often in the market place on market days’. When a man or woman was placed in the pillory, the mob took part in the punishment either cheering the offender or covering him or her with rotten eggs or garbage. The pillory was still in use in the late eighteenth and early nineteenth centuries. In 1797 the preacher, Thomas Evans, was pilloried for singing a seditious Welsh song and as late as 1812 Eaton, the publisher of Thomas Paine’s ‘The Age of Reason’, was put in the pillory.
The remarkable aspect of pre-enlightenment criminal punishment was the ‘unthinking’ character of the cruelty. This suggests something which we will find repeated. Once the infliction of pain has some ostensible justification and is sanctified by the State and by law and society, human beings feel free to indulge in cruelty to satisfy their own passions. It is as if compassion and cruelty are jostling for possession of the human heart. Social values and controls or the absence of them, will give either the edge.
And so at the outset of the eighteenth century the criminal justice systems of Europe were a mass of retributive cruelty.
Reform was, first and foremost, a product of the Enlightenment. The reformer who led, and in a sense completed the reform, was the Italian Cesare Beccaria.
Beccaria was born in 1738. He published his great work, Dei Delitte e delle Pene in 1764. He was thus only 26 years old. Within a year his fame was world-wide. Arthur Koestler has written of Beccaria that ‘there was perhaps no single humanist since Erasmus of Rotterdam, who, without being attached to a definite political or religious movement, had such a deep effect on European thought’. Dei Delitte e delle Pene was the first serious work devoted exclusively to the question of criminal justice. ‘With a boldness and ruthlessness Beccaria surveyed one after another various aspects of the established systems of justice. His judgement was stern and unsparing but having destroyed, he at once proceeded to rebuild. His constructive proposals, which taken together, formed a complete system of criminal law and procedure such as had never before been evolved with equal precision and thoroughness’.*
Beccaria strongly favoured moderate penalties provided that there was certainty and prompt punishment and a due proportion between crime and punishment. He opposed the doctrine of maximum severity, to which we will refer, because it was not likely to achieve the object of punishment which was prevention of crime not the torment of the offender. Severity, in his opinion, hardened criminals and bred impunity.
Beccaria corresponded with monarchs. Voltaire wrote the preface to the first French edition of his work and was influential in disseminating his ideas. In the result, Beccaria inspired far-reaching reforms throughout Europe. During his life, his proposals were embodied in the laws of Russia, Sweden, Austria, Tuscany and France. Beccaria greatly influenced Frederick the Great. As a result of Frederick’s personal zeal, the Prussian criminal code was revised and rationalised and the death penalty was reduced so that the yearly average for executions between 1775 and 1778 was only fifteen. On 22 August 1772 Gustavus III, of Sweden abolished torture and thereafter comprehensively revised the criminal code, the revision coming into effect on 20 January 1779. Maria Theresa of Austria did not accept Beccarias’ ideas but her sons, Joseph and Leopold, did. Joseph II, who succeeded his mother, thoroughly revised the Austrian code. The revised code came into force on the 13th. January 1787 and was the first to abolish capital punishment for every offence other than treason or murder. Leopold, Grand Duke of Tuscany passed an Edict putting Beccaria’s ideas into effect. In 1791 the French reflected his influence in a new penal code.
It is important to note the significance of rationalism in this case of humanitarian reform. Beccaria asked what were the objects of punishment and then proceeded to analyse how those objects might be attained. Compassion was not neglected. He inveighed against the cruelty of the existing systems but it was their pointlessness and the fact their focus was exclusively upon vengeance, which he emphasised.
Sometimes suffering is the initiating force in humanitarian action. This is particularly likely where action depends upon mass pressure. In this instance, however, rationalism was the motor force. The sweeping success of Beccarias’ ideas on the Continent was due to ‘Enlightenment - influenced’ monarchs. The influence came from above.
The success in humanising punishment was swift in the sense that thenceforward punishment was or purported to be rationally based. The science of criminology was born.
To these general developments there was one exception. England has so far been the one country not mentioned in this historical sketch. ‘One would have imagined’ wrote Arthur Koestler ‘that England with its great democratic and liberal tradition should have been the country most receptive to the new trend. Yet, through more than a century, England swam against the current’ Why was this so?
In 1688 there were about fifty capital offences in England. Between 1660 and 1819 these increased greatly and 187 capital statutes were passed. Death was thus the only punishment for all of these offences many of which differed greatly in seriousness. To avoid uncertainty the Courts, when passing sentence, were allowed no discretion to take notice of any extenuating circumstances (except those offences entitled to benefit of clergy). Horse stealing and sheep stealing were capital offences. Stealing from the person above the value of one shilling and stealing from a shop to the value of five shillings were each punishable by death, as was stealing in a dwelling to the value of forty shillings and stealing from bleaching grounds.
The extremity of the sentences even extended to children. In 1808 a girl aged seven was executed. In 1831 a boy aged nine was publicly hanged at Chelmsford for having set fire to a house. In the same year a boy, aged thirteen, was hanged at Maidstone.
Transportation was the only alternative to the death penalty during the eighteenth century. It would not be correct to suggest that transportation originated then. Since the reign of Queen Elizabeth convicts under the sentence of death were liable to transportation to the Virginia Plantations. However, following the Transportation Act (1718), transportation was not a spasmodically applied alternative but became an integral part of the English criminal law. Persons convicted of larceny from the person or from a house could be sentenced to transportation.
After Captain Cook had explored the east coast of Australia, New South Wales was decided upon as a convict colony and subsequently other convict settlements were established in Norfolk Island and Van Diemens Land. In time, the whole convict system became a byword for inhumanity.
There were a number of reasons why England took the course of imposing ever more severe penalties.
England was faced with serious difficulties in maintaining a minimum state of law and order.
England was the first European country to experience industrialisation, rapid population growth and urban congestion. From 1700 to 1740 the population remained almost constant at about 6 million. It then began rising rapidly, so fast that between 1750 and 1770 the population of London doubled. Between 1800 and the end of the century London's population rose from 1 million to 6.7 million. New cities grew up. In 1717, Manchester was a village of 12,000, in 1747, its population was 30,000 and by the 1860’s it was 300,000. Cities became crowded with the dispossessed, the unemployed and the homeless. The nation was simply unable to cope. Crime increased. At one time, towards the end of the eighteenth century, it was estimated that there were 8,000 receivers of stolen property in London and at least 50 mints pouring out counterfeit money.
In 1775, a London resident, James Hannay exclaimed; ‘I sup with my friends. I cannot return to my home, not even in my chariot, without danger of a pistol being clapt to my breast.’
It would seem obvious in this situation that the first necessity was an organised police force. This England lacked. Henry Fielding first conceived the idea, self-evident though it may now appear. In 1749 he introduced the Bow Street Runners, but Pitt’s attempt, in 1785, to establish a force (by the London and Westminster Police Bill) met with violent opposition. Faced with antagonism in the City, Pitt hastily withdrew his Bill. Numerous committees then examined the question but the British public remained convinced that a Police Force would destroy their liberties. John William Ward’s comment, in 1811, epitomised the general view, ‘they have an admirable police in Paris, but they pay for it dear enough. I’d rather half a dozen people’s throats should be cut in Radcliffe Highway than be subject to the domiciliary visits, spies and all the rest of Fouché’s contrivances.’
The English criminal justice system in the eighteenth century was the admiration of Europe. The jury system, the requirement of unanimity of 12 out of 24 jurors, the ability to call witnesses and the public character of the procedure, all combined to make it more just than the inquisitorial systems of justice, often associated with torture, which prevailed on the Continent. A French admirer Rouchefold, recognised, however, that such a system was ‘favourable to the person of the accused’. The guilty were frequently acquitted. There was thus no expectation by those committing offences that they would be caught, or, if caught, that they would be punished.
It took almost another thirty years before the public was persuaded by Peel as, he remarked to the Duke of Wellington, that ‘liberty does not consist in having your house robbed by organised gangs of thieves, and in leaving the principal streets of London in the nightly possession of drunken women and vagabonds.’ Peel established a Police Force. It has been said that he did so ‘in spite of the British people.’
And so it was against a background of an absence of organised law enforcement and of liberal criminal procedures that penalties were savagely increased and the death penalty extended. The principle of punishment known as the doctrine of maximum severity was expounded by a number of English writers throughout the eighteenth century, at first somewhat crudely, but then, with Paley, there was a serious attempt to give the doctrine a philosophic base. It is perhaps a tribute to the Enlightenment that it was thought necessary to justify existing punishments by some general theory and that Paley felt compelled to adopt as a chapter title in his own work, the title of Beccaria’s great work, ‘Of Crimes and Punishment’.
In 1701 the anonymous writer of a widely circulated pamphlet entitled ‘Hanging Not Punishment Enough’ noted that if death were the same punishment for a person convicted of surreptitiously stealing to the value of 5 shillings (‘as it is made by a late statute’) something more severe should be imposed on one who ‘puts me in fear of my life’. Only by aggravating the agonies of death would crime be deterred. George Oliffe wrote to the same effect in 1731, advocating breaking on the wheel and whipping to death.
These proposals were not adopted, but, in 1722, the Waltham Black Act (9 Geo 1 c 22) was enacted. No other statute passed during the eighteenth century equalled it in the number of crimes for which death was imposed as a penalty.
Whatever the influence of these writers there is no doubt about that of the Reverend Martin Madan and of William Paley.
Madan published his ‘Thoughts on Executive Justice’ in 1785. He expressed his complete agreement with the large number of capital offences. The sole object of punishment was, in his view, prevention. The question whether the severity of the penalty was proportionate to the gravity of the offence, was of no great consequence. The question of penalty should depend entirely on the degree of fear it was likely to generate in the minds of potential wrong-doers. What Madan particularly opposed was the tendency of Judges to extend mercy and thus reduce the sentence imposed.
Madan’s position was elaborated upon and stated more forcibly by William Paley in his ‘Principles of Moral and Political Philosophy’, a book which had very great influence on English thought during the late eighteenth and early nineteenth centuries. Paley unreservedly accepted that capital punishment was the most effective means of preventing crime and he seems to have been attracted to casting murderers into a den of wild animals. They would then perish ‘in a manner dreadful to the imagination, yet concealed from view.’
It seems barely credible that these ideas were propagated in England at the same time as those of Beccaria held sway on the continent. It must not be supposed though that Beccaria was without influence in England. Sir William Blackstone, the famous author of ‘Commentaries on the Laws of England’, published in 1765, read and admired Beccaria. He was a surprising convert, for Blackstone may have been expected to regard hanging with the same veneration as he regarded the English common law. But we find him stating in the Commentaries that the end of human punishment is not atonement or expiation of the crime committed but ‘as a precaution against the future offences of the same kind’. He deplored the dreadful frequency of capital punishment in the English criminal law.
Of more importance to history was the influence of Beccaria on Sir William Eden and Samuel Romilly.
Eden, the descendant of an ancient family, became prominent in Parliament. His ‘Principles of Penal Law’ published in 1771 was the pioneer of work for the general reform of the criminal law which was soon to begin.
Romilly’s interest in penal matters was stimulated by Beccaria, by John Howard and to some extent by Bentham. In 1785, when Madan published his ‘Thoughts on Executive Justice’, Romilly published an essay in reply, combating the doctrine of maximum severity.
And yet, at the end of the century, ‘the bloody code’ remained intact and the weight of opinion was strongly in its favour.
The struggle for the repeal of the Code took place between 1808 and 1837. It was a tremendous struggle. In 1808, when Romilly was contemplating his great campaign the number of capital statutes stood at 220.
Radzinowicz has recounted how Romilly came to introduce the first measures of penal reform:
“After many years of preliminary studies, it was during a holiday at Cowes in the summer of 1807 that Romilly decided to take up in Parliament the subject of the reform of the criminal law. It was then he prepared his first speech and drafted the two Bills he intended to introduce. The course he then contemplated taking was very different from the one he ultimately adopted. Ten months later in January 1808, under the advice of his friend George Wilson, Romilly abandoned the idea of bringing before Parliament even this moderate proposal. Wilson considered that, without first consulting the Judges, Romilly could not hope to carry the matter through and might well prejudice any future attempts to reform. ‘I cannot think’ wrote Romilly in his Memoirs, ‘of consulting the Judges; I’ve not the least hope that they would approve of the measure’. Some months later, however, another one of his friends, Scarlett (afterwards Lord Abinger) advised him to introduce a Bill to repeal all statutes imposing capital punishments for larceny. Sceptical of the chances of carrying through such a sweeping measure, yet determined to introduce at least a small reform, Romilly decided upon a middle course. ‘I determined to attempt the repeal of them (statutes) one by one: and to begin with the most odious of them, the Act of Queen Elizabeth, which makes it a capital offence to steal privately from the person of another.’ Subsequent events proved that Romilly’s caution had been justified and he had rightly assessed the strength of the opposition with which his proposal would have to contend.’*
In February 1810, Romilly introduced separate Bills to repeal three Acts all of which specified the death penalty: the first of these was for stealing privately in a shop to the value of 5 shillings; the second for stealing in a dwelling house to the value of 40 shillings and the third for stealing to the same amount on navigable rivers.
Speaking in the House of Lords on the repeal of the death penalty for stealing in a dwelling house, the Lord Chief Justice, Lord Ellenborough said:
“I trust your Lordships will pause before you assent to an experiment pregnant with danger to the security of property, and before you repeal a statute which has long been held necessary for public security. I am concerned with the rest of the Judges, public expediency requires that there should be no remission of the terror denounced against this description of offenders. Such will be the consequence of the repeal of this statute that I am certain that depredations to an unlimited extent would be immediately committed… no man can (could) trust himself for an hour out of doors without the most alarming apprehension, that, on his return, every vestige of his property will be swept off by the hardened robber.”
Lord Eldon, the Lord Chancellor was also alarmed by the measure. In the debate in the Lords he expressed some pride at having left a man, who was convicted before him for stealing a horse of the value of 7/6, for execution, on the ground that he was a regular horse stealer.
Both Lord Eldon and Lord Ellenborough endorsed Paley’s main idea that to effectively inhibit crime the death penalty should be imposed for a wide range of offences but actually executed selectively.
Romilly’s speech on the occasion of introducing these Bills was one of the most brilliant he ever delivered. It was distinguished by a thorough and detailed examination of the data on punishment in general and capital punishment in particular. He was supported by Sir William Grant, Master of the Rolls, Canning and Wilberforce. Grant argued that the criminal law should be brought into harmony with the community attitudes; Canning maintained that the large number of capital offences distorted the discretionary power and Wilberforce supported the measure on broad humanitarian grounds.
Romilly lost. His Bill to repeal capital punishment for theft in a dwelling house was defeated by only two.
In 1811, in addition to introducing the three Bills that had failed in the previous year, Romilly introduced two other Bills, one of these was to prove important. It sought the repeal of the death penalty for stealing 10 shillings or more from bleaching grounds. This Bill for repeal was supported by a petition of 150 proprietors of bleaching grounds who claimed that the death penalty was too severe and juries would not convict; the law was thus not being enforced. Even Lord Ellenborough voted for repeal.
Romilly did not live to see his Bill for repeal of the death penalty for stealing in a shop to the value of 5 shillings and over, enacted. It was passed by the Commons but defeated in the House of Lords on no less than six occasions; in 1810, 1811, 1813, 1816, 1818 and 1820. In the course of his life he succeeded in getting only three capital statutes repealed, those relating to pickpocketing, to soldiers and mariners wandering without a pass and stealing from bleaching grounds. As Koestler wrote, ‘Romilly committed suicide, a defeated man, a few days after his wife’s death in November 1818. He was 61 when he died. One of the greatest Englishmen of his time, whose name has been unjustly forgotten.’
