Punishment and the cultural limits to state power in late 18th-century Britain
| Author | James J. Willis |
| Published date | 01 October 2008 |
| Date | 01 October 2008 |
| DOI | http://doi.org/10.1177/1462474508095318 |
| Subject Matter | Articles |
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1462-4745; Vol 10(4): 401–428
DOI: 10.1177/1462474508095318
PUNISHMENT
& SOCIETY
Punishment and the
cultural limits to
state power in late
18th-century Britain
JAMES J. WILLIS
George Mason University, USA
Abstract
The late 18th century is widely regarded as a time of rapid and momentous change in
European and US penal history. Having identified this as the crucial formative period
of the modern penitentiary, scholars naturally have sought to explain the developments
that contributed to this modern form of punishment. However, at least in the case of
Britain, this was also a time of continuity. Despite the well-publicized efforts of prison
reformers, seminal prison legislation, and the end of transportation to America, Britain
did not cease conveying its felons overseas. The question arises, ‘Why did Britain resume
transporting its offenders to New South Wales despite the opportunity and impetus for
prison reform?’ This article challenges more instrumental economic, strategic, and social
control explanations by placing transportation within a broader expressive or cultural
context. Since state punishments are some of the clearest and most brutal displays
of state coercion, their application can generate questions about the nature of state
authority and human freedoms. Using historical documents and secondary sources, this
case study seeks to uncover the broader cultural understandings of the State’s capacity
to punish in order to explain why Britain continued to expel its offenders overseas. In
doing so, it draws attention to how transportation operated within existing social
relations between rulers and ruled – relations that were centered on the practical experi-
ences of liberty and influenced by emergent democratic sentiments.
Key Words
culture • penal history • penitentiary • state • transportation
INTRODUCTION
The late 18th century is widely regarded as a time of crucial change in European and
US penal history. Scholars have identified this as the formative period of the modern
401
PUNISHMENT & SOCIETY 10(4)
penitentiary and sought, understandably given the centrality of this institution to the
contemporary penal realm, to explain the factors contributing to its ascendancy
(Rothman, 1971; Ignatieff, 1978; Foucault, 1979; Innes and Styles, 1986; Gottschalk,
2006). However, at least in the case of Britain, it can be argued that this was as much
a time of continuity. Notwithstanding the extensive and well-publicized efforts of
prominent prison reformers, seminal prison legislation, and the end of imprisonment’s
primary penal alternative, transportation to the American colonies, Britain failed to put
its faith in the penitentiary and its strict disciplinary regimen.
While it is true that a higher proportion of criminal offenders were imprisoned than
were transported to New South Wales during the last decades of the 18th century
(Beattie, 1986: 601), what needs to be accounted for is why this shift in penal practice
was not more decisive. If by penitentiaries we mean institutions used for the long-term
punishment and reform of criminal offenders and operating under the auspices of a
central government prison administration, these were clearly slow to develop. Millbank
was not built until 1816 and by 1867 there were only nine of these ‘convict’ or national
prisons (McConville, 1995: 119). Furthermore, Britain’s decision to continue dumping
as many as a third of its criminal offenders on foreign shores demonstrates its reliance
on the long-established practice of transportation (Devereaux, 1997: 257). Thus the
question arises, why, despite a set of circumstances that provided a powerful impetus
and sudden opportunity to imprison criminal offenders under a strict disciplinary
regimen, did Britain continue to transport so many overseas? Examining British penal
history from the perspective of transportation’s persistence rather than the penitentiary’s
preeminence promises to illuminate some of the forces that tend to be overlooked when
examining a society’s capacity to punish.
