Really Lazy Now - Old essays pt 5

Assess the viability of the statement by Michael Foucault that public punishment was ‘Pure Theatre’

‘When urged to repent by the clergymen who visited her in prison, "she would laugh at them, and reply in some such language as she had learned in the devil's school, with which she was well stored". Her defiance continued to the gallows, where, we are told, "she ended her wicked life by a shameful death, without the least signs of repentance for her abominable whoredomes and wickedness”’[1], account of Hannah Blay’s execution in 1668

‘Hats Off’[2], traditional cry at hangings on the emergence of the Condemned, recorded by Dickens

Rather than a display of power onto a passive victim and audience, public punishment in early modern England was a far more contested arena of rituals and rites than Foucault allows. The crowd, the condemned and ideas about death, courage, pain and the body were locked in an ongoing tension with the official script of such ‘theatre’. Whilst in the vast majority of cases, the deviant was pilloried, the criminal hung, the traitor tortured and dispatched and the reticent crushed, the meaning of these events did not go unopposed. The administration of public punishment was at the centre of ‘a constellation of enshrined ideas’[3], many of which were not controlled by the killing and maiming state.

Other factors beyond the power of the state must be considered. The crowd and the wider community had expectations of both the performance and their own place within it, as well as independent agency in perceiving it. The condemned proved willing to subvert or challenge the punishment, seeking to both seek a good death and gain solace to bolster them for the coming pain and worst. A considerable knot of discourse and rites surrounded the body under punishment, ideas independent of princely power, disrupted the claims of same power on the pillory, the gallows and the giblet. Foucault’s theory thus downplays ‘role of agency, meaning and interpretation’[4]. Pain and suffering and even what might be termed the ‘narrative ritual’ of the state sanctioned punishment were not the pliable tools of supreme secular authority. Instead, the place of punishment was more of a physical space, an arena for a host of meta-physical customs and rituals, all in contest and conflict.

Foucault bases his interpretation along a singular axis. Public punishment was a spectacle of power, that of the monarch acting against the body of the convicted. Through the public infliction of pain, the prince addressed the perceived ‘injury’ to his person that the crime represented. Thus the pillory and the gallows were the setting of a theatrical performance, demonstrating the reiteration of the Prince’s law and a display of power onto the condemned’s flesh. Within this ‘pure theatre’, the very extremity of the violence and the subsequent pain marked out a sanguinary moral. This performance was the primary purpose of early modern public punishment. The prince enforced a narrative tale of deviancy rewarded, of wrong made right and of effrontery answered by pain. The crowds came to be told this tale; the punished was an extra, symbolically made humble. Their sole roles were to ‘consecrate his own punishment by proclaiming the blackness of his crimes’[5] and to die and suffer. The only active agent was the prince and his power. Foucault then theorises that it was the growing un-passiveness of the crowd that turned this tableau of majesty restored into an ugly and uncontrollable contest. Rather than a reaffirmation of hierarchy, it became an arena where such structures were challenged. This led to the prison system of the high modern period, marking out deviants as ‘cases’, separate from the healthy social body.

Using a quite static binary model of punishment then discipline, Foucault over-emphasises structures and homogenised entities like ‘society’ and ‘power’. Barely touching on the English experience, ironic given the contemporary reputation as the ‘Bloody Country’[6], he seeks a general truth in the extremities of punishment, those dealing with the highest crimes, ones where injury to the prince is actual i.e. regicides and traitors. With regards to the English case, he thus misses out on a far more substantial social phenomenon. The thousands of men, women and children condemned under the ‘bloody code’[7] and to the pillory did suffer their punishment in performance and ritual. Yet this was no space of pure power transmitted down the social hierarchy from monarch to criminal. Rather a wide and competing host of rituals, customs, practices and indeed theatre surrounded the ‘narrative ritual’ of serving ‘justice’. These conflicts were not the demise of the public display of punishment; rather they were its mechanism, its social reality.

While Foucault’s approach has certainly generated new debate and lines of research, it had increasingly come under criticism. Some historians like J.A. Sharpe[8] and R. McGowen have supported his interpretation, seeing repentance and humbling the deviant before the princely power at the centre of public punishment. However, Gatrell, Lake and Questier[9] as well as sociologists like Smith have sought to inject further actors and agencies into the punishment ‘performance’. Thomas Laqueur[10] goes further, inverting the whole of Foucault’s model, placing the crowd in charge of proceedings. In this carnival, the whole hierarchy was mocked and the pretensions of power subverted. As is often the case, both extremities of interpretation, that of a display of unchecked monarchical power versus a mass led subversion of the order of things fail to account for the complexities within a huge social phenomenon. At the hanging tree, there was no monopoly of discourse.