Nevertheless, looking back we can see that from the time of Romilly’s first move, reform was certain. Even though the Bills for the repeal of the death penalty for shoplifting to the value of 5 shillings and stealing from a dwelling were thrown out by the House of Lords, juries refused to convict and held instead goods of a clear value of fifty pounds and upwards to be under the value of 5 shillings. Juries simply refused to convict for offences where the death penalty could be imposed.
This became of increasing concern to commercial enterprises which owned property liable to theft. We have mentioned the proprietors of bleaching establishments who in 1811, had sent two petitions to the House of Commons demanding that stealing from their establishments should not be a capital offence because juries refused to convict. A spate of similar petitions followed - among them a petition by bankers from two hundred and fourteen cities.
Resistance began to crumble. In 1819 there were more than 12,000 petitions. A Select Committee was appointed. A member of the House of Commons explained:
“If we look, Sir, to the motive that led to this great and important decision, we must in the first place ascribe to the previous verdict of the tribunal, to which even the omni-competence of Parliament ought to bow; I mean the verdict of the public opinion, which has loudly and unequivocally pronounced upon the penal code, as it stands in the Statute Book, a sentence of indigent condemnation.”
The 1819 Committee recommendations were moderate, but still the Lords held out. Romilly’s Shoplifting Repeal Act was thrown out in 1820 for the sixth time. But, at last, in 1823, the Waltham Black Act was repealed. Resistance finally collapsed when Peel came to the Home Office and, in 1829, created the modern Police Force. Public opinion had swung completely against the ‘Bloody Code.’ This was reflected in the Press. Bentham then at the height of his prestige called for the abolition of capital punishment for all offences, including murder, in a violent pamphlet published in 1830. By 1837 the number of capital offences had been reduced to 15. In 1861 the penalty of death was reduced to 4 offences (treason, murder, arson in dock yards and piracy).
The reduction in the number of capital offences was accompanied by other changes. These related first to the mode of execution. In 1814 the sentence of hanging drawing and quartering in the case of treason was at last modified so that a traitor would thereafter be hanged by the neck until dead. It was no longer required that the criminal be cut down alive, disembowelled and burnt. Even so, in 1820, the Cato Street conspirators, Thistlewood and four others, were hanged after being drawn on a hurdle before the execution in front of a large crowd. It was only in 1870 that the drawing on a hurdle, beheading and quartering were formally abolished.
In 1822 the then current practice of dissecting the bodies of murderers was done away with and in 1824 the alternative of hanging the body in chains was prohibited.
One medieval inhumanity lingered. This was the public execution. This continued in England throughout the first half of the nineteenth century. ‘Nothing in English criminal law seems more disgusting than public hanging’ wrote Robert Hughes in ‘The Fatal Shore’. Dickens described in ‘A Tale of Two Cities’ Tyburn as it was in the eighteenth century:
“They hanged at Tyburn, in those days, so that the street outside Newgate had not obtained one infamous notoriety that has since attached to it. The gaol was a vile place, in which most kinds of debauchery and villainy were practised, and where dire diseases were bred, that came into Court with the prisoners, and sometimes rushed straight from the dock at my Lord Chief Justice himself and pulled him off the bench; for the rest, the Old Bailey was famous as a kind of deadly inn-yard from which pale travellers set out continually, in carts and couches, on a violent passage into the other world; traversing some two miles and a half of public street and road, and shaming few good citizens, if any. It was famous, too, for the pillory, a wise old institution, that inflicted punishment of which no-one could foresee the extent; also, for the whipping post, another dear old institution, very humanising and softening to behold in action”
Certainly if the victim were famous - Jack Shepherd or Lord Ferrers - 25,000 people might attend ‘Thirty thousand were said to have attended the execution of the twin brothers Perreau (for forgery) in 1776’, and as late as 1849, ‘we hear of a swell mob chartering a special train to Norwich for the execution of a notorious murderer, just as a football crowd may throng to a cup final.’
In 1783 the place of execution was transferred from Tyburn to an open space in front of Newgate prison, where the first execution took place on the 9th December in that year. That change was made ‘in consequence in the mischiefs which arose from the long parade of criminals from Newgate to Tyburn.’
Another change introduced at about this time was the ‘drop’, which related to the mode of hanging. Previously offenders were hanged from carts and death would not always be instantaneous. The ‘drop’ was first used in the execution of Earl Ferrers in 1760. There was a great deal of experiment but the new drop set up Northampton County Gaol in 1818 was described by the Governor as adequate for the hanging of twelve prisoners comfortably.
The crowds that gathered at Newgate were much the same as those who used to assemble at Tyburn. When Halloway and Haggerty were to be executed for a murder they had committed five years previously, the excitement in London was so great that about 40,000 assembled near Newgate. At the execution of Fauntleroy in 1824 no less than 100,000 assembled. Every window and roof was occupied. In a letter to the Daily News, on 28 February 1846, Dickens, who was present at the hanging of Courvorsier, wrote:
“Whether public executions produce any good impression on the habitual witnesses, or whether they are calculated to produce any good impression on the class of persons most likely to be attracted to them, is a question by this time pretty well decided. I was present, myself, at the execution of Courvorsier. I was purposely, on the spot, from midnight of the night before; and was a near witness of the whole process of the building of the scaffolding, the gathering of the crowd, the gradual swelling of the concourse with the coming on of day, the hanging of the man, the cutting of the body down and the removal of it into prison. From the moment of my arrival, when there were but a full score of boys in the street, and those all young thieves, and all clustered together behind the barrier to the drop - down to the time when I saw the body with its dangling head being carried on a wooden bier into the gaol - I did not see one token in all the immense crowds: at the windows, in the streets, on house-tips, anywhere; of any one emotion suitable to the occasion. No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, levity, drunkenness and flaunting vice in fifty other shapes. I should have deemed it impossible that I could have ever felt any large assembly of my fellow creatures to be so odious.”
Public executions were belatedly abolished in 1868, twelve years after a Select Committee had unanimously recommended abolition.
Other more or less barbarous punishments were moderated or abolished throughout the nineteenth century:
1815 the pillory was abolished in this year for some cases and finally abolished in 1837.
1817 rewards to informers for convictions were abolished.
1820 whipping of females was abolished.
1824 cessation of burial of suicides at the cross roads.
1827 spring guns were prohibited.
1857 transportation was abolished.
1872 the last occasion an offender was put in the stocks.
Reform of criminal punishments depended first upon a devoted activist, Romilly, with the help of a minority of like thinking humanitarians. Public opinion begins to change, assisted by a commercial interest (in the case of the bankers and bleachers) until finally reform is achieved. The Christian churches stood out. The Bishops of the Church of England joined with the Law Lords to reject Romilly’s legislation time and time again in the House of Lords.
An immense advance in civilisation had taken place. Chiefly this was due to the application of rationalism. Punishment had, henceforth, to be related to a social purpose – the prevention of crime – and measured by the responsibility of the offender. This was no easy task and is far from complete. But it is seen as the task. Before the eighteenth century punishment was not looked upon in this way. The approach was almost theological. Crime was equated to sin. And nothing more easily gratifies and justifies sadism than the sense of righteousness which comes with the infliction of punishment on somebody else for sin.*
By the eighteenth century prisons in England had become, in the words of Henry Fielding, ‘sewers of idleness’. Prisons were farmed out to private persons whose only responsibility was the safe custody of the person and whose only interest was to make the greatest profit from the fees they were permitted to charge. ‘English prisons’, Trevelyan said, ‘remained for the rest of the century a national disgrace, being still farmed out to wretches of this kind by the local authorities who would not undergo the trouble and expense to maintain them by properly paid officials. In the prisons of the 1780’s there was no attempt to classify or segregate prisoners by age, sex or gravity of crime.’ ‘Women were thrown in the same common ward as men; first offenders with hardened recidivists; inoffensive civil debtors with muggers; clerkly forgers with murderers, ten year old boys with homosexual rapists.’*
In 1729 General Ogelthorpe drew the attention of Parliament to the scandal of debtors’ prisons and induced it to enquire into the horrors of the Fleet and Marshalsea where gaolers tortured debtors to death in order to extract money from them.
John Howard began his life’s work upon his appointment as High Sheriff of Bedfordshire. He was shocked by the horrors of prison life and the callousness of the gaolers. He found men there who had been tried and acquitted but being unable to pay the gaolers’ charges were dragged back to gaol until they paid the gaolers’ fees. Howard proposed that the gaolers be paid regular wages by the County. The prisons themselves were incredibly dirty and ill-ventilated and they were so overcrowded that great numbers of prisoners died every year from gaol fever.
In 1777 John Howard published his great work ‘The State of Prisons in England and Wales, with preliminary observations and an account or some Foreign Prisons’. Prisons, he argued, should be sanitary and secure. The keeper should be the paid servant of Justices. Howard argued that there should be separate cells for sleeping in order to break down the corruption that came from the random aggregation of prisoners. Furthermore, prisoners should have useful work to do in proper workshops. One gathers an understanding of the book from a letter written by Romilly, then a young man, to John Roget on Howard’s ‘State of Prisons’. The letter, dated 22 May 1781, reads as follows:
“It is not a book of great literary merit, but it has a merit infinitely superior; it is one of those works which have been rare in all ages of the world, being written with a view only to the good of mankind. The author … made a visit to every prison and house of correction in England with invincible perseverance and courage; for some of the prisons were so infected with diseases and putrid air that he was obliged to hold a cloth steeped in vinegar to his nostrils during the whole time he remained in them, and to change his clothes the moment he returned. After having devoted so much time to his painful employment here, he set out on a tour through a great part of Holland, Germany and Switzerland to visit their prisons. What a singular journey! - not to admire the wonders of art and nature, not to visit the Courts and ape their manners - but to compare the misery of men in different countries, and to study the arts of mitigating the torments of mankind! What a contrast might be drawing between the painful labour of this man and the ostentatious sensibility which turns aside from scenes of misery, and with the mockery of a few barren tears, leaves it to seek comfort in its own distresses.”
Statutes were enacted from 1774 to 1791 giving effect to Howards’ views but the Justices who were responsible failed to implement them. Pitt acknowledged the need for action but was preoccupied with the French wars. Peel’s Gaol Act of 1823 became the foundation of the English prison system.
After Howard’s death in 1790 the leading reformer was Elizabeth Fry (1780-1845). She began visiting Newgate which was particularly infamous for its women prisoners. She arranged for them to be given food and clothing and procured materials and taught them how to make clothes. She set up a school for small children who had accompanied their mothers to gaol arranging for a young woman prisoner to teach them.
Prison reform had many vicissitudes. Some of the reformers’ theories, with their emphasis on solitary confinement, were erroneous. They were a product of the dreadful effect of eighteenth century gaols in congregating prisoners together.* Nevertheless, the great divide in prison reform is without question the humanitarian reforms of the late eighteenth and early nineteenth centuries. (The conservative reaction which took place in the latter part of the nineteenth century does not affect the correctness of this generalisation).
(1) Elizabethan criminal punishment and cruelty: Lytton Strachey in ‘Elizabeth and Essex’* describes the hanging, drawing and quartering of Dr Lopez, Ferreira and Tinoco.
“The Queen hesitated even more than usual before she allowed the sentences to be carried into execution… Then it was June 1594 – the three men, bound to hurdles, were dragged up Holborn, past the doctor’s house to Tyburn. A vast crowd was assembled to enjoy the spectacle… It howled with laughter when, amid the uproar, the Jew was heard asseverating that he loved his mistress better than Jesus Christ; no more was heard and the old man was hurried to the gallows. He was strung up and – such was the routine of the law – cut down while life was still in him. Then the rest of the time honoured punishment castration, disembowelling and quartering – was carried out. Ferreira was the next to suffer. After that, it was the turn of Tinoco. He has seen what was to be his fate, twice repeated, and from close enough. His ears were filled with the shrieks and moans of his companions and his eyes with every detail of the contortions and the blood. And so his adventures had ended thus at last. And yet, they had not quite ended; for Tinoco cut down too soon, recovered his feet after the hanging. He was lusty and desperate; and he fell upon his executioner. The crowd, wild with excitement, and cheering on the plucky foreigner, broke through the guards and made a ring to watch the fight. But, before long, the instincts of law and order reasserted themselves. Two stalwart fellows, seeing that the executioner was giving ground, rushed forward to his rescue. Tinoco was felled by a blow on the head; he was held down firmly on the scaffold; and, like the others, castrated, disembowelled, and quartered.”
(2) Criminal Punishment - the cruelty of Transportation: The horrors of transportation were described by Archbishop Ullathorne, Vicar General of the Vicar Apostolic of New Holland and Van Diemens Land. He wrote in 1838 “6,000 persons are, every year, transported from the kingdom. Their life .. is one of ‘misery and degradation’. Before Sir Richard Bourke restrained the power of single Magistrates, one of them could, in a summary way, sentence a convict, for the most trivial offence, to receive 150 lashes, at three separate inflictions. When this power was restrained to 50 lashes, for the first offence, a great outcry was raised … against the Governor: in consequence of which and to show the severity of even 50 lashes, the Police Magistrates were requested to witness themselves, for one month, the infliction of these sentences, and to report to the government the bodily injury and sufferings produced. I have seen the reports of ten Magistrates describing the effects of 247 floggings, which they have themselves seen inflicted in the month of September 1934.” Here are some examples.
“Adam Ballantine, disobedience of orders in going to the hospital under pretence of sickness; a troublesome character, 25 lashes. This boy received 25 lashes on 22nd July; he cried out loudly at every lash; the blood ran freely from fresh and old sores; he was severely punished.”
“Edward Scandrake, neglect of duty by feigning sickness, 25 lashes. He received 50 lashes last Monday week, but was never flogged before; was sore from the last punishment; blood came at the first stoke; he screamed dreadfully at every lash, the blood ran freely from old wounds, he lost much blood.”
(3) The Death Penalty: The change in public attitude was revealed in the press. An example is that of ‘The Spectator’ (May 28, 1831, Vol. 4, No.52 pp.517-518) in a note on ‘Capital Punishments’ in which the following comment on the execution of two men, one of whom had been convicted of sheep stealing and the other for stealing in a dwelling house was made:
“The execution of these two men for crimes unaccompanied by the slightest violence, has very naturally attracted the notice of a large and respectable class of the community, to whom the sanguinary character of our code has long been a subject of regret. It indeed appears singular, on a first view of the subject, that in free England, as it usually is called, the number of crimes punishable with death should be greater than in any other European state – that we who boast so highly of our civilisation should display in our practice greater barbarism than the least enlightened of our neighbours… In England, law grinds the poor – and why? The remainder of the line supplies the ready answer – rich men make the law! There is the secret of our bloody code – of the perverse ingenuity by which its abominations have so long been defended – of the dogged obstinacy with which all attempts to wash them away has been withstood! ‘who so stealeth a sheep, let him die the death’ says the statute: Could so monstrous a law have been enacted. Have our legislators been chosen by the people of England? But our lawmakers hitherto have been our landlords”. It is evident from this article that the question of capital punishment and the behaviour of the House of Lords regarding legislation for its abolition passed by the Commons had become an issue in the period immediately before the Reform Bill of 1832.
* L. Radzinowicz, A History of English Criminal Law, Stevens, Vol.1.p.279.
* Radzinowicz, A History of English Criminal Law, Stevens, Vol 1, pp.497-498.
* Freud, Civilisation and its Discontents, Dover Publications, p. 45 (although Madan took deterrence and prevention to a brutal extreme).
* Hughes “The Fatal Shore”, Pan Books, p. 38.