This article challenges existing economic, strategic, and social control explanations
for the resumption of transportation by adopting a cultural framework. Its point of
departure is the recognition that punishment is a ‘symbolically deep event’ whose forms
and practices draw upon deeply held values and sentiments in the societies in which
they operate (Garland, 1990a: 10). The idea that punishment needs to be embedded
and understood within a broader cultural context is hardly novel (Garland, 1990a,
2006; Melossi, 2001; Tonry, 2001; Savelsberg, 2002, 2004; Smith, 2003). Neverthe-
less, relative to other forms of punishment, the cultural forces that influenced the
adoption of transportation are much less studied. The various historical meanings, atti-
tudes, and values associated with penal practices such as the 19th-century penitentiary,
the scaffold, and public torture lynching have been the subject of intense scholarly
inquiry (Ignatieff, 1978; Spierenburg, 1984; Laqueur, 1989; Garland, 1990a, 1991,
2002, 2005; Gattrell, 1994). As a result, appreciation for the complexities of these
punishments and, more generally, for punishment as a social institution, has been
deepened. In comparison, explanations for the origins of transportation have tended to
emphasize its instrumental dimensions. According to these accounts, transportation to
New South Wales (NSW) was adopted because it was cheap and promised profitable
returns; it was a means for securing vital resources; or it was an effective mechanism for
controlling crime. While these studies have marshaled new sources of information on
transportation and highlighted its rational and purposive elements, they neglect its
significant expressive dimensions. Perhaps this explains why transportation, at least
within the sociology of punishment, has stimulated relatively modest interest (Feeley,
402
WILLIS
Punishment in late 18th-century Britain
1999; Willis, 2000, 2005; Braithwaite, 2003). Aside from the few following exceptions,
scholars have generally not considered transportation to be a penal institution capable
of contributing deeper insights on the politics of inclusion/exclusion (Braithwaite,
2001), the privatization of punishment (Feeley, 2002; Hallett, 2006), or on the
decision-making processes influencing penal change (Willis, 2005).
Whereas the latter article does address the cultural context within which transpor-
tation operated, it does so over 150 years and in relation to large-scale changes in state
administration and organization. In contrast, this article provides a finer-grained
analysis of the specific expressive and normative dimensions of transportation within a
much briefer yet decisive period in British penal history. Thus it tries to develop signifi-
cantly the cultural dimension of the earlier article. Here I identify the specific sensi-
bilities, values, and conceptions of justice that shaped state–society relations at the end
of the 18th century, and I seek to explain how these influenced penal outcomes during
an era of emerging democratic sentiments.
Among the host of meanings that punishments communicate about – including
crime and moral disapproval – the specific forms they take also help reveal conceptions
of political authority upon which social order rests (Durkheim, 1901/1983: 104;
Garland, 1990a: 53). Because punishments represent some of the most brutal and
conspicuous displays of state coercion, they necessarily raise questions about the legit-
imate role and scope of the State (Philips, 1986; Atkinson, 1994). This case study uses
historical documents and secondary texts to explain a key moment in British penal
history, namely the decision not to replace transportation with the penitentiary at the
end of the 18th century. Its purpose is to uncover how transportation operated within
broader cultural understandings in Britain surrounding the nature of state authority and
human freedoms. By examining transportation within existing social relations, I try to
show that, unlike the penitentiary, transportation was a penal institution that cor-
responded more closely to broader conceptions of the acceptable uses of state power.
Centered on practical experiences of liberty, these conceptions were expressed power-
fully in the law and criminal justice system and given even greater salience by the
American and French Revolutions. With their focus on liberty and individual rights,
one of the effects of these political events in Britain was to underscore the necessity of
imposing limits on state power.
A few historical studies on transportation have speculated on the relationship between
liberty, imprisonment, and transportation in Britain (Ekirch, 1987: 20–1; Innes, 1990:
11), but to date this approach has not been developed empirically and theoretically
within a broader penal framework.1 By drawing attention to how highly charged politi-
cal considerations shaped penal practices, I hope to illustrate the limitations of studies
that, in focusing on the birth of the modern prison with its classification of prisoners
and standardization of rules and regulations, tend to characterize punishments as un-
restrained exercises of state coercion (Rothman, 1971; Ignatieff, 1978; Foucault, 1979).
Rather than being determined by instrumental concerns for maximizing control, specific
penal practices are also shaped powerfully by non-punitive values that may limit the
State’s capacity to...
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