Looking at the official act of taking life and inflicting pain, there is no simple transmission of will. The ‘play’ has many rewrites. In punishing the people, the state and the law had to act through a wide selection of the self-same populace. To quote C.B Herrup, ‘A hanging did not result from any single decision….but rather was the end product of a series of discrete decisions assessing degrees of culpability’[11] based on ‘the common ground between the values of the legal elite, the gentry and the local men of middling status’[12]. These men were at times to be as swayed as much by popular notions of what constituted ‘justice’ and what was proper than regal power. Similarly the Law was considered more than the bare will of the Monarch. ‘The metaphor of the body politic’[13], of crime as a disease to be cut out, was a consensus one, and thus open to negotiation over its contours and limits. Foucault and McGowen assume a Weberian ideal type of state, one with a clear executive centre and a monopoly of violence. As Amussen points out; in early modern England, violence was ‘understood as part of a strategy’[14] to claim power. Yet it was one which was linked to the socially conceived legitimacy of its use and not a monopoly. Punishment in a Foucaultian sense was a societal wide activity, from husbands to monarchs, yet it was merely one discourse amongst many.

The various caveats attached to punishment, such as the pre-strangulation of female petty traitors before burning and the dispersed disposal of the Gordon’s rioters near their locations of their crimes also complicated the power of this ‘theatre’. The garrotting of Catherine Hayes in 1726 was meant to amend the horror of immolation, ‘this part of the sentence, a type of barbarism’ due to public sentiment, it failed and thus the crowd had to witness as ‘she rent the air with her cries and lamentations’[15]. Gatrell lists eleven executions over three days at seven different locations for various rioters in 1780. Whilst this might all be a case of maximising ‘Visibility and example’[16], exercising the crimes in particular geographical space suggests a need to widen the space of punishment, confronting other subversive discourses. Thus even at the heart of the exercise of power, there was contest and contingency.

The practice of peine forte et dure or pressing with weights[17] represented a escalation of violence upon the condemned, yet this was activated by the agency of the would-be victim. It was their intransigence to the court and the system condemning them, that ’…opened up a space in which they could for a time both seize the initiative…and demonstrate their resolution and courage’[18]. In making their case ‘a contested space’[19] these ‘passive bodies’ might not escape their sentence but they made it a fight; demonstrating their own courage and questioning the forum of their conviction. The body most controlling of punishment in the early modern period was not the state, but rather a corporation. The Bank of England was the major driving force behind many an execution for forgery in the early 19th century. In comparison with the fractured and contradictory procedures of the state, ‘The Corporation managed death with a single-minded purposefulness’[20]. Instead of the pure exercise and demonstration of power, we see ‘…The infliction of death was managed to secure more modest goals than the crude intimidation of the lower orders’[21]. Thus even in the ‘master ritual’, there was tension and a dynamism ill placed in Foucault’s static interpretation.

Possibly the most important element to rival the state in its performance was that of the watching crowd and the wider community. As has been mentioned, violence and ritual outside of state control had a popular legitimacy. Rough Music[22] and brawls had a set of norms and customs that mimicked (or more accurately coexisted with) the pretensions of the avenging and ‘just’ state. Indeed the pillory was dependant on the crowd’s participation. During the humiliation of William Hales and his accomplice, it was the state who discouraged them being pelted, as ‘nothing was offered to be thrown at them’[23]. The formation of a mass crowd in an age where ‘…the coming together of several hundreds or several thousands of the lower orders was not regularly encouraged’[24] was important, but not merely in the narrow way Sharpe views it.

The crowd were there in tacit consent, but part of that consent was the ‘remonstration’ of their own ritual expectations and prejudices. In the case of Eliza Fenning, executed in 1815, the crow voiced its concern of the sketchy evidence and her great composure in front of the noose by congregating in at the house of Mr Turner, the prosecutor, ‘conversing on the subject, with whom, pity for her sufferings, and a firm belief of her innocence, seemed to be the prevailing sentiment’[25]. The crowd became so large and threatening that they had to be dispersed. They had not saved the poor victim but they had shown their displeasure and outrage. The crowd as such was a vital actor, whom both the state and the condemned wished to convince, as ‘Public sentiment, siding with the victim, may deny the hegemonic interpretation of the ritual and convert the execution from a liminal to a profane event’[26]. The crowd was a partner in the production, and as such could not be assumed to an undiscerning sponge, awaiting the morality of the state to be reiterated.