* Notably Jeremy Bentham’s Panopticon. This was a model prison designed by Bentham. Its main feature was a central observation tower which would enable the prisoners to be kept under constant surveillance. Bentham believed to an extreme degree in the Enlightenment idea that human beings could be moulded by their environment; in this instance in silent contemplation of the inutility of their criminal conduct. Fortunately, the Panopticon was never implemented except to some extent in the penal colony of Port Arthur, Tasmania.
Pennsylvania removed the death penalty in 1776 and then went beyond Howard in isolating prisoners in separate cells and solitary confinement. Dickens visited the prisons in Philadelphia on a visit to America and wrote of this in his American Notes (1842) that ‘in its intention, I am convinced that it is kind, humane and meant for reformation’ but added that ‘I believe it in its effect to be cruel and wrong’.
* Penguin, p.61
Torture, which had been ordinarily implemented and permitted by law throughout continental Europe, was abolished in almost every European country throughout the eighteenth century. This achievement was the work of the Enlightenment: Beccaria and Voltaire being its chief movers.
Although Germanic custom may have allowed torture in some rare cases, torture was not a feature of European law during the first thousand years of the christian era. The two main methods for determining guilt were Compurgation and Ordeal, the latter applying in graver offences. Both were adopted by ecclesiastical as well as secular tribunals. Compurgation required the accused to produce a prescribed number of oath-helpers to swear to his innocence. These oath helpers did not depose to the facts but generally to the innocence of the accused. The efficacy of compurgation depended upon local knowledge and, above all, upon the dread of what would follow a false oath. Ordeal was of four kinds – ordeal of fire, ordeal of hot water, ordeal of cold water, and ordeal of morsel. Ordeal was of Germanic origin but had been sanctioned by the Church. The outcome for the accused depended upon supposed divine intervention. Because it involved an appeal to the supernatural it was carried out under clerical supervision even if ordered by a secular tribunal.* Crude though these modes of trial undoubtedly were, torture was not a part of them. This was because the outcome did not depend upon a finding of facts in any strict sense but upon an appeal to the supernatural. Torture to secure proof was thus irrelevant.
By the twelfth and thirteenth centuries these primitive modes of trial were breaking down. Holdsworth records that the number of acquittals in the twelfth century was farcically large.
In November 1215 Pope Innocent III prohibited trial by Ordeal and forbade ecclesiastics from taking part in it.* By abolishing the Ordeal every European country was forced to put its criminal law on new basis since without the participation of priests the Ordeal could not be performed.
It was in this context that a new criminal procedure was introduced for ecclesiastical courts. Papal legislation by Innocent III gave effect to the procedure per inquisitionem by decrees made in 1198, 1199, 1206 and 1212 which were confirmed by the fourth Lateran Council. The inquisitorial procedure was an inquiry carried out chiefly by interrogation to find the truth. “The person thus prosecuted could be compelled to answer on oath the questions of the Judge; and the ‘inquisition’ was from that time onwards a central feature of the canonical procedure and of the criminal procedure developed from it.”* *
Torture thus came to be applied as a supplement to the new inquisitorial procedure.
The inquisitorial process extended from the ecclesiastical to the civil law. It was convenient for an apparently injured person. Technically he or she was not an accuser under this procedure. The accused had only to be denounced and the Judge would set in motion the procedure by interrogation to ascertain the truth and the ‘surest and easiest way to find the truth’ was to obtain a confession.
Torture emerged as the prime method of extorting evidence. Its introduction into ecclesiastical law was justified by certain authorities, Roman law jurists of the late empire and ecclesiastical Fathers who had lived during the empire. It was used especially in the case of heresy.*
Torture became commonplace in continental law. It was harshest in Germany and Italy but it was also very much a feature of French law. For example, under Ordinances of 1498 and 1539, provision was made for secrecy and torture. Where proof was not conclusive the Court could decree torture (question préparatoire) to extort a confession. If the proof was conclusive the Court proceeded to torture (question préalable) in order to extract the names of accomplices.
The process has been summed up by Pollock and Maitland as follows: ‘The judge collects testimony against the suspect, testimony which the suspect does not hear; it is put into writing. But even this weapon was too feeble for that warfare against heresy in which the Church was by this time engaged. The work of suppressing this crime was committed to the Friars, more especially to the Dominicans, and the procedure by way of inquisition assumed in their hands all its worst characteristics. Every safeguard of innocence was abolished or disregarded; torture was freely used… this procedure, inquisitory and secret, gradually forced its way into the temporal courts; we may almost say, that the common law of western Europe adopted it.’*
Beccaria and Voltaire were chiefly instrumental in the abolition of torture on the continent. The influence of Beccaria in rendering the use of torture obsolete was undoubtedly greater than that of any other legal reformer. He emphasised the unfair incidence of torture, as minds and bodies differ in strength. Moreover ‘it is to confound all relations to expect that a man should be both accuser and accused and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture’.*
A deep sense of outraged injustice among the French people stirred the Crown to reform the criminal justice system and eventually abolish torture. It arose first out of cases like that of Jean Calas. Jean Calas was tortured and cruelly executed; all four of his limbs being broken in two places. He was then strangled and burnt at the stake. He was accused of murdering his son, supposedly in a rage over his son’s plan to convert to Catholicism. To the end he maintained his innocence. In fact his son had suicided. Voltaire was approached. At first Voltaire regarded the case simply as confirmation of his contempt for all christians. If Calas were innocent, his death was an indictment of his Catholic executioners; if he were guilty, it demonstrated the fanaticism of the Protestants. But soon Voltaire saw the case as involving much more than religious propaganda. He wanted to find the truth. Before long he became convinced that Jean Calas had been the victim of judicial murder and he set out to rehabilitate his memory. He engaged lawyers to search out new evidence and to press the authorities. He solicited funds to help in the case of the destitute Calas family. He wrote moving accounts of the case and mounted a campaign against the French legal system. Finally, three years after the execution Calas was cleared.
The French philosophes looked about them for a legal procedure which knew no torture and they found it in the law of eighteenth century England. Continental writers visiting England applauded the English criminal justice system, in general, and the abolition of torture in England, in particular. The most famous work praising England’s institutions at this time was Voltaire’s Lettres Philosophique sur les Anglais which the French government had had burnt publicly as ‘as a scandalous work contrary to religion and morals…’. This work did not in fact deal with the English criminal justice system although Voltaire was to express admiration for it in other works but it did lead writers to look at English institutions. There were other foreign visitors – French, German and Swiss – who did comment on the English justice system and the absence of torture. Thus César de Sassure wrote ‘A Foreign View of England in the Reigns of George I and George II between 1725 and 1730’ in which work he said ‘in this country torture is not resorted to make a man confess a crime; it is thought that many an innocent person might be sacrificed were that barbarous custom adopted’. An earlier writer de Muralt in his Lettres sur les Anglais et les Francais had written ‘this abolishing of tortures (which are a shame to Christianity) is no small proof of their aversion to cruelty. They are looked upon here with horror…’.
By the late eighteenth century no sovereign could appear ‘enlightened’ if torture were permitted within his or her dominion.
Catherine II acknowledging the influence of Voltaire and Beccaria, included in the Instructions for the preparation of a Criminal Code (1776), a declaration that all punishments by which the body is maimed ought to be abolished. Torture was abolished in Tuscany by the Grand Duke, Peter Leopold, in 1786, largely as a result of Beccaria’s lucid indictment of torture and the death penalty. This was followed by the other Italian states. Frederick the Great had effectively abolished torture in Prussia in 1740 although this was not formalised until 1805. Other German states followed Prussia. A petition against torture was presented to the Austrian emperor by Joseph von Sonnenfels (1773-1817), and torture was abolished. Torture was abolished in France by an Ordonnance of 9th October 1789. The Austrian Netherlands (1797) and the United Provinces (1798) followed suit. Sweden had previously abolished torture in 1734.
One by one other countries followed. It was one of the Enlightenment’s great humanitarian triumphs. Torture was only to reappear in the twentieth century.
England abolished torture much earlier than that of any other European country. The history of its abolition in England is quite different. As long ago as the fifteenth century Sir John Fortescue, Chief Justice of the King’s Bench, in his work ‘In Praise of the Laws of England’ (1468-1471), had written that, ‘In this kinde of proceeding there is no cruelty or extremity used, neither can the innocent and unguilty be hurt in his bodie or limmes: wherefore hee shall not stand in feare of the slander of his enemies because hee shall not be racked or tormented at their will and pleasure’. A century or so later, Coke, in the Third Institutes wrote that ‘there is no law to warrant torture in this land, nor can they be justified by any prescription being so lately brought in’. Coke relied upon the authority of Fortescue but also concluded that torture was against Magna Carta, ‘and accordingly all the said ancient authors are against any paine or torment to be put or inflicted upon a prisoner before attainder… and there is no one opinion in our books, or judicial records (that we have seen and remember), for the maintenance of torture and torments’. The immediate question is why torture should have been opposed in England in the face of the opposite tendency taking place on the Continent. There is no question that English lawyers were aware of the difference. Indeed Fortescue’s work makes clear they were proud of it.
England, like the Continent, had experienced the same breakdown in the effectiveness of the Ordeal and the same problem of filling the vacuum upon it being prohibited. But some time before Innocent III’s pronouncement, Henry II (1154-1189) had adopted a new method of resolving the many land disputes which afflicted England at that time. A prospective litigant might obtain a royal writ to have a jury of neighbours summonsed to decide the issue. The jury in those early times heard no evidence. It was called to make a decision on the basis of each juror’s own knowledge of the facts. Once a party had secured twelve oaths in his favour he would win.
When Ordeal was abolished, English judges, who went on circuit, cast around for a new mode of trial. It was understandable that they should turn to the jury which Henry had started using a short time before to decide land disputes.
A prisoner would be asked whether he would ‘put himself upon his country’. If so, let him plead ‘not guilty’ and take their verdict. It was, however, a rule from the outset that a prisoner could not be tried by jury in place of the Ordeal without his consent.
It was, as Pollock and Maitland put it, a narrow escape. For if Innocent’s abolition of the Ordeal had occurred prior to the introduction of the jury into the judicial system by Henry, England may have followed the Continent and adopted inquisitorial procedures.
The differences between the two procedures are fundamental to the use of torture. The English system was accusatorial. The Crown had to establish the case against the accused. It could not compel the accused to assist it by answering questions on oath. The Crown shouldered the burden. Indeed so exclusive was the onus upon it, that the accused could not for many centuries call witnesses and, until relatively recently, could not give evidence on his own behalf. The jury was not engaged upon an inquiry. It was not there to find the truth of the matter. It was there to decide whether the Crown had discharged the burden or proving guilt by evidence adduced at trial.
In such a procedure there was no place for torture or other process to compel a confession.
There was perhaps another reason for the special situation of England in those early centuries. Heresy was relatively rare in England before Wycliffe and the Lollards and, although torture was by no means confined to the offence of heresy, it was, as we have seen, a major procedure for heresy inquisitions.*
To the rule that torture was illegal there was, even at common law, an exception. This was the peine forte et dure, a barbarous relic which itself portrays the origins of the common law rule against torture.
There could be no trial by jury unless the accused pleaded to the indictment. Judges would seek to persuade an accused to ‘put himself upon his country’ but if he refused there could be no trial. Many accused refused to plead and go to trial so as to avoid the forfeiture of their property which would automatically follow conviction in the case of felonies.
The expedient provided for by the Statute of Westminster (1275) to overcome a recalcitrant accused was the peine forte et dure – a procedure as clumsy as it was cruel. Heavy weights were placed upon the prisoners chest until he consented to be tried by pleading ‘guilty’ or ‘not guilty’ or until he died.*
This cruel exception to the rule at common law against torture survived for almost five centuries and, greatly as the English criminal justice system was praised by foreign observers in the eighteenth century, the anomaly was not overlooked. The peine forte et dure demonstrates how greatly the common law rejection of torture to obtain evidence depended upon the accusatory mode of trial rather than general humanity.
It must not be supposed, however, that torture was never carried out in England, under law. It was the common law that outlawed torture. Nowadays it would seem contradictory to say that torture could be lawful although outlawed by the common law but in the fifteenth and sixteenth centuries the common law had not yet established paramountcy of jurisdiction over its rivals. The Crown claimed a discretionary penal jurisdiction which it exercised through the Council or under prerogative. Its exercise was always controversial and never more so than with the Star Chamber.
Royal criminal authority favoured the inquisitorial procedures of the Continent. A defendant would be summonsed without notice and examined in secret. In the case of the trials for treason or sedition the regular procedure was formal interrogation and answer, written out, signed and witnessed. The interrogation might be resumed after the answers given had been matched with previous interrogations or with the interrogation of other witnesses.
Hudson, a writer of the times explains how these powers came to be abused:
“But, afterwards this advantage of examination was used like a Spanish Inquisition to rack men’s consciences, nay, to perplex them with intricate questions, thereby to make contrarieties, which may easily happen to simple men while examined upon 100 interrogatories, nay, examined of the whole course of their lives”.
The purpose of torture was to extract confessions or to gain information. The tortures used were the manacles, the rack, or the Instrument known as Skevington’s Irons. Some were stuck into a cell-box called Little Ease or in the Tower Hole below high-water mark, described officially as ‘the low dungeon with the rats’.
The protest of John Selden (1584-1654), a contemporary legal writer, is worth recalling:
“The rack is used nowhere as in England. In other countries it is used in judicature, when there is a semi-plena probatio, a half-proof against a man then to see if they can make it full, they rack him to try if he will confess. But here in England they take a man and rack him, I do not know why, nor when, not in terms of judicature, but when somebody bids.”
Eventually, there was a reaction against the inquisitorial procedures. In the first place this was constitutional with the common law courts, led by Coke, asserting paramountcy over prerogative. Apart from constitutional struggles there was a general revulsion in England against torture.
The most important, and almost the last case, of torture was that of Felton in 1628.
Felton had murdered the Duke of Buckingham and on arrest freely admitted the crime. Before trial he was brought before the Council and urged to confess who had incited him to the murder. He denied that anyone had done so. The report of the Council proceeding is as follows:
“Dr Laud, Bishop of London, being then at the Council table, told him if he would not confess, he must go to the rack. Felton replied, ‘if it must be so he could not tell whom he might not nominate in the extremity of torture, and if what he should say then must go for truth, he could not tell which of their Lordships he might name for torture might draw unexpected things from him. After this he was asked no more questions, but sent back to prison”.
The Council then debated whether the law of the land would justify putting Felton to the rack and the King, who was present, directed that before any such thing should be done the advice of the Judges should be taken. On the 13th November the King formally asked the Judges whether by the law Felton might not be racked ‘and whether there was any law against it’, for said the King ‘if it might be done by law, he would not use his prerogative in this point’. (italics added). On the next day all the Judges assembled at Serjeant’s Inn in Fleet Street and agreed unanimously that Felton ought not to be tortured on the rack ‘for no such punishment is known or allowed by our law’.
There were one or two occasions after this that torture was inflicted but in 1641 the Court of Star Chamber was abolished and, torture, except for the peine forte et dure disappeared in England.
A major law reform Committee appointed during the Cromwellean period, under the Chairmanship of Sir Matthew Hale, recommended on the 17th January 1652 that pressing to death should be abolished. The recommendation was not however enacted upon until 1772 when refusal to plead was required to be treated as a plea of guilty. Later by a statute during George IV’s reign it was provided that a plea of not guilty was to be entered when there was a refusal to plead.
In England the experience of the sixteenth and seventeenth centuries led public opinion to firmly oppose any compulsory process. The case of Lilburn had particularly influenced this course. He was charged in 1627 with bringing seditious libels out of Holland into England. He refused to take the oath and was punished by being whipped from the fleet to the pillory, receiving upwards of 500 lashes then being made to stand in the pillory for two hours and fined 500 pounds. This case and the abolition of the Star Chamber led English law to adopt the privilege against self-incrimination and the right to silence. It was thought that to compel a defendant to take an oath was contrary to the law of God and to natural law.
We may sum up by saying that the abolition of torture on the Continent was a consequence of the Enlightenment humanitarian impulse. It was that same rational compassion which distinguished the Enlightenment at its best.
In England the historical course was longer and more complicated. Forbidden by the common law at an early date, evidence procured by torture was thus excluded from the common law courts, but yet became allowed by virtue of the Royal prerogative and in the prerogative Courts for a number of centuries before its final abolition in 1640. The peine forte et dure - torture designed to force a plea was always an exception and was not finally abolished until the eighteenth century.
In the case of England therefore, unlike Europe generally, abolition of torture was not due to the humanitarian movement but to the accusatory mode of trial adopted by England at an early period in its legal history.
The abolition of torture is unquestionably one of the humanitarian movements great achievements. Within Europe torture had seemingly disappeared and, in 1876, Victor Hugo said as much.
Something similar occurred in the case of torture. Torture has revived with a vengeance in our times. Certainly any description of the humanitarian movement’s achievement is historically incomplete without saying something about this sad epilogue. Indeed what we have witnessed and are witnessing in the case of torture is a fascinating if depressing struggle between barbarism and civilization and the tension between these two forces is at this point of time very evenly balanced.
A brief note on recent history is set out below.
The resurgence of torture in the twentieth century can be dated fairly precisely to the Bolshevik revolution and its aftermath. Of course the war had produced brutality and the conditions for the re-introduction of torture but systematic torture as we have come to know it came after the war. Lenin abolished the 0khrana but immediately established the Cheka under Dzerjinsky who was given wide powers including to torture to eliminate the opposition and institute terror.
The object of much twentieth century torture differed from that in previous times. Torture under the Inquisition was directed to obtaining a confession of guilt – typically heresy – or to disclosure of information or evidence. Guy Fawkes was racked severely in the Tower of London to disclose the names of his confederates in the conspiracy to blow up the Houses of Parliament. This is the traditional purpose of torture. Certainly a great deal of twentieth century torture has had this as its purpose. So, for example, the appalling torture endured by the French Resistance leader Jean Moulin during the war to force him to make disclosures about the Resistance. But from, say, 1917 to 1956 the dominant object of torture was not so much the obtaining of information as the instilling of terror. Torture became an adjunct to State Terror. Extracting information played a part, even an important part, but it was ancillary to repressing dissent.*
Torture as an instrument of state terror was practised by dictatorships in the inter-war period because those states, unlike the older authoritarian governments, demanded totalitarian control and insisted upon ideological purity. Torture was practised quite early by the Italian fascists where the Blackshirts devised their own special torture of pumping a political opponent with castor oil to purge him of his will to resist. The Nazis used torture, as did Franco Spain until as late as the 1970’s – always with the object of eradicating or repressing dissent.
In Russia torture was used for terror and in conjunction with the ‘Show Trials’. Torture was not intended to obtain real information or a real admission of guilt. The faked confessions in Court were designed to cower and eradicate dissent, even dissenting thought. In Crimes against Humanity ,Geoffrey Robertson said, “it was not until 1956 that Krushchev admitted what should have been obvious to observers at the time: the defendants had all been subject to months of torture by the NKVD until they agreed to sign and speak the script prepared for them by Vyshinsky.” We saw in Russia a new technique – psychological torture. Physical torture could lead to confessions but not the kind of willing confessions in open court which Stalin wanted. “They were put on ‘the conveyor’ – a disorientation procedure which alternated psychological pressures of sleeplessness and starvation with interrogation to enhance suggestibility and acquiescence”*
The terrifying nature of this was brilliantly depicted in Arthur Koestler’s novel, Darkness at Noon. Rubashov, the old Communist is receiving this kind of treatment, “from then onwards the veil of mist over Rubashov’s memory became thicker. Later, he could only remember separate fragments of his dialogue with Gletkin, which extended over several days and nights, with short intervals of an hour or two. He could not even say exactly how many days and nights it had been….”…after 48 hours Rubashov had lost the sense of day and night. When, after an hours sleep, the giant shook him awake, he was no longer able to decide whether the grey light at the window was that of dawn or evening.”
Psychological torture was particularly applied by the Chinese communists and the term ‘brainwashing’ has come to us from the Korean war. Psychological torture is still being applied today against the Falun Gong in Chinese administrative re-education centres.
In some ways torture as state terror reached its apogee in Latin America during the 1970’s.Pinochet used torture in Chile after the coup against Allende and it was adopted at his urging by the military in Argentina, during the ‘dirty’ war, and by Uruguay and El Salvador. In these countries torture was used in a political and ideological conflict by the Military against communists and socialists. It was Pinochet’s torturers who taught the military junta in the Argentine between 1976 to 1983.One method of physical torture which they learnt was the grill or parilla described by one survivor as follows:
“ I was taken straight to the parilla. That is, I was tied to the metal frame of a bed, electrodes were attached to my hands and feet, and they ran an electric prod all over me, with particular savagery and intensity on the genitals.. . The electric prod was handled like a scalpel and the ’specialist’ would be guided by a doctor who would tell him if I could take any more.. The worst was having electrodes on your teeth – it felt as if a thunderbolt was blowing your head to pieces.”*
One of the most fearful innovations introduced by the Latin Americans were the ‘disappearances’ – the kidnapping of supposed left wing supporters and the torturing and disposing of them so that their whereabouts were never discovered. This seems to have begun on a large-scale in Guatemala but was adopted by Pinochet in 1973 and then by the other military governments in South America.
Latin American torture differed from that of Communist countries such as the Soviet Union during the aptly named ‘Great Terror’ : in the one case the torturee was made to ‘confess’ and in the other to ‘disappear’. Because of this the techniques differed, with emphasis on psychological torture in the communist countries and physical torture in Latin America. But the object of terrorising dissent was the same. Few of the tortured were ordinary criminals. They were political opponents or thought to be potential opponents. Torture may be used to obtain information but rarely for evidence in court.
And the standard equipment was much the same. The electric shock device became the main instrument of torture.*
At the South African Truth and Reconciliation Commission there were numerous admissions of torture by ex-officers seeking amnesty from the Commission.
Thus the evidence of Warrant Officer Paul van Vuuren:-
“We interrogated Sefolo in the same way as the previous two.* We used a yellow portable Robin generator to send electric shocks through his body and force him to speak…There were two wires. One was attached to his foot and the other to his hand. When we put the generator on his body was shocked stiff …. Sefolo was a very strong man .. and believed completely in what he was doing, that he was right…After he was interrogated, he admitted to being a senior ANC organiser in Witbank…He gave us even more information after Joe Mamsela shoved a knife up his nose. He was pleading for his life and asked if he could sing ‘Nkosi Sikelel’ iAfrika. Then he said we might as well kill him. He also said that the ANC would rule one day and that apartheid could not survive…* Mamasela covered his body with an ANC flag while Sefolo was singing ‘ ‘Nkosi Sikelel’ iAfrika. We then shocked Makupe to death… It was necessary to kill them in order to destroy the entire cell. No one knew what happened to them. After this we blew them up with a landmine so that it would be impossible to recognize them.It had to appear they were planting a landmine … We did not enjoy doing this, we did not want to do this, but we had to stop them killing innocent women and children. It was additionally necessary to do this because we were at war with the ANC. I have tremendous respect for Harold Sefolo because of the way in which he behaved during the process of us killing him.”
This description of callous brutality leads to some considerations about the psychology of the torturer. They arise from the matter-of-factness in his description of the infliction of pain and killing: ‘his body was shocked stiff’; ‘we shocked Maake to death’; ‘we then shocked Makupe to death’ and even the trace of humanity in his expression of respect for Sefolo. Warrant Officer van Vuuren was just a police officer obeying his instructions and carrying out his duties and he would have simply assumed justification for whatever orders were given.
The discomforting but seemingly accurate generalisation can be made that torturers are often ordinary people for whom obedience to orders and acceptance of what everybody else is doing provides sufficient justification. The morality of obedience supersedes the ethic of humanity. Hannah Arendt said of Adolph Eichmann that he was not a monster but “a bureaucrat who simply sat at his desk and did his job”. The conclusions of the now famous Milgram experiment carried out in the 1970’s confirms this. This controlled experiment on the application of electric shock to other human beings by university students found that ordinary young men would invariably obey what were in effect criminal instructions to torture.*
An apparently competing motivation is sadism or the enjoyment of cruelty. This is not necessarily inconsistent with bureaucratic obedience. Torture has traditionally attracted to it those with sadistic tendencies. And state-sanctioned torture tends to corrupt those not ordinarily disposed to cruelty.
One other point emerges from the hearings of the South African Truth and Reconciliation Commission. That is the place of torture in the collision between state terror and terrorism. Where dissent turns to violence, state terrorism masquerading under the name of law and order will unleash repressive measures, including torture, to repress it. Terrorism, for its part, is often directed to provoking state terror into even more repressive reprisals in order to attract adherents. Also, when terrorism engages in more or less uninhibited attacks on civilian life any state, whatever its disposition, will be faced with a need to anticipate those attacks. It is this last need which represents terrorism’s greatest challenge to the traditional concept of state interrogation built up over centuries by the rule of law. In general that concept presupposes that coercive methods of interrogation have to await suspicion of the commission of an offence. Even then the methods to be used are strictly limited and force is absolutely prohibited.
Terrorism leads to irregular methods to obtain information to forestall terrorist attack, usually, along with general repression so that it is not easy to know whether its purpose is one or the other. Van Vuuren’s description of the situation in South Africa exemplifies this.*
Many of these considerations came together in Northern Ireland where internment without trial was introduced on the 9th August 1971 with 342 arrests being made. Complaints about police brutality led the U.K. Home Secretary to appoint a three man Committee of Inquiry chaired by Sir Edmund Compton. The Committee concluded that certain techniques such as hooding, loud noise and sleep deprivation had been employed by the Security Forces in an attempt to extract information from detainees but although it found physical ill-treatment it made no finding of brutality in its report because “we consider that brutality is an inhuman or savage form of cruelty, and that cruelty implies a disposition to inflict suffering coupled with indifference or pleasure in the victim’s pain.” The committee noted, in apparent extenuation, that the kind of physical treatment applied was for “information which it was operationally necessary to obtain as rapidly as possible.”
Amnesty International set up a separate inquiry into allegations of torture in Northern Ireland about two weeks before the Compton committee presented its report. Unlike the official inquiry it heard evidence of internees and ex-internees. It reported that “ it is a form of torture to force a man to stand at the wall in the posture described for many hours in succession, in some cases for days on end, progressively exhausted and driven literally out of his mind by being subject to continuing noise and being deprived of food, sleep and even light”. On the 16th of November, the date on which the Compton committee handed in its report, another inquiry, the Parker Commission was launched. Although the majority of that committee justified the methods used on condition there were sufficient safeguards against excessive use, Lord Gardiner produced a separate dissenting report in which he said that the interrogation methods used in Ulster “were secret, illegal, not morally justifiable and alien to the traditions of what I believe to be the greatest democracy in the world.” The government in effect accepted Lord Gardiner’s dissenting view and the UK Conservative government announced that five techniques – hooding, high pitched noise, standing for long periods against a wall and deprivation of sleep would no longer be used.
Notwithstanding this, the Government of Ireland brought proceedings against the United Kingdom in the European Commission on Human Rights which held it to be ‘torture and inhuman and degrading treatment’. But two years later, on appeal, the finding of ‘torture’ as distinct from ‘inhuman and degrading’ treatment was negatived.
This description of 20th century torture is by no means complete. No reference has been made to the torture practised in the many civil wars, such as in Sri Lanka, nor to torture in the fierce colonial wars, in Algeria and other places.
By the 1970’s efforts, inspired by the same humanitarian impulse as had led to the initial abolition of torture, were undertaken to reverse the trend. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights forbade torture but there was nothing obligatory.*
A campaign for an international convention proscribing torture was launched by Amnesty International in 1972. It formulated a petition to the General Assembly of the United Nations and organized Regional Conferences to discuss the issue. Impetus for action was given by the brutal torture in Chile of Pinochet’s opponents following the overthrow of Allende in 1973.
In 1975 the first concrete action taken by the General Assembly was the Declaration against Torture and although it too was non-obligatory it contained specific injunctions against Torture and included a definition which was ultimately incorporated in the Convention. Collective action was hastened in 1978 following the death under torture of Steve Biko. Steps were taken to finalise a draft convention. In 1981 the Swedish Government and the International Association of Penal Law presented drafts for discussion by the United Nations Commission on Human Rights.
In the meantime torture moderated internationally. Between 1980 and 1990 torture ceased in Greece, Spain, Portugal and the Eastern European countries and in the 1990’s the Latin America countries and South Africa joined these. There remained though outstanding exceptions – China, Cuba, Egypt and Turkey.
In 1984 the Convention against Torture was finally open for signature and ratification and it entered into force on the 26th June 1987 with the 20th ratification. Since, a further 100 states have ratified the Convention.
The Convention requires each state to give legislative and administrative effect to the prohibition on torture, not to extradite a person to another state where he might be tortured and, importantly, not to allow evidence obtained by torture to be invoked in any proceedings. “Torture” was defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or a confession ……. When such pain or suffering is inflicted by or at the instigation or with the consent or acquiescence of a public official” but not if inflicted by lawful sanctions. The prohibition on torture was absolute. ”No exceptional circumstances whatsoever, whether a state of war, or a threat of war, internal stability or any other public emergency, may be invoked as a justification of torture.” The Convention established a committee of ten persons to review compliance by states but as this provision was thought too weak a protocol was recently formulated to permit on-the-spot inspections with prior notice but without prior consent. The protocol has not commanded enough support to come into force.
At the same time there were important developments in international law. It was accepted that torture was an offence under customary international law which allowed for universal jurisdiction wherever a torturer might be found. In Pinochet the House of Lords confirmed that “ever since 1945, torture on a large scale, has featured as one of the crimes against humanity….[which] justifies states in taking universal jurisdiction over torture wherever committed … The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal – the torturer – would find no safe haven.” An international trend against torture was growing. The European Court of Human Rights ruled against France for truncheon assaults by its gendarmes on a drug suspect and the Supreme Court of Israel decided that continual ‘ violent shaking’ practised by its Security Forces, Shin Bet, was illegal.
But then came the 11th of September 2001, when in the words of one United States official the ‘gloves were off’, and with it the wars in Afghanistan and Iraq.
The treatment of detainees in Afghanistan and Iraq is too recent and of those at Guantanamo Bay too current to be able to assess where the United States derogation from the moral and legal prohibition on torture will lead. Reports by the Red Cross, Amnesty International, statements by released detainees and disclosures under Freedom of Information have made it clear that torture has been practised in these places and where, in the case of a particular prisoner, something even more coercive is thought necessary he has been ‘rendered’ to foreign countries where torture is overtly acceptable. On the 1st August 2002 the Bybee memorandum (Bybee, the author of the memorandum, was then an official in the Justice Department) advised “severe pain” in the Convention definition, was equivalent to the “pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death”. Good faith belief that acts done would not amount to torture would constitute “a complete defense to a charge” under the Torture Act. The advice added that the President was not bound by the Convention against Torture because of “the executive branches constitutional authority to protect the nation from attack’. This advice was acted upon until it was abandoned on the 30th December 2004 after its contents had become public.