As Gatrell notes, the scaffold crowd was also a perceptive critic of the proceedings. How the condemned faced their fate was one of the paramount issues within the on looking mass, ‘in the business of dying it was all important to make a good end’[27]. In the case of those dispatched at Tyburn, the most public of rituals, the ‘Calvary’ from Newgate to the bottom of Edgware Road was a public examination. Those found to be brave, courageous and charming, even the darkest of criminals, were ‘admired by our sprightly people’[28]. In procession and on the scaffold, they were being re-judged, to use Andrea McKenzie’s term, in ‘God’s Tribunal’[29]. It was not merely the almighty, but the huge crowd at the foot of the tree that were to consider the wretches on display.

The crowd expected certain forms of behaviour. On the one hand; determined but controlled defiance was the case of ‘the five Jesuits’ hanged in 1679 might reverse much wider public opinion. Their ‘solemn protestations of innocence and above all…bravery’[30] changed the temper of the crowd and the wider audience reached by pamphlets and broadsides, challenging the hegemonic anti-papist bigotry. Overly fiery rhetoric could inversely over step the boundaries as George Gervase in 1608 was to find when he declared he did not want the ‘prayers of heretics’[31], thus confirming the crowd’s prejudices of Catholics as fanatics. On the other hand, signs of piety and grace attracted the crowd’s sympathy. In cases such as Francis Newland, killed in 1695, whom after declaring his innocence and thus confounding his Foucaultian ‘role’, said ‘I am at peace with all the world . . . I suffer (I heartily believe) a most just reward, for my past sinful life and conversation’[32]. In doing so, he (and others) charmed the crowd and produced ‘…the most effective critique of justice’ by ‘simply dying well’[33].

Just as effective, especially during the 18th century was roguish charm and ‘cheek’. Lord Balmerino, a Jacobite executed after the ’45, chatted and quipped to his friends over wine, gave a speech ‘in which he praised the King for magnanimity and mercy, but faulted him on erroneous political principle’, tipped his executioner three guineas, adjusted the block and felt the blade of the axe. He even demonstrated where his killer should strike his neck. Such bravado inspired the crowd to behave ‘…with uncommon decency and evenness of temper’[34]. Consider that this was punishment for treason in the aftermath of an armed insurrection against the royal dynasty, one laden with intense sectarian division. Yet the crowd did not passively accept a triumphant message of victory and regal excess, nor did the state see the need to enforce it. The rituals of the crowd, their expectations of ‘the good death’ and their place in such a ceremony defy Foucault’s ‘simple unidirectional account of the flow of power between state, felon and religious ideology’[35].

The abuse poured onto incompetent hangmen who botched a ‘good death’ demonstrates the crowd’s independent agency and expectations. When Robert Johnston was hung in 1818, he was left ‘half-standing, half-suspended’ by the botched efforts of the authorities. As frantic efforts where made to finish him off, he was cut down and born off by the crowd whom then attacked the executioner. After a struggle between the crowd and the constabulary over control of the nearly expired victim, he was hung again to ‘dreadful cries…from every quarter’[36]. The infamous Calcraft was publicly reviled less for his function but because he was careless about performing it, ‘He hanged them like dogs’[37]. If the primary agent in the punishment process was slack in doing its part and thus failed to honour the public’s ritual expectations, the crowd would openly and forcefully disrupt the proceedings and their legitimacy.

Rather than an extra to suffer justice upon their flesh, the condemned had considerable independence in their now deeply limited options. Sharpe’s deeply foucaultian description of the punished as ‘…the willing central participants in a theatre of punishment’, aiding by their contrition, ‘a reinforcement of certain values’[38] is lopsided. The gallows was a space where the soon to be dispatched had a series of sacred rights. The aforementioned good death, of having shown dignity and grace was paramount. Considering the self-interest of the punished in the ‘proper’ manner of their dispatch, this is unsurprising. Folkloric notions of where best to pace the noose made the last moments on the gallows a place of negotiation. As the Cato Street conspirator Ings insisted to his soon-murderer, ‘Now, old gentlemen, finish me tidily: pull the rope tighter; it may slip’[39]. The nature of their demise was conceived to be fluid and within their control. This was no passive recipient for the pain honed morality of some Leviathan.