There have been calls, still relatively few and confined to academics, for permission to use torture in the case of terrorism. As previously mentioned, terrorism is unusual in the need to anticipate and prevent the offence and hence to obtain information about it. That might justify additional powers of detention and some qualification to the ordinary procedures of interrogation. But none of this remotely warrants whittling down the absolute prohibition of torture. Its absolute character must be preserved because it is peculiarly liable to collapse if exceptions are made or discretionary implementation is allowable. It is not merely that the history of torture shows a tendency to excess because of the way it excites sadism and encourages sadists. It is rather because once the principle is accepted of permitting torture to obtain information there is no logical stopping place on the extremity of the torture to be applied and against whom it is to be applied short of obtaining the information sought (apart from the fact that because evidence procured by torture is frequently unreliable, of ensuring its accuracy). If torture is to apply to terrorism – how far does one have to go to ensure that the person is a terrorist – 100%; 50% or 10% before the torture regime can be invoked? How far does one have to go to ensure that he/she has the required information – is it necessary that it is likely or is it sufficient that it is possible the person has the information? If, torture is to be a last resort, how is that to be determined? If, as some have suggested, a Judge is to consider and determine this before issuing a torture warrant, how is the Judge to decide upon this? On the basis of evidence presented by the police or torturing authority? How can he judicially examine this? Who is to supervise the torture to ensure that the conditions attaching to it are observed? If by a Judge -- how corrupting is that on our separation of powers? If not by a Judge, by whom? If not by a Judge, what defences are to be available in the case of death under torture? If terrorism is to justify the obtaining of information in this way, why restrict torture to the suspected terrorist? Why not his wife or child? And, finally, why restrict torture to terrorism, why should it not be extended to drug offences?
There are many examples, of which the prohibition of torture is one, where legal rules need to be absolute if they are to be effective and exceptions to them are restricted or not allowed. We do not allow a defence of necessity to murder or a defence of provocation for assault even though individual cases can be imagined where these would morally justify. Some legal rules are not capable of that degree of individualisation. The prohibition on torture is one of those rules.
Finally, one is compelled to ask what is the measure of corruption of those humanitarian social values concerning state brutality which civilisation has taken centuries to achieve if the use of torture is to be legally authorised?
The Court of Star Chamber first made its appearance in 1487 when a statute of Henry VII appointed a number of named persons belonging to the Privy Council to hear certain prescribed offences. For some time before this the King’s Council had been exercising a penal jurisdiction freed from the procedures of the common law courts. This jurisdiction was exercised in relation to serious offences as well as for offences not recognised at common law. In time a committee of the Council came to exercise the Council’s penal jurisdiction on its behalf. It was this body which came to be described as the Star Chamber. It was never clear whether the source of its jurisdiction was the statute of Henry VII or the inherent penal jurisdiction of the King’s Council.
Maitland in his Constitutional History of England, describes the effect of the Star Chamber as follows: ‘Let us now notice that Henry VII and his successors have ready to their hands a most efficient engine of government. The same body which issues ordinances, which controls the execution of the law and the administration of the State, acts also as a court of justice with a comprehensive penal jurisdiction – one day it can make an ordinance, and the next punish men for not obeying it. Its jurisdiction it exercises without any lengthy formalities – there is no trial by jury before it – the accused person is examined on his oath, a procedure quite strange to the courts of common law, in which (as the phrase goes) no one can be compelled to accuse himself. And it uses torture. Fortescue, the Lancastrian Chief Justice, to whose writing we have more than once referred, speaks of torture as foreign to English law – this is one of the respects in which he extols the English law at the expense of Continental law. But in Edward IV’s reign torture begins to make its appearance; we hear of it in 1468. It never becomes part of the procedure of the ordinary courts, but a free use is made of it by Council and the rack becomes one of our political institutions.’
* The four kinds of ordeal were as follows:
(a) Ordeal of hot iron. The accused had to carry a hot iron in his hand for nine steps. His hand was then bound up. If, when uncovered on the third day, it festered he was guilty; if healthy, he was innocent.
(b) The ordeal of hot water, this was conducted along similar lines.
(c) Ordeal of cold water. The accused was thrown into water. If he floated he was guilty. If he sank he was innocent. This particular form of ordeal was associated with the offence of witchcraft.
(d) Ordeal of Morsel. This consisted of giving the accused a piece of bread of cheese, one ounce in weight, which was adjured to stick in his throat if he was guilty. If it went down he was innocent.
* The Fourth Lateran Council.
* Holdsworth, History of English Law, Methuen, Vol I, p.311.
* It is true that before the papal legislation as endorsed by the Fourth Lateran Council the inquisitorial procedure had been available in a limited form for certain ‘notorious’ crimes.
* Heresy had long been an offence on the continent. Following the advance of the cathari in the eleventh century it was treated as a capital offence. This was formalised in legislation at the Lateran Councils of 1159 and 1215 together with confirmation by Papal Bulls of the Constitutions of the Emperor Frederick II which had spoken out fiercely against heresy. It was, from these Constitutions, that the punishment of burning at the stake became universally applied in cases of heresy.
* Pollock & Maitland, The History of English Law, Volume 2, Cambridge University Press, p.657.
* Encyclopaedia Britannica, 1959, Vol 22, p.314.
* The first clear case of heresy in England was that of Sawtre in 1400 who was convicted and the King thereupon issued a writ de haeretico comburendo. Sawtre’s case was relied upon as precedent that heresy was an offence at common law. A fortnight later a statute was enacted providing for the burning of heretics. In Henry VIII’s reign, however, this Act was repealed and Bishops were thus deprived of jurisdiction in matters of heresy. Thereafter, prosecutions for heresy had to be instituted by indictment in some temporal court. This led to a substantial reduction in prosecutions. An Arian was burnt in King James reign (1612). That was the last occasion of a person being burnt for heresy in England.
* The form of sentence on the prisoner was as follows: “that the prisoner shall be sent to the prison from whence he came and put into a mean room, stopped from the light and shall there be laid on the bare ground, without any litter, straw or other covering, and without any garment about him, except something to hide his privy members. He shall be upon his back, his head shall be covered and his feet shall be bear. One of his arms shall be drawn with a cord to one side of the room, and the other to the other side; and his leg shall be served in the like manner. There then shall be laid upon his body as much iron or stone as he can bear, and more. Then the first day after he shall have three morsels of barley bread, without any drink; and the next day he shall be allowed to drink without any bread; and that shall be his diet until he dies…”.
* The dates chosen are approximate and to some extent arbitrary. They refer to the Boshevik revolution, on the one hand, and Krushchev’s famous denunciation of Stalin at the 20th Party Congress, on the other. Systematic torture was abandoned in the Soviet Union from about that date.
* Robertson, op.cit. supra.
* Robertson, supra. p.263.
* The British Bae-owned Royal Ordnance sold 8000 of such devices to Saudi Arabia and the Scottish firm ICL Technical Plastics admitted to selling thousands to the Chinese.
* Maake and Makupe.
* After we shocked Maake to death.
* Milgram, Obedience to Authority,Tavistock,1974.
* The ANC, formed in 1913, had a long history of non-violence but after Sharpeville (1960) its leaders decided they had no option but to resort to violence. Even so, it was intended to involve severe restrictions, confining activity to state personnel and the state apparatus generally. But in the 1980’s the ANC embarked on a bombing campaign. It claimed that state instrumentalities were the target but many of those killed or injured were civilians.
* The Geneva Convention of 1949 had restricted obligatory answering by prisoners of war except for name, rank or number. Beyond that answering was voluntary. Of course coercion to obtain the rank, name or number of any prisoner was not permitted but refusal to answer could be made a criminal offence.
Bedlam was the hospital for the insane in eighteenth century London. It was believed that the mentally ill were not only incurable but insensitive to hunger, thirst, cold and pain. On quiet nights the noise of the confined lunatics ‘rattling in their chains and making a terrible outcry’ echoed across the city. During the day the inmates were on view for curious London sightseers, who paid to walk around the grounds enjoying the antics of the mad. It was understandable therefore that Hogarth, in his drawings of the Rake’s Progress, should have depicted Tom Rakewell as ending his days in Bedlam. What was, on the face of it more surprising, was that men such as Dr Johnson and Boswell and Sir Richard Steele should have visited Bedlam - even if only out of curiosity. But Steele, having to look after three school boys took them ‘to see the lions, the tombs, Bedlam and other places that are entertainment to raw minds’. As late as the final decades of the eighteenth century it appeared as if the Enlightenment had had no effect on this area of inhumanity.
The Middle Ages and the centuries that followed were by no means wholly obdurate towards insanity. Bedlam itself, as St. Mary of Bethleham Hospital was originally named, had been founded as long ago as 1247. In the thirteenth century it was subject to a Royal Commission which had found that only some of its inmates were ‘under duress’, although, in an inventory made in 1398, mention is made of chains of iron, manacles and stocks. ‘Poor mad men of Bethleham’ received an increasing number of bequests for their maintenance from the fifteenth to the seventeenth centuries. If, however, ‘the mad proved to be troublesome they could expect to be beaten or locked up; otherwise they might roam or rot’.*
It was, however, in the medical understanding of what caused mental abnormality that medieval Europe was dark, ignorant and superstitious.
More than 1500 years had elapsed since the Greek doctors, under the influence of Hippocrates had examined illness as a natural process, observed the patient and had kept accurate notes in case the same symptoms might be recognised in another patient. For a short time the religious or magical causes of disease were put aside. In the case of insanity the Greeks differentiated between paranoia, dementias, hypochondrias and other mental disease. Soranus, an Alexandrian physician of the first century, carefully examined mental illness as an ‘illness’.
Thereafter, medicine generally fell under the sterile and dogmatic influence of the Roman physician Galen (203 A.D.). From the destruction of Rome in the fifth century until Roger Bacon and the Moslem physicians in the thirteenth, medical research was suspended and medical help was administered by monks and priests. Illness was conceived of as having a religious origin. In the fifth century language of St. Augustine ‘all diseases of Christians are to be ascribed to demons, chiefly do they torment the first baptised, yea even the guiltless, new-born infant’.
The Black Death swept through Europe in the fourteenth century. The Pope felt obliged to consecrate the Rhone so that the dead could be more easily disposed of. It was not difficult in such an environment to imagine that the cause of the plague was due to witchcraft, for witches were supposed to disseminate diabolical infections.* It was superficially understandable that the mentally ill should be regarded as possessed by demons. The behaviour of the psychotic or neurotic often suggests to every day observation that the soul is possessed by some alien force. The mentally ill were thought to be afflicted by the devil and thus were treated by exorcism. Other treatments of a more or less benign character included the shaving of a cross in the hair of the victim’s head or the tying of the mentally ill person to the rood-screen in the church so that his or her condition might be improved by hearing Mass.
It is puzzling why the rise of science in the seventeenth century did not have a more immediately humanising effect. We know, for example, that witchcraft disappeared during the eighteenth century. One might have thought that with science the notion of insanity as diabolically caused would also have disappeared.
Certainly the Baconian revolution affected medicine. The Royal Society of Physicians was established. After fourteen years of experimentation, William Harvey (1578-1657) established the principle of circulation of the blood. Van Leewenhoeks (1632-1723) found in his microscopic film ‘little animals more numerous than all the people of the Netherlands’. And throughout the eighteenth century medical research resumed. It was a period of consolidation during which the magical sources of physical disease were rejected or discounted. It may be that, although it was recognised the cause of insanity was not demonic, it was simply not known what the causes could be. Inertia delayed rational inquiry.
One factor associated with seventeenth century science proved important in an adverse way. The most celebrated philosopher of the period, Descartes, taught that man should be divided into material body and immaterial mind and that these were entirely separate. The ideas in the mind come from God. Descartes therefore proclaimed them to be innate. This encouraged doctors and scientists to treat only the body as being subject to physical laws. The mind was spiritual. It was left to theologians, philosophers and spiritual advisers.
We may sum up attitudes towards the insane in the middle ages and until the Enlightenment, as follows: theology never denied the insane were ‘persons’ with a divine soul (the only exception was the case of certain ‘monsters’ at birth). Nor was the criminal law wholly unenlightened. In early English criminal law ‘absolute madness’ would relieve the insane person of criminal responsibility. Nevertheless, as much due to ignorance and a religious non-physical view of causation as to deliberate cruelty, the insane were regarded as either mad but harmless, as for example the village idiot, or as being infected by the devil and therefore incorrigibly bad.*
As was so often the case, humanitarian change was brought about by a few. Foremost was Dr Philippe Pinel (1745-1826). Pinel was physician to Biútre prison in Paris where a large number of lunatics were housed. It was an incident occurring to a friend which led him to his life’s work. The friend suddenly lost his mental balance and, as was customary, was locked up in an asylum. He managed to escape from his cage and took refuge in the woods. A week later his body was found, half devoured by wolves. Pinel decided to devote himself to the study of insanity and to the improvement of its treatment.
What then took place is described in an extended passage by Kenneth Walker in his ‘The Story of Medicine’.* It is worth quoting in full:
“Even in Pinel’s time the insane were regarded as being deliberately malicious and many people still attributed their behaviour to their possession by a devil. If, therefore, exorcism failed to expel the devil, the correct treatment was to punish them for their stubbornness in clinging to evil. Pinel reacted with all his being against this medieval idea of possession, for he was convinced that the insane were sick people in need of treatment. He initiated a crusade for the more merciful treatment of the insane by liberating the less violent of his own patients, and after the French Revolution had taken place he petitioned the Commune to allow him to appear before it in order to plead the citizen rights of his patients. Again and again the petition of this ridiculous doctor who wanted to liberate maniacs was refused, but finally Couthon, the fiery leader of the Commune, agreed to see him. Pinel pointed out to him that if it were true, as the Revolutionaries had declared, that all men possessed equal rights, then his poor insane patients in the Biûtre prison also had their rights. Yet they were kept chained up in verminous dungeons and were far more cruelly used than the common man had been formally used by the aristocrats. Couthon regarded Pinel as an impractical visionary but because an appeal had been made to his own favourite theme, the equality of man, he agreed to accompany the doctor back to Biûtre. There he witnessed sights which made an immense impression even on a brutal and cold blooded revolutionary leader. As he tramped with his guide through the damp underground corridors of the dark prison he was greeted by the ravings and the curses of 300 mad men and was deafened by the pounding of their manacles against iron bars. He exclaimed to Pinel: ‘ah ca! Citoyen es tu fou toi-meme devouloir dechainer de pareiles animaux?’ Pinel insisted that this was his wish, to liberate his patients and to accord them their citizen rights. Couthon left hurriedly, his final words being: ‘do as you will, but your own life will be sacrificed to this false mercy’.
Then came the dramatic and fateful moment. Pinel’s first act was to have the manacles knocked off an English captain who had lived in chains for forty years and who in spite of this had managed to kill a prison attendant with a blow from his manacles. Before Pinel freed him, he talked to him sitting alone with him in his cell, offering the captain the freedom of the prison yard in return for his promise ‘to behave like a gentleman’. The promise was given and the chains were knocked off. Within the space of a few days, Pinel had the chains removed from more than fifty men who had hitherto been regarded as dangerous mad men. They still remained insane but because they were being treated kindly they ceased to be rebellious and disorderly.”
Pinel became a physician at the asylum of Salpiêtrière at which he did away with old violent methods of treatment such as bleeding, purging and blistering. He published his Trait Medico-Philosophique sur L’asienation Mentale ou la Manie, in 1801. It is one of the classics of psychiatry. He did much to end what he himself described as ‘the moral treatment of the mad’.
About 1800 - taking that date rather broadly - attitudes towards the insane began to change. It became accepted that insanity was not diabolically caused but, like other illnesses, fell within the realm of medical explanation and medical treatment. The science of abnormal psychology was born. Further, the insane were treated as human beings and became cared for with compassion. The State began to assume a responsibility for that care.
In England, lunatics had been chained up, flogged and half drowned in wells where the water gradually rose to their chins.
Shortly before the end of the eighteenth century the Society of Friends opened a hospital for the insane at York. It was the first in England to treat the insane by humane methods. It was, as in the case of Pinel, something of an act of faith. The success of the treatment at York contrasted with the more brutal treatment in other asylums (the ‘Retreat’ as it was called, was still in operation in the twentieth century). The success of the York hospital aroused public feeling. Lord Shaftsbury (then Lord Ashley) set out to reform the chaotic and inhumane system of lunatic asylums which then existed. Lunacy Commissioners were appointed but the House of Lords obstructed the passage of the Improvement Bill. It was only in 1828 that a Bill was enacted providing for supervision by Metropolitan Commissioners - Ashley being appointed the first commissioner - and also for the certification of those to be admitted to lunatic asylums.
Of the humanitarians who led in this field the most prominent were the Tuke family. It was William Tuke, who in 1792, had projected the Retreat at York under the management of Friends. His grandson, Samuel Tuke (1784 - 1857) published a work in 1815 on ‘Practical hints on the Constitution and Economy of Pauper Lunatic Asylums’ which was immediately influential. Daniel Hack Tuke (1827 - 1895) studied medicine and became resident physician at the York Retreat. In 1858 with J. C. Bucknill he published ‘A Manual of Psychological Medicine’ which for a considerable period became a standard work.
In the United States Dorothea Dix performed the same humanitarian task as the Friends in England, founding in all, 32 well-run asylums.
The study of the mind – psychology – continued to form part of philosophy until the end of the nineteenth century when it was conceded to be a separate department of knowledge. From the beginning of the century there were various attempts to apply observation to mental behaviour and draw generalisations. Some of these were by no means fruitful as, for example, the phrenology of Franz Joseph Gall. But the expanded study of chemistry and physiology affected the study of the mind and then naturally abnormal psychology. Experimentation on mental behaviour commenced with Weber. It was in this context that psychiatry as an area of medicine, began. In 1899, Emil Kraepelin, identified the condition dementia praecox in which a person loses touch with reality and distinguished it from the manic depressive psychosis. Madness had been freed from superstition. The psychiatrist was in this, as in other areas, concerned to cure or relieve.
In the meantime legislation in England and elsewhere placed the care of the insane on an organised and humane basis. The Lunacy Act 1890 provided that, subject to a limited number of exceptions no lunatic* could be lawfully detained against his will except under an order of some person authorised by law. Provision was made for asylums and other places to care for the insane and also for their frequent inspection. Whilst a relative or friend would be allowed to take care of a lunatic this would only be so if a Justice were satisfied that the lunatic would be properly cared for. Unnecessary restraint of a lunatic was an offence and the use of mechanical means of restraint prohibited unless it were necessary for medical treatment or the prevention of injury.
As is generally known, the social experiment of isolating the insane in institutions for treatment largely failed. Successful treatment required a friendlier environment and, in some cases, involvement in the wider community. Gradually the asylums were dismantled. But their purpose and the purpose of confining the insane was at all times for their treatment or in certain circumstances for their protection and that of the community.*
In the meantime the English had revealed a more rational and sensitive attitude to insanity in a different field. In 1800 James Hadfield was charged with High Treason for shooting at King George III in the Drury Lane Theatre. Hadfield had previously been severely wounded about the head and had been confined as a lunatic. He was filled with wild delusions. Neither of the shots injured the King. It would seem that Hadfield was under a delusion that for the world’s salvation it was necessary for him to sacrifice himself. Hadfield’s case is significant for the address by his counsel - Erskine, later Lord Erskine - who set out a rational defence based upon Hadfield’s insanity and achieved an acquittal.
In 1843 Daniel M’Naughten shot and killed Edward Drummond, Sir Robert Peel’s private secretary, mistaking him for Sir Robert Peel. The jury was asked at the trial ‘whether … the prisoner had or had not the use of his understanding so as to know that what he was doing was wrong and wicked …’ M’Naughten was acquitted. This caused great public dissatisfaction. The Judges were asked by the House of Lords to lay down the rules relating to insanity. In response they said that ‘where the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act, or, if he did know it, that he did not know his doing what was wrong, that should be a defence.’
The M’Naughten rules are now considered to be unsatisfactory in the light of modern psychiatry. At the time, however, they represented a civilised advance in the treatment of criminal responsibility in relation to the mentally ill.
The century between Pinel and Freud bridged a great gulf in human understanding. At its inception, insanity was believed to be diabolically caused. At its end, it was generally recognised that the insane were human beings who were ill.
In the treatment of the insane we reach the intersection of reformist and philanthropic humanitarianism. The rational recognition that the insane are fully human, are not diabolically controlled and the legislative provision to protect and rehabilitate them belong within the traditions of the humanitarian movement we have been describing. The care and attention to be given them was the humane response which had always been provided for the physically ill.
* Andrew Scull, The Most Solitary Afflictions, and Museums of Madness: Social Organization of Insanity in 19th century England, Penguin, Harmondsworth, 1979.
* In 1390 the Holy Inquisition decreed that witchcraft should be treated in the same way as heresy.
* Andrew Scull said of attempts by writers, such as Foucault, to idealise the middle ages, that ‘the facile contrast between psychiatric oppression and an earlier, almost anarchic toleration is surely illusory’.
* 1959, Arrow Books, pp.293-294.
* The pejorative term ‘lunatic’ was replaced by ‘a person of unsound mind’ in 1930 and by ‘mentally disordered person’ in 1959.
* Michel Foucault’s thesis that the confinement of the insane in asylums was an attempt by one-dimensional rational humanity to expel the ‘Other’ does not withstand historical examination. That was never its purpose. See Andrew Scull, supra, M. Foucault, Madness and Civilisation in the Age of Reason, Vintage, New York, 1988.
In England, in 1800, the rights of a women devolved upon her husband on marriage. She could not make a will or be party to a contract or appear in Court. The wifes’ personal chattels automatically became the property of the husband. As John Stuart Mill writing in the 1860’s said, ‘she could acquire no property but for him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his’. The husband’s authority to chastise her physically had been modified somewhat from when Blackstone had written in the eighteenth century but she had almost no legal redress even if treated brutally. ‘Husbands’ – John Stuart Mill wrote – ‘indulge the utmost habitual excesses of bodily violence towards the unhappy wife, who alone, at least of grown persons, can neither repel or escape from the brutality’. For all practical purposes divorce was unobtainable (it could be secured in the case of the husband’s adultery by the following procedure --- first, the wife must have been successful in proceedings against the husband for criminal conversation, she would then need to get a decree for divorce a mensa et thoro from the ecclesiastical Court and, finally, she must have procured the enactment of a private Act of Parliament declaring the husband and wife divorced).* The only judicial decree available was judicial separation which left the parties married but physically separated. In that event, her husband had almost an absolute right to the custody of the children. Lord Lyndhurst on the second reading of the Matrimonial Causes Bill described the wife’s condition on judicial separation as pitiful, saying that ‘from that moment (she was)… almost in a state of outlawry’.
Mill described a married woman as ‘the actual bond servant of her husband’. The single woman was in no better position. She could not get higher education, could not get admitted into the professions and could not get any substantial occupation other than teaching. As Jane Austen wrote in Emma (1816), ‘a single woman with a very narrow income must be a ridiculous, disagreeable old maid’. The dreary routine of an unmarried woman was described by Miss March Phillips as ‘to nurse mother if she is ill …or teach her little brother to read … to dress as well as she can and to play on the pianoforte’.
This state of crippling subordination remained without protest by the humanitarians for almost half a century. Why was this so?
Mill stated this puzzle precisely:
“The social subordination of women thus stands out as an isolated fact in modern social institutions… a single relic of an old world of thought and practice exploded in everything else… For what is the peculiar character of the modern world – the difference which clearly distinguishes modern institutions, modern social ideas, modern life itself, from those times long past? It is that human beings are no longer born to their place in life and chained down by an inexorable bond to the place they are born to, but are free to employ their faculties” (italics added)
This is both pure Enlightenment and pure humanitarian thinking. Why then was it that until the latter half of the century the humanitarian movement failed to take up the cause of women?
One consideration was the attitude of the Church and of historical christianity to marriage and the patriarchal character of the family.
Marriage was a sacrament. From the twelfth century, canon law had imposed itself upon customary law which might have allowed an innocent party some rights. Canon law confirmed that marriage was indissoluble. This was part of the law of Europe including England, which had for long vested jurisdiction in the Ecclesiastical Courts for the ‘cure of souls’, including matrimonial causes. It was in this context that the law defined the status of ‘married woman’, attaching a range of disabilities relating not only to her husband but also to her children and property. These were a natural expression of the functional view of society which was the prevailing medieval philosophy. It was the wife’s duty to bear and rear the children and the husband’s to provide and protect. These historical considerations are important but do not in themselves explain the hostility of the evangelicals to removal of the disabilities from which women suffered.
The first stirrings of feminism occurred at the time of the Revolution even though Rousseau, in defiance of his own principles, did not concede equality to women.* Neither the United States Declaration of Independence (1776) nor the French Declaration of the Rights of Man (1789) extended to women. Nevertheless, it was in the language of the Revolution that the first feminist work was written. Mary Wollstonecraft, then about 33, published ‘Vindication of the Rights of Women’ in 1792.* It was a clear and articulate claim that women had rights. It was a protest against the assumption that ‘women were only the plaything of men’. She accused men of having made women ‘only fit for the seraglio’ and ‘confined them in cages like the feathered races, they have nothing to do but plume themselves’. Her book did not attack marriage as an institution. It was very much a plea for equality in education. But its publication caused an outcry.
As we have said, Mary Wollstonecraft wrote in the language of the Revolution. She spoke of ‘rights’. At the time of her death she was engaged on a work entitled ‘Historical and Moral views of the French Revolution’. The evangelicals could not abide her. Hannah More described her as a ‘disgusting and unnatural person’.
The evangelicals hated the Revolution and everything associated with it. It was identified with the gaiety and looseness of eighteenth century Paris. They viewed life seriously. In 1781 Bishop Porteous had secured an Act of Parliament banning amusements on the Sabbath. It was the evangelicals, more than any other group, who were responsible for the ‘Victorian family’. It was heavily patriarchal and bolstered by a severe sexual morality. The Victorian image of women as soft and clinging and in constant need of protection was essentially evangelical. The evangelicals condemned consensual divorce which had been introduced into France in the early years of the Revolution.
The evangelicals were supported in this by the educated women of the period; even by those who had sought to make a life for themselves outside marriage. Hannah More, whom we have mentioned, engaged in religious and philanthropic activity but was rather apologetic about it. In her ‘Strictures for Young Females’ she commended ‘the animated silence of sparkling intelligence’; she thought an occasional ‘innocent question’ was ‘in many cases as large a share of the conversation as it is desirous for female delicacy to take’. Queen Victoria, herself, was to describe women’s rights as ‘mad, wicked folly’**
What lay behind this was, in the words of G.M. Young, the notion of the ‘Two Spheres’. In English society the world of business and politics was to be the world of men; the home, the family and charitable work was the world of women. It was described by Tennyson in his poem ‘The Princess’ (1847):
“Man for the field and women for the hearth
Man for the sword and for the needle she
Man with the head and women, with the heart
All else confusion"
Just before the half century we see the first stirrings. The Chartists included female suffrage among their proposals (1838); Mrs Henry Reed published ‘A Plea for Women’ (1843). A spate of pamphlets demanding suffrage for women followed. The first steps were taken in the Commons to secure the female vote. In the 1850’s the pace quickened with the formation of feminist committees. In 1857 Florence Nightingale returned from the Crimean war to establish the nursing profession in defiance of the ‘Two Spheres’. In the same year the Matrimonial Causes Act was passed allowing the husband to divorce his wife on the ground of adultery and the wife to divorce her husband if the adultery were aggravated.
One person stands out at this point in the history of the emancipation of women – John Stuart Mill. He had long favoured the women’s cause, a position opposed by his father, James Mill, and only supported by Bentham in a lukewarm way. In 1865 he was asked to stand for Parliament as the representative for the City of Westminster. He won the seat. On 20 May 1867 he moved an amendment to the Reform Bill to give unmarried female landholders the vote on the same conditions as men. It was defeated 123 to 73 but the result was encouraging. Mill explained his view of the importance of the franchise in a letter to Florence Nightengale on 31 December 1867; ‘what however constitutes an even more pressing and practical reason for endeavouring to obtain the political enfranchisement of women instead of endeavouring to sweep away any or all their social grievances is that I believe it will be positively easier to attain this reform than to attain any single one of all the others, all of which must inevitably follow from it.’*
In 1869 Mill published ‘The Subjection of Women’. It was a sustained and brilliant protest at the inequality and inhumanity of the condition in which society had placed women. The book was, as Mill had expected, ridiculed. It was the only book he wrote which did not make money. And yet it became the philosophic base of the nineteenth century Women’s movement.
His position was declared on the first page ‘that the principle which regulates the existing social relations between the two sexes – the legal subordination of one sex to the other – is wrong in itself and one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power of privilege on the one side, nor disability on the other’.
He repudiated the suggestion, then commonly made, that there were ‘natural’ differences between the sexes which were insuperable. In the Commons debate on his Bill, one Mr Laing had expressed this point of view stating, ‘between the two sexes it was abundantly evident that nature had drawn clear lines of distinction.’ Mill called for the removal of all disabilities imposed upon women and ‘the opening to them of all honourable employments, and the training and education which qualifies for those employments’.
It must not be supposed that Mill was on his own. He was supported by the Christian socialists, notably Charles Kingsley, and by Charles Dilke and John Morley.
In 1869, the year in which Mill’s work was published, Sophia Jex Blake was given permission to attend medical lectures at Edinburgh University. Male students were furious and what became known as the ‘Riot at Surgeon’s hill’ occurred when the female students were pelted with mud and sheep were ushered into the lecture theatre. Cambridge began admitting women in the 1870s. Oxford was slower initially but was the first to allow women to take degrees. Primary and secondary education had hitherto been denied to women. The Education Act of 1870 however imposed compulsory education for girls as well as boys.
In 1882, with the enactment of the Married Women’s Property Act, married women became able to retain and own beneficially their own separate property. It was, however, in the fields of divorce and maintenance for her support, that the wife remained in an oppressively unequal position. So much so that throughout the latter part of the nineteenth century the European novel depicted the ‘prison’ in which the wife was restrained and the tragic consequences which resulted: Anna Karenina suicides; Tess of the D’Urbevilles is executed for murder and Irene Forsyte only escapes from her unhappiness after her distracted lover is killed.
Adultery was the only ground for divorce provided by the 1857 Act. The husband’s desertion or cruelty or insanity did not avail her. And whereas the husband could obtain a divorce on the ground of a single act of adultery, the wife had to prove something more, either a repeated act or aggravating circumstances such as desertion for two years. This inequality seemed to depend upon a view that adultery was more heinous in the case of a woman. This was said to be so because illegitimate children might be introduced into the family through it and in any event it was thought wives should be more forgiving of adultery than husbands. Unsuccessful attempts to alter this were made in the Commons. In 1912, a Royal Commission, by a majority, recommended that the law place husbands and wives on a footing of equality but Parliament remained unmoved.
Maintenance for her support represented another difficulty faced by a wife seeking a divorce. Even after obtaining the divorce she had difficulty in securing maintenance and, for about 30 years after the Divorce Act, payment would be ordered in favour of an innocent wife only so long as she remained chaste and unmarried.