Similarly, the last speech was seen as ‘one of the alienable rights of the “free-born Englishman”’[40]. It was sacrosanct. The ‘penitent end’ expected of the condemned in Sharpe’s review of 17th century gallows speeches was less about their specific crimes. Instead the condemned sought to seek forgiveness for general sinfulness. They were making their, not the state’s, peace. John Noyse in 1686 did not choose to seek forgiveness for committing murder, he urged the audience to avoid ‘the profanation of the Sabbath day’[41]. The disruption by the convicted of the ‘master ritual’, by cheek and parody, by defiance and charming grace, by high spirits and actual drink was an entitlement of those condemned. These strategies allowed them to ‘die well’ and just as importantly ‘anaesthetize mortal fear’[42]. They, the crowd and indeed wider society expected these customs to be respected, that the space so created be respected.

Death and its ‘primordial’ nature challenged the ‘pure theatre’ of punishment. The transition of mortality came with ‘a forest of symbols’[43], independent of the state. It is a liminal event par excellence. The post-mortem body of the executed could become a battleground between the state and societal notions, it became ‘totemic’. While a custom which was decline during the 18th century, the condemned in both life and death became a mediator between the two state, a magical property. Contact with the body had almost shamanic properties, able to ‘cure cancers and warts’. Three women in 1814 seeking such ‘power’ had the deceased’s hands placed on their breasts, for instance[44]. The body, of the killed or soon to be killed as well as that of the killers had a power in spite of the state. In the face of their martyrdom, ‘Ralph Sherwin kissed the executioner, Mark Barkworth embraced the hanging body of Anne Line, and Edward Waterson took to kissing the remains of a disembowelled and quartered priest which had been sent to scare him into submission’[45]. Further, Squabbles over dissection and being placed in the Giblet reveal that ownership of the body and its meaning were rigorously disputed[46]. There was no monopoly of the state in meaning or narrative, rather this too was contested.

When the last public execution was performed in 1868, the move ‘indoors’ of capital punishment transformed its character. It ceased to be a social ritual and one of ongoing negotiation and tension and was turned into a private method of dispatch. The reasons for this change are disputed, but one of the foremost is the increasing abhorrence of elite observers to public punishment. To Dickens, Wakefield, Ewart and Bright, the panoply of rituals that surrounded the gruesome act of killing were just as if not more horrific. To Holyoake, an execution crowd was ‘an avalanche of ordure’[47]. The whole act was unseemly and a de-civilising event. There was even doubt that it was in any way a deterrent. In Weberian terms, it must be rationalised away, made respectable, predictable. It was the very nature of this public tug of war between rituals, actors and customs that made it such a shambolic theatrical performance. It was completely un-professional.

When Foucault uses this theatrical metaphor, he does his work a disservice. If the metaphor were to hold up, the director would mangle the script, the actors refuse to say their lines and the audience would have a tendency to invade the stage. This, of course, resembles ‘low theatre’ of the early modern age, before lines of behaviour were so rigidly enforced[48]. Rather public punishment was a place where an active battle took place, where state, crowd and condemned sought to struggle in a contest of ‘narrativization’[49]. The ‘master ritual’ of execution had to coexist with and indeed respect a whole host of other narratives, one which could not be easily excised for the gallows or the pillory. The result was thus a conversation, albeit one which was regularly antagonistic and confrontational. At death, a whole tangle of discourse and customs, rituals and beliefs came together in a tightly bound knot, the state being unable and unwilling to cut it with a single blow. While it is true that the execution and the punishment contained ‘the ceremony in which the sovereign triumphed’[50], these small victories had never been total, nor accepted passively.