Addressing the House of Lords during the 1920s in one more attempt to redress this, Lord Birkenhead asked, ‘what is the remedy open to a poor woman who, when she married, gave up the pitiful pursuit by which she had made her living until her marriage, and relying on the marriage, is left penniless, and is left for the whole of her life unable to obtain the slightest relief from the law? We are told that such a woman as I have described is to remain chaste … Those who have spoken in opposition to the present proposals say – “we deny you any hope in this world. Though an honest man loves you, sin will be the price of your union, and bastardy the fate of your children”.
Only in the second quarter of the twentieth century were these inequalities modified and eventually removed. By 1950 the husband and wife were in an approximate state of equality in matrimonial law. This equality, however, in no way implied that the marriage could be consensually terminated. The marriage could be dissolved only upon proof of a ‘matrimonial offence’. The offending spouse must have been guilty of sin. Though the signs of disintegration were about, the patriarchal family remained substantially intact in Europe despite the formal equality between husband and wife.
If we may turn to women and public law. In 1900 women in England still had not the vote notwithstanding Mill’s pioneering work. Certain European countries, New Zealand (1893); South Australia (1894); and Western Australia (1899); and a number of American States had allowed the vote to women but not England.
After John Stuart Mill’s death in 1874 suffrage Bills continued to be introduced but were just as regularly defeated. The trouble was that although Liberal Party members supported female suffrage and, indeed, party Conferences pledged their support, the Party leaders, notably Gladstone and Asquith, were opposed. Women were bitter. This was especially so when Gladstone refused to countenance the inclusion of women’s suffrage in the 1884 Reform Bill.
In the face of this parliamentary barrier the effort slackened. Some prominent women even began to voice their personal opposition to the vote. Mrs Creighton, for example, writing in ‘The Nineteenth Century’ said of women that ‘it is given her to make or mar a man’s life … she will be a greater power if she is not struggling for her rights, but is trying to live her own life nobly and unselfishly’.
It is by no means clear how the militant suffragette movement erupted. Whatever else, the issue was thereafter, no longer a mere debating society subject. “The Women’s Social and Political Union’ founded by Mrs Pankhurst in 1903 was a dictatorship. Her followers belonged to an army. What followed were a succession of protests, more or less violent. Mr Lloyd George’s house was damaged by a bomb; women chained themselves to Parliament; sat on the doorstep of 10 Downing Street; and in 1906 interrupted the King’s opening speech to Parliament. Mrs Pankhurst and others went to prison. Asquith’s blockage of legislative reform in 1910 led to hunger strikes. Emily Davidson lost her life when she threw herself under the King’s horse on Derby Day in 1913.
We will never know where the militant movement would have taken the issue. The First World War intervened. Political action ceased. Women rallied to the war effort, becoming nurses and drivers of buses and trains.[ The decision to call off action was made by Emmeline Pankhurst and her daughter, Christobel, whilst in Paris together. There were some dissidents but the movement in general supported the decision, see Emmeline Pankhurst, A Biography,Routledge.] They replaced men in factories. In 1916, Asquith, overwhelmed by the evidence of feminine capacity, relented and agreed to legislation. By 6th February 1918, with Royal assent to the Bill, women had won their long and arduous fight. By that same Act they were allowed to sit in Parliament and by related 1919 legislation – the Sex Disqualification (Removal) Act – women became entitled to hold civil and judicial office.
Such legal disabilities as there had been all but disappeared over the next 30 years and, aside from ordination as priests, there was no profession or occupation from which women were excluded. Equal pay though was not achieved in England or Australia until the 1970s.
Other western European countries followed a different course but one that was not substantially dissimilar in the result.
What had been achieved was that “married woman”, as a distinct legal status, had been abolished in Europe. At one level it is possible to describe this change simply in terms of the principle of equality. In the same way it could have been said that slaves were merely treated unequally, that serfs were also only in a situation of inequality. And in the case of women, if we take each issue in isolation – the grounds for divorce, control of the children, access to the professions or equal pay for the same work – it is possible to judge each adequately in terms of equality. But if one looks at the totality of disabilities suffered by women it is evident that it is not merely a matter of inequality. Women were denied the capacity to explore their potential or exercise that minimal autonomy essential to a complete human being.
Nevertheless, the elimination of the discriminatory status which humanitarianism achieved did not lead to any immediate change in fact in the position of women. As Germaine Greer was to put it a century later ‘the cage had been opened but the canary refused to fly out’.*
The central reason for this was that the family as an institution, and the roles of men and women within it, remained unchanged. John Stuart Mill had indeed assumed this would be the case. He considered that ‘so long as marriage did not imply the obligation of obedience it may in general be understood that she (the wife) makes her choice of the management of the household and the bringing up of the family (and) she renounces occupations inconsistent with them’. In so far as he supposed women would voluntarily accept a continued state of subordination, he was wrong, but for a long time the pressures of convention, economic necessity, male intransigence and female inertia left the family unaffected. Even so, as early as 1879, Ibsen’s ‘A Dolls House’ signalled a quite new and different emphasis.
“Nora: What do you
call my most sacred duties?
Helmer: Do I have to tell you? Your duties towards your husband and your children.
Nora: I have another duty which is equally sacred.
Helmer: You have not. What on earth can that be?
Nora: My duty towards myself.
Helmer: First and foremost you are a wife and a mother.
Nora: I don’t believe that any longer. I believe that I am first and foremost a human being , like you - or anyway that I want to try to become one.”
What is clear is that Nora is not concerned with ‘rights’ or ‘disabilities’. Her claim to be a human being – a claim founded upon autonomy – may have depended upon these to some extent but that is not what she was about. She rejected not only the constraints of Victorian mores but also Mill’s supposition that the emancipated women would be content to remain an adjunct to the family. To pursue her individuality meant jettisoning the family as being the only place within which a woman could make her life – and, within that family, the unchallenged authority of the husband. In a sense it was Nora’s cry, made in 1879, which was taken up by the Woman’s movement in the 1960’s. To escape the constraints of the family meant nothing less than a revolution in the family and in the social relationships of men and women. The new wave of feminism travelled beyond humanitarianism. It sought a change in the power relationship between men as a class and women as a class.
* “An unhappy marriage! No ill-treatment – only that indefinable malaise, that terrible blight which killed all sweetness under heaven; and so from day to day, from night to night, from week to week, from year to year, till death should end it … There was no reason why they should not jog along, even if they hated each other.” John Galsworthy The Forsyte Saga, Heinemann, pp 174-175
* For a more complete account of gender bias at the time of the Revolution and of feminine reactions, see Davies, ‘Europe’, Pimlico, p.716.
* Included though were some severe criticisms of Rousseau.
* Letter, 29/5/1870.
* There were of course exceptions even in the early part of the century: as, for example, women such as Mary Shelley (Mary Wollstonecraft’s daughter). Shelley, her husband, strongly condemned the servitude of women:
man be free if woman be a slave?
Chain one who lives, and breathes this boundless air,
To the corruption of a closed grave!
Can they whose mates are beasts, condemn to bear
Scorn, heavier far than toil or anguish, dare
To trample their oppressors? In their home
Among their babes, thou knowest a curse would wear
The shape of women …”
And there were exceptional couples such as George Eliot (Marion Evans) and George Lewes.
* “But remember the date of this evening: April 6th 1867. At Westminster only one week before John Stuart Mill had seized an opportunity in one of the early debates on the Reform Bill to argue that now was the time to give women equal rights at the ballot box. His brave attempt (the motion was defeated by 196 to 73, Disraeli, the old fox abstaining) was greeted with smiles from the average man, guffaws from Punch (one joke showed a group of gentlemen besieging a female Cabinet Minister, haw haw haw), and disappearing frowns from a sad majority of educated women, who maintained that their influence was best exerted from home. Nevertheless March 30th, 1867, is the point from which we can date the beginning of feminine emancipation in England.” John Fowles, ‘The French Lieutenant’s Woman’, Signet, p.95. Fowles would seem to be incorrect as to precise dates; see A Century of Family Law 1857-1957, Secker and Warburg, ed. Graveson p.262, see Hansard 3rd Series Vol 187, Cols 817 and 825 but the substance is accurate.
* Greer, ‘The Female Eunuch’, MacGibbon and Kee, p12
Before the nineteenth century cruelty to animals was quite generally indulged in for popular amusement. Henry VIII was himself very fond of cock-fighting, as was James I. James appointed a special cock master to breed and train his cocks. Sometimes brandy was given just before a fight to provoke their spirit. In 1607 a Norfolk vicar wrote a commendation of the sport. Puritans protested but they did not do so on the ground of cruelty but because cock fights were held on a Sunday. Cock fighting continued until well into the nineteenth century, often in conjunction with horse racing. As late as June 1, 1822, the Times advertised, ‘A main of cocks will be fought on Monday 3 June at the Cockpit Royal Tyburn Street Westminster between the gentlemen of Middlesex and Shropshire for five guineas a battle and fifty guineas for the best battler’
A variant of cock-fighting was the throwing of cocks in which the cock was partly buried in the ground or fastened to a stake and stoned to death.
In the seventeenth century a special amphitheatre had been built at Paris Gardens, Southwark, for bull and bear-baiting. Seating was provided for 1,000 spectators. Later, a second ring was built exclusively for bear-baiting. In villages, a bear would be chained to a stake on the village green and there set upon by dogs of all kinds.
Maltreatment of animals was due partly to cruelty and partly to indifference. Nevertheless, it was encouraged, or at least not discouraged by European thought. Other civilisations have had a positive attitude towards the treatment of animals The Chinese, for example, from an early stage enjoined kindness to animals. Kan-Yung-P’ien (the book of Deeds and Rewards), a popular work of the Sung Dynasty (960-1227), goes furthest in its demands for compassion towards animals: ‘Have a pitiful heart for all creatures. If one sees animals in need one must take heed to keep them and preserve their lives.’
The stoics however taught that the universe exists only for rational beings and they thus excluded any relationship between humans and animals.*
Jesus appears equivocal in the New Testament. In Luke he is reported as saying, ‘are not five sparrows sold for two farthings, and not one of them is forgotten before God?’ and he adds ‘ye are of more value than many sparrows’. Nevertheless he recognised that the birds belonged to and were not forgotten by God.
Apart from scriptural literalism, it may have been thought that the New Testament ethic of compassion would embrace animals, but Paul absorbed stoic philosophy on the relationship between humans and animals and drew a clear distinction between God’s concern for man and for other animals. Paul also relied upon scriptural authority citing Deuteronomy, and asked rhetorically, ‘Doth God take care of the oxen?’.
The Pauline-stoic position was reinforced by the authority of St. Augustine in the fifth century:
“Christ himself shows that to refrain from the killing of animals and the destroying of plants is the height of superstition for, judging that there are no common rights between us and the beasts and trees, who sent devils into a herd of swine and with a curse withered the tree on which he found no fruit”.
St. Augustine pointed out that ‘the swine had not sinned nor had the tree’.
This became a standard Christian teaching. Aquinas taught that a callousness towards animals was wrong not because it was wrong in itself but because it might lead to indifference to human suffering.
There was an additional argument advanced by the stoics and supported by Aquinas. It was that the killing of animals and their related suffering was justifiable in so far as it was necessary to preserve human beings. This argument based upon a hierarchy of importance in living things is conceptually distinct from the proposition that animals lacked an immortal and divine soul by virtue of which they were excluded from God’s realm.
The Church held that man could do more or less what he liked with animals. St. Francis whose love of animals was displayed throughout his life had no influence on Christian philosophy. The Catholic tradition was enunciated by Leo XIII in Rerum Novarum:
“But animal nature, however perfect, is far from representing the human being in its completeness, and it is in truth humanity’s humble hand maid, to serve and obey. It is the mind or reason, which is the predominant element in us who are human creatures; it is this which renders a human being human and distinguishes him essentially and generally from the brute”.
As late as the middle of the nineteenth century Pope Pius IX refused to allow a Society for the Prevention of Cruelty to be established in Rome, on the ground that to do so would imply that human beings have duties towards animals.
Whatever their other differences the Church and John Locke were agreed that, in Locke’s words, a ‘person’ was a ‘thinking, intelligent being that has reason and reflection’. Descartes (1596-1650), the most influential philosopher of the Age, drew the most extreme conclusions from the ‘soul-less’ character of animals. Descartes held all matter to be governed by mechanistic principles. The human body was matter and therefore machine-like. But human beings had a soul (which Descartes equated with consciousness). This was not governed by mechanistic principles. Only human beings possessed a soul and therefore non-human animals were pure matter. Non-human animals were thus governed solely by mechanistic principles. Accordingly, when animals appeared to be suffering, this was not really so. They were emitting sounds as if in response to a lever. For to allow them feelings would mean that they were conscious and therefore had a soul, which was contrary to scripture. Descartes thus accepted without qualification experimentation on animals.
As to this, Voltaire, giving expression to Enlightenment humanism, wrote that ‘there are barbarians who seize this dog, who so greatly surpasses man in fidelity and friendship, and nail him down to a table and dissect him alive, to show you the mesariaic veins! You discover in him all the same organs of feeling as yourself. Answer me mechanist, has nature arranged all the springs of feeling in this animal to the end that he might not feel?’*
The first writer in Europe since Roman times to condemn cruelty to animals as a wrong in itself was the French essayist, Montaigne (1533-1592). In his essay on ‘Cruelty’, he wrote that ‘we have a general duty to be humane’ to animals and that it is a presumption that man ‘withdraws and separates himself from the crowd of other creatures’.
In the eighteenth century David Hume argued that human intelligence and animal intelligence functioned in the same way. He said that ‘we should be bound by the laws of humanity to give gentle usage to those creatures’. Neither Hume nor Montaigne suggested it was sufficient for humans to act merely justly towards animals. It is not, Hume said, ‘the cautious, jealous virtue of justice’ but humanity. Hume led to Bentham. More than anything else it was Bentham’s philosophy and active persistence that resulted in the changed attitude towards animals.
In his ‘Introduction to the Principles of Morals and Legislation’, Bentham wrote:
“The day may come when the rest of the animal creation may acquire those rights which never could have been withdrawn from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognised that the number of legs, the vellosity of the skin, the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day, a week or even a month, old. But suppose they were otherwise, what would it avail? The question is not, can they reason? Nor, can they talk! But, can they suffer?”
This magnificent passage set the tone for humanitarian action for prevention of cruelty to animals in the early part of the century.
In 1811, Lord Erskine (1750-1823), in a speech before the House of Lords, portrayed the cruelties inflicted upon animals and asked for protective legislation.
In 1821, Richard Martin, a land-owner of Galway, proposed a law to prevent the ill-treatment of horses. The Bill was laughed out of the Commons. In the next year he secured the passage of the Ill-treatment of Cattle Bill. It prohibited the cruel treatment of cattle and for persons who wantonly and cruelly beat, abused or ill-treated any horse, mare, ox, sheep or other cattle it provided for the imposition of a fine of five pounds or imprisonment for three months.
There was however nobody to enforce the legislation. Martin and a number of notable humanitarians formed a Society on 16 June 1824 which had as its immediate purpose the gathering of evidence of the maltreatment of animals. Among the first members were the evangelicals William Wilberforce and Thomas Fowell Buxton. This Society later became the Royal Society for the Prevention of Cruelty to Animals, being designated ‘Royal’ by Queen Victoria in 1840. It became the leader in campaigns against brutal sports, experimentation and other forms of cruelty to animals.
It was also this Society which set up the National Society for the Prevention of Cruelty to Children. Cruelty to children first became an active issue in New York in the Mary Ellen case (1874). In that case a foster mother could not be punished or judicially restrained in a case of mistreatment. The child had to be rescued under the Cruelty to Animals Act which was legislation modelled on the English legislation. In England the Prevention of Cruelty to Animals Association campaigned for separate legislation to protect children. In 1884 the first Prevention of Cruelty to Children legislation was enacted in England. In the same year the National Society for Prevention of Cruelty to Children was established.
The Animal Prevention Society campaigned for improved cruelty to animals legislation, building on that of the 1822 Act. In 1849 the Cruelty to Animals Act imposed forfeiture and penalties for the ill-treatment of animals. This law, together with the 1854 amendment, became the foundation of all future legislation in England and the model for other common law countries. In 1876, further legislation specifically extended the Cruelty to Animals Act to experimentation upon animals for scientific purposes, where the animal is alive and the experiments are calculated to inflict pain. Subsequent legislation regulated vivisection requiring it to take place at a registered place and for an approved purpose. The failure of the United States to enact comparable legislation has resulted in horrific treatment of animals in the course of experimentation on animals, recounted by Peter Singer in the second chapter of his work ‘Animal Liberation’.
What Bentham achieved was much more than legislation. Over the course of the next century there was a revolution in social attitudes throughout the European world to the treatment of animals. Henceforward cruelty to animals would occur but it was never defended. It became recognised that the deliberate or unnecessary infliction of pain upon animals was wrong.
Nevertheless, and despite this achievement, the Benthamite position on animals was curiously incomplete. It is clear that animals are entities of some moral significance or else they would have continued to be treated, in accordance with European thought, as mere adjuncts to human advantage or even amusement. But was that moral significance restricted to their capacity, as sensate beings, to experience pain and pleasure?
Bentham himself seems not to have taken it further. In the case of meat-eating he applied the utilitarian test and reached the dubious conclusion that animals did not suffer in the course of being killed for human food and therefore the eating of animal meat was ethically acceptable.
A question arises which we are compelled to consider in
relation to humanitarian idea. That idea
depended historically on the significance of the ‘human’ person. What is the basis for its extension to
non-human animals? Does it require
re-appraisal of the concept of the person?
The most recent and comprehensive examination of ethics in the treatment
of animals has been made by the philosopher, Peter Singer. The question, it is there argued, is not
about animal interests, even less about ‘rights’ or equality, but to what
extent, if at all, it is ethically justifiable for humans to use animals for
* Ulpian, a Roman Jurist, who was referred to in Justinian’s Code, suggested that natural law derived from instincts common to humans and animals. This ‘unlucky’ phrase, as Pollock described it, may have been influenced by the Pythagoreans who saw no division between Man and animals. The comment became incorporated into the Institutes. It was however totally out of accord with stoic teaching generally on natural law, Vinogradoff, Common Sense in Law, H.U.L., p.236.
* Dictionnaire Philosophique.
* This historical sketch has drawn upon the Encyclopaedia Britannia and Animal Liberation by Peter Singer, Pimlico Edition, 1995.
The Crimean War was the first European war for forty years. During that period infantry weapons developed greatly in range and rate of fire. Notwithstanding this, no provision was made by the authorities in the field for the potential increase in the wounded and for their care. The British army went to the Crimea without a medical corps or medical service. In the barracks hospital at Scutari the spread of cholera, gangrene and dysentery raged uncontrolled. William Russell of The Times, the first modern war correspondent, described the appalling conditions at the Front. Twenty-Five thousand lives had been lost. Public opinion was aroused. The Secretary of War persuaded Florence Nightingale, who had administered a sanitarium in London, to organize a corps of nurses to go to the Crimea. She did so and brought the death rate in Scutari Hospital down by forty per cent. She claimed sixteen thousand of the dead could have been saved by better nursing. Her nursing corps became the foundation of modern nursing.
But ,also, for the first time attention became focused on the plight of the wounded.
A terrible battle took place at Solferino in 1859 during the campaign by France and Piedmont against the Austrian Empire. Three hundred thousand soldiers fought. Six thousand were killed and thirty thousand wounded in the space of fifteen hours. The wounded lay deserted because the retreating Austrians had taken all the carts and horses. A young Swiss banker Henri Dunant, who had gone there hoping to meet Napoleon III and to obtain commercial assistance from him, witnessed the scene. He was horrified. As he later described it, “the wounded lay for days on the battlefield, bleeding to death, tormented by thirst, hunger, flies and burning heat.” He saw the dead thrown into huge pits and was told some of the men were still alive when buried. Castiglione, the little town where the wounded were eventually taken, was overwhelmed. The whole town had become a temporary hospital. The wounded were laid on straw in churches, public buildings and in the Square where overworked surgeons tried their best to minister to them.
After returning home, Dunant recorded his experiences and in October 1862 published, at his own expense, A Memory of Solferino. Dunant did not suggest that what had happened was due to any lack of compassion. Indeed he praised what had been attempted in helping the wounded: his point was that there was simply no organization for a disaster of that magnitude. It was in the last pages of the work that he put forward the idea which led to the formation of the Red Cross. “It should be possible”, he said, “to form a society in every country when nations are at peace, from which men and women, would be organized and trained so that they could give aid to the wounded in times of war.” He also asked why should not some international principles be codified to regulate the treatment of the wounded in future wars and which would stipulate that friend and foe should receive equal treatment.
These proposals were taken up by Gustave Moynier, a Swiss lawyer, of great energy who formed a five man committee with himself as chairman and Dunant as secretary. By the 17th February 1863 the committee had studied Dunants’ proposals and formed itself into The International Standing Committee for Aid to Wounded Soldiers and eventually The International Committee of the Red Cross. On the 26th October 1863 representatives of sixteen European states met in Geneva and formally founded the Red Cross which proceeded to prepare an international convention for the care of the wounded.
In August 1864 a Diplomatic Conference was held, attended by many countries who adopted the first Geneva Convention, the Convention for the Amelioration of the Condition of the Wounded in Armies in the field (1864) . Within three years this convention was ratified by twenty-one nations. It specified that all wounded be accorded humane treatment, that medical personnel, whether military or civilian volunteers should be considered neutral and that anybody helping the wounded should be “respected and remain free” and that personnel should wear the Red Cross on a white background.
Red Cross societies multiplied. Dunant himself, however, fell into debt and eventually went bankrupt. He and Moynier clashed. Dunant was expelled from the Committee. Bankruptcy was not viewed lightly in a city like Geneva and gave rise to suspicions, often unfounded, of dishonesty. His dismissal was also due to a genuine clash of personalities and to Moynier’s envy of Dunant’s fame. Although one’s sympathies may lie with Dunant, it is difficult to imagine the Red Cross having survived without the administrative energy of Moynier.*
One important project undertaken by Dunant after his expulsion was the cause of prisoners-of-war. He hoped to persuade the British government to convene a Diplomatic Conference, as the Swiss had done for the Red Cross in 1864 to formulate a convention for the protection of prisoners of war. The British declined and, in fact, no prisoner-of-war convention was adopted until 1929.
Amelioration, in the words of the first Geneva Convention, the relief of those suffering through war, has remained the Red Cross’s core function. In the first world war alone it transmitted two and a half million letters for prisoners-of-war. It re-united families who had been fighting. It arranged for the accommodation in neutral countries of sick and wounded combatants and for their subsequent repatriation. It visited the internment camps of all the warring parties and, after the war, was responsible for repatriating 450,000 prisoners of war from Central Europe and Russia. It has performed a host of relief and welfare tasks in the many wars since. In this sense the Red Cross may justifiably be regarded as the greatest humanitarian organization of the nineteenth and twentieth centuries.
But it may, nonetheless, be said that such an organization no matter how admirable does not come within the essence of the nineteenth century humanitarian movement as described in these essays. The essence of that movement is social action for the removal of wrongs from which human beings are suffering, not amelioration of that suffering and acceptance of the conditions producing it. The humanitarian wrong in question here is war. An organization which functionally accepts war and relieves only its suffering would not, if that were all, be humanitarian in this sense.
This is not, I think, a sound objection to the inclusion of the Red Cross among these case studies of the humanitarian movement.
First, though, it must be said that the Red Cross has never formed part of the international peace movement. During the final years of the 19th century and the early years of the 20th, there was a considerable peace movement in Europe and its failure, with the advent of the First World War, is not to the discredit of those who formed and took part in it. The chief aims of the movement were to replace war with arbitration as a means of settling international disputes and to bring about disarmament. Associations such as the International Parliament Union in Paris and the London-based International Peace and Arbitration Association were leaders in the movement but it was backed by immense popular enthusiasm evident in national peace congresses. The movement was galvanised by the call by the Tsar in 1898 for a Conference on disarmament. The enthusiasm of the people throughout Europe was in contrast with the attitudes of many governments and delegates to the Conference convened at The Hague in the following year. The Kaiser was furious. The Austrian Foreign Minister deplored the possibility that the Conference would make it more difficult in the future to present military demands to their parliaments. The Conference achieved very little notwithstanding the genuine endeavours of the Russian Government.
The Red Cross was outside of this – not because it was in any way opposed to the abolition of war or endeavours to achieve that.* A powerful reason for Red Cross abstention was the need for absolute neutrality if it were to be able to carry out its mission of aiding those who suffered in war. Neutrality became a fixed policy. It was enunciated by Moynier in rejecting Bismarck’s complaint concerning the Red Cross’s non-intervention during the Franco-Prussian War and followed thereafter, not always with the happiest of consequences. But it was believed to be imperative if the Red Cross was to carry out its humanitarian mission.
The practical wisdom in the Red Cross position is evident but it did give rise to a certain contradiction which is captured by Caroline Moorehead when commenting upon Frederic Passy’s remark at the 1898 Hague Conference :
“One does not humanise slaughter, one condemns it….” “ In these words lay the paradox that marks the Red Cross position on peace to this day. If its aim is to mitigate the effects of war without actually trying to abolish it, then it rightly must fall within the framework of war, along with army medical services; if it is seen as questioning the inevitability of war, then it can be said to be campaigning for peace.”*
This ambiguity became revealed in an interesting, if piquant way, when the 1901 Nobel Peace Prize was divided between Dunant and Passy (who had been one of the founders of the International Federation for Peace). “In honouring Dunant” as Moorehead remarks, “lay the tacit admission that one of the few things that could be done about war was to mitigate its horror.”
This contradiction, as I have described it, does not justify the exclusion of the Red Cross from the nineteenth century humanitarian movement which we have identified and sought to distinguish from philanthropy.
The Red Cross became the leading inspiration in the regulation by international law of the conduct of war in a humane way. The Red Cross, animated by the Enlightenment idea of reform, sought to contain war’s inhumanity. It sought to do this in two chief ways: by confining war and its animosities to combatants and to their combatant activities and so protect soldiers who had laid down their arms or civilians who were not participants in the armed conflict and secondly but importantly, by introducing and insisting upon the idea of proportion and limits to military objectives.
The Red Cross’s part in international humanitarian law to regulate the conduct of war was not immediate. Except for Moynier’s personal effort in publishing his Manual on the legal principles of war, the Red Cross was not involved in the period between the Declaration of St Petersburg 1868 and The Hague Convention of 1907, although the chief inspiration for the activity at The Hague during this time was the first Geneva Convention of 1864.
It was the plight of civilians after the First World War, developments in weaponry, the use of poison gas and the failure of governments to initiate action led the Red Cross to step outside the Geneva Convention and take a leading role which it has maintained to this day.
At the end of the war it submitted a series of proposals to the League of Nations for outlawing certain methods of warfare, in particular, the use of poison gas and aerial bombing against the civilian population. These proposals were not adopted but in 1925 a Protocol, initiated by the Red Cross, prohibited the use in war of asphyxiating, poisonous and other gases and of bacteriological methods of warfare. Although Italy was a Party to the Protocol the flagrant disregard of its provisions during the invasion of Ethiopia (1936) led Sidney Brown, the Red Cross delegate, to say, ”if we do not manage to have the Red Cross emblem respected by a country calling itself civilized, we will never be able to do so later if we are ever faced by a war in Europe”
With the rejection of its initial post first world war proposal in relation to aerial bombing, the Red Cross commissioned experts to examine and consult and report on ways to protect the civilian population against chemical and biological warfare and against air warfare in general. It made a further failed attempt to secure international agreement in 1931, principally because Britain wished to be able to use aerial bombing for what it described as ‘police actions’. At last, in 1938, after the Red Cross had proposed the protection of ‘hospital and safety zones and localities’, the League adopted a resolution condemning the bombardment of the civilian population. The resolution was nonetheless to be disregarded by all the resolving nations in the war to come.
The world was stunned by the second world war and its aftermath. The number of civilians killed was a staggering 24 million. A million and a half were killed in air raids. The world learnt the meaning of ‘total’ war. Conventional air raids, blitzkriegs, V2 rockets and finally the atomic bombs.
The Red Cross set about preparing a framework for the future and in August 1949 submitted to governments for signature the now famous Geneva Conventions. The conventions stated comprehensively the international law then applying for sick and wounded combatants on land and sea; prisoners of war and civilians.
The first and second conventions provide for the humane care of sick and wounded combatants on land and for the wounded, sick or shipwrecked at sea irrespective of their race, religion and politics. Immunity is granted to hospitals, medical personnel and army chaplains and also to hospital ships. Special provision is made for recognition of the emblem of the Red Cross on a white background (or the Red Crescent) as the distinctive sign of medical services entitled to free movement and immunity.
The third convention provides rules for prisoners of war and in doing so revises the 1929 convention in the light of second world war experience. Use of prisoners of war for military labour, for medical experiments or as objects of public insult or curiosity are forbidden. In other words, not only their humanity but their innocence from culpability are to be recognized. All prisoners of war are immune from prosecution for their behaviour as combatants unless they committed war crimes. Prisoners of war are not imprisoned but detained. Torture or any form of coercion to extract information are absolutely prohibited. The prisoner of war is entitled to be quartered under conditions as favourable as those of the detaining power. Other provisions deal in detail with their treatment. Prisoners of war are to be repatriated at the cessation of the armed conflict in which they have been engaged.
The fourth convention is new. It provides for the protection of civilian persons in time of war. It aims to secure humane treatment for persons in occupied territories. They are entitled to respect for their customs and religion and particularly for their family ties. Women are guaranteed protection from rape and forced prostitution. Civilians must not be used as hostages or for reprisals. Nor may they be used for forced labour or be subject to mass deportation. The occupying power cannot punish civilians for activities prior to the occupation.
The first three articles in these conventions are common to each of them. The conventions are to apply in all circumstances – there are to be no excuses on grounds of necessity or otherwise. The armed conflicts to which they apply are not restricted to declared war. They protect all non-combatants. Common Article 3 gives the Red Cross the right to enter both battle-fields and war zones. The conventions further provide that the Red Cross may offer its services to the parties to the conflict. It may also be chosen by a state as “the protecting power”. The protecting power is a state not involved in the conflict, or the Red Cross, appointed to supervise the way in which the conventions are being implemented as by the inspection of prisoner of war camps.
The Geneva Conventions have been ratified by over one hundred and forty-five nations and many of their obligations form part of customary international law. These conventions continue to remain the framework but the Red Cross has assumed an even larger role in the promulgation of international humanitarian law since the second world war. Apart from the development of the two protocols to the Geneva conventions adopted in 1977, the organization was in the forefront in framing the law to be applied by the International Criminal Court which came into existence at Rome in 2001.
* See generally, Dunant’s Dream, Caroline Moorehead, Carroll and Graf, p.128 upon which I have drawn in this description of the Red Cross. Moorehead’s work also describes Dunant’s reclusive decline and thereafter his revival of fortune before the end of the century and the award to him of the Nobel Peace Prize in 1901.
* Speaking just after the conclusion of the First Geneva Convention in 1864, Gustave Moynier said, “ To take this road is to make a decisive step; one step will inevitably lead to another until it will be impossible to stop…. Future generations will see the gradual disappearance of war. An infallible logic will have it so.”
* Moorehead, op,cit, p.166.