[1] J. A. Sharpe, ‘"Last Dying Speeches": Religion, Ideology and Public Execution in Seventeenth-Century England’, Past and Present, May 1985, 107, pg. 154
[2] as quoted in V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868, (Oxford, Oxford University Press, 1994), pg. 60
[3] Clifford Geertz as quoted in R. McGowen, ‘The Body and Punishment in Eighteenth Century England’, The Journal of Modern History, 1987, 59/4, pg. 653
[4] P. Smith, ‘Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital’, Theory and Society, 1996, 25/ 2, pg. 238
[5] M. Foucault, Discipline and Punish: The Birth of the Prison, (London, Penguin, 1977), pg. 66
[6] Edmund Burke as quoted in V.A.C Gatrell, 1994, ibid, pg. 20
[7] V.A.C Gatrell, 1994, ibid, pg. 21
[8] See J.A Sharpe, 1985, ibid.
[9] P. Lake & M. Questier, ‘Agency, Appropriation and Rhetoric under the Gallows: Puritans, Romanists and the State in Early Modern England’ Past and Present, Nov 1996, 153,
[10] T.W Laqueur, ‘Crowds, carnivals and the English state in English executions 1604-1868’ in A.L. Beier eds. The First Modern Society: Essays in honour of Lawrence Stone, (Cambridge, Cambridge University Press, 1989)
[11] C.B Herrup, ‘Law and Morality in Seventeenth Century England’, Past and Present, 1984, 106, pg. 107
[12] C.B Herrup, 1984, ibid, pg. 108
[13] R. McGowen, 1987, ibid, pg 654
[14] S.D. Amussen, ‘Punishment, Discipline, and Power: The Social Meanings of Violence in Early Modern England’, The Journal of British Studies, 1995, 34/1, pg. 31
[15] Newgate Calender, see http://tarlton.law.utexas.edu/lpop/etext/newgate3/hayes.htm , 7/12/08 14pm
[16] V.A.C Gatrell, 1994, ibid, pg. 31
[17] ‘However the said woman standing obstinately mute to her first Indictment, notwithstanding all the perswasions of Master Sheriff, and the Ordinary representing to her that she drew her blood upon her own head, the Court was forced to that terrible Judgment, that she should be pressed to death; and accordingly she was carried forthwith to Newgate in order to such Execution’, ref # t16760823-6, http://www.oldbaileyonline.org/browse.jsp?path=sessionsPapers%2F16760823.xml, 9/12/08 13pm
[18] A. McKenzie, “This Death Some Strong and Stout Hearted Man Doth Choose”: The Practice of Peine Forte et Dure in Seventeenth and Eighteenth Century England”, Law and History Review, 2005, 23/2, pg. 312
[19] A. McKenzie, 2005, ibid, pg. 283
[20] R. McGowen, ‘Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821’, Law and History Review, 2007, 25/2, pg. 243
[21] R. McGowen, 2007, ibid, pg. 280
[22] See M. Ingram, ‘Ridings, Rough Music and the "Reform of Popular Culture" in early modern England’, Past and Present, 1984, 105, pg. 79-113
[23] R. McGowen, ‘From Pillory to Gallows: the punishment of forgery in the age of the financial revolution’, Past and Present, 1998, 165, pg. 124
[24] J.A. Sharpe, 1985, ibid, pg. 161
[25] as quoted in P. Smith, 1996, ibid, pg. 243
[26] P. Smith, 1996, ibid, pg. 242
[27] T. S. R. Boase, Death in the Middle Ages: Mortality, Judgement and Remembrance, (London, Thames and Hudson, 1972), pg. 119
[28] V.A.C Gatrell, 1994, ibid, pg 33
[29] A. McKenzie, ‘God’s Tribunal: Guilt, Innocence and Execution in England, 1675-1775’, Cultural and Social History, 2006, 3
[30] A. McKenzie, 2006, ibid, pg. 122
[31] P. Lake & M. Questier, 1996, ibid, pg. 81
[32] J.A. Sharpe, 1985, ibid, pg. 155
[33] A. McKenzie, 2006, ibid, pg. 128
[34] P. Smith, 1996, ibid, pg. 245
[35] P. Lake & M. Questier, 1996, ibid, pg. 66
[36] V.A.C Gatrell, 1994, ibid, pg. 50
[37] V.A.C Gatrell, 1994, ibid, pg. 51
[38] J.A. Sharpe, 1985, ibid, pg. 152
[39] as quoted in V.A.C Gatrell, 1994, ibid, pg. 47
[40] A. McKenzie, 2006, ibid, pg. 126
[41] J.A. Sharpe, 1985, ibid, pg. 151
[42] V.A.C Gatrell, 1994, ibid, pg. 40
[43] Victor Turner as quoted in P. Smith, 1996, ibid, pg. 239
[44] V.A.C Gatrell, 1994, ibid, pg. 82
[45] P. Lake & M. Questier, 1996, ibid, pg. 78
[46] See the case of William Jobling in 1832 in D. Taylor, Crime, Policing and Punishment in England, 1750-1914, (Basingstoke, Palgrave Macmillan, 1998), pg. 136
[47] V.A.C Gatrell, 1994, ibid, pg. 60
[48] See P. Bailey, ‘Conspiracies of Meaning: Music Hall and the Knowingness of Popular Culture’, Past & Present, 1994 144/1, pg. 138-170
[49] P. Smith, 1996, ibid, pg. 240
[50] M. Foucault, 1977, ibid, pg. 56