Qualities of Mercy: Justice, Punishment, and Discretion

200 Pages·1996·12.203 MB·English

by  Carolyn Strange

Qualities of Merc
This page intentionally left blank
Edited by Carolyn Strange
Qualities of Mercy:
Justice, Punishment, and Discretion
UBCPress / Vancouver
© UBC Press 1996
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without prior written permission
of the publisher.
Printed in Canada on acid-free paper ©
ISBN 0-7748-0584-6 (hardcover)
ISBN 0-7748-0585-4 (paperback)
Canadian Cataloguing in Publication Data
Main entry under title:
Qualities of mercy
Includes bibliographical references and index.
ISBN 0-7748-0584-6 (bound)
ISBN 0-7758-0585-4 (pbk.)
1. Punishment - Great Britain - History. 2. Punishment - Canada - History.
3. Punishment - Australia - History. I. Strange, Carolyn, 1959-
HV8693.Q34 1996 364.6'09 C96-910493-6
This book has been published with the help of a grant from the Humanities and Social
Sciences Federation of Canada, using funds provided by the Social Sciences and
Humanities Research Council of Canada.
UBC Press gratefully acknowledges the ongoing support to its publishing program from
the Canada Council, the Province of British Columbia Cultural Services Branch, and the
Department of Communications of the Government of Canada.
UBC Press
University of British Columbia
6344 Memorial Road
Vancouver, BC V6T 1Z2
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Contents
Foreword / vii
Douglas Hay
Acknowledgments / xi
Introduction / 3
Carolyn Strange
1 Civilized People Don't Want to See That Sort of Thing: The Decline of
Physical Punishment in London, 1760-1840 / 21
Greg T. Smith
2 In Place of Death: Transportation, Penal Practices, and the English State,
1770-1830/52
Simon Devereaux
3 'Harshness and Forbearance': The Politics of Pardons and the Upper
Canada Rebellion / 77
Barry Wright
4 Savage Mercy: Native Culture and the Modification of Capital Punish-
ment in Nineteenth-Century British Columbia /104
Tina Loo
5 Discretionary Justice: Political Culture and the Death Penalty in New
South Wales and Ontario, 1890-1920 /130
Carolyn Strange
vi Contents
Punishment in Late-Twentieth-Century Canada: An Afterword / 166
Anthony N. Doob
Select Bibliography /176
Contributors/ 179
Index /180
Foreword
This collection of essays deals with the history of mercy, the remittance of
punishments in the criminal law. It is published at a singular time in the
histories of all the principal common law jurisdictions. We appear to be
living through a great transformation in political and popular attitudes
towards legal retribution, one of the recurrent sea changes in the politics of
crime and punishment that historians studying the last two centuries have
charted more precisely in recent decades. The shifts between retribution
and reformation, punishment and reform, fixed penalties and administra-
tive discretion, are recursive. Those pairs of tendencies often, not always,
have moved in parallel. And the regressions are never exact replications.
The turn towards or away from punitiveness is always highly specific,
encoding the ambiguities, hopes, and (mainly) fears of the wider public,
and embodying them in complex bureaucratic structures that may generate
unanticipated and unintended consequences.
The contribution that historical studies can make to public policy debate
on these issues is immense, and not only because the principal alternatives
- in the corpus of criminal law and in administrative practice - have been
substantially the same ever since the adoption of imprisonment as the
paradigmatic punishment over 150 years ago. For historians of the criminal
law are also familiar with the persistent belief in our societies, now and in
past decades, indeed past centuries, that there was once (not so long ago) a
wholly different world. It was radically better, a golden age; or it was radi-
cally bad, a time of barbarities. Most citizens alarmed about crime tend to
use a not-so-distant idealized past as the measure of current depravity. Yet
it is also true that sharp political differences often lead to opposite conclu-
sions about recent history. We see extreme versions of such contradictory
accounts in the current politics of crime. The class interests, the view of
the state taken by protagonists, are crucial to their conclusions.
Although always grounded in supposed histories, these popular political
viii Foreword
debates about crime, law, and punishment are usually such gross misrep-
resentations of the historical record that they hardly deserve to be called
debates at all. A vague meliorist picture of long-term 'reforms' of former
barbarities of state punishment was found in many general accounts
published in the middle decades of this century, and broadcast in legisla-
tures and editorials. It was a complacent caricature of the long-term evolu-
tion of punishment in our societies, one that ignored the uneven weight of
retribution and forgiveness according to class, gender, and race, and that
often exaggerated the punitiveness of our ancestors. The current retribu-
tivist movement from the political right now seeks with greater stridency,
and even less evidence, to convince electorates that before the moral dere-
liction of governments in the 1960s, fixed penalties, minimal discretion,
and capital punishment ensured social peace and personal security. And
both kinds of accounts largely ignore the changes in social structure, age
distributions, economic opportunity, and political agendas that probably
have most to do with the real and perceived incidence of crime, and
punishment, at any given time.
The only cure for bad history is good history. The essays in this volume
are an important contribution not only to the recent, vastly expanded
professional historical literature on criminal law and punishment over the
last three centuries and a good survey of much of that literature. They are
also an important contribution to current public policy debates. For only
by thinking hard about the complexity, irony, and wide social resonance of
state punishments can we hope to escape the closed rhetoric of ignorant
moral entrepreneurs. And we can only think hard with evidence. Evidence
of past practice and its results. In short, history.
The current debate is one with very high stakes. Our collective societal
capacity for punishment is more developed (in terms of prisons, courts,
and police) than it has ever been before. Almost one-third of British men
born in 1958 had a serious criminal conviction by the age of twenty-eight;
a very high proportion of young men in the United States and Canada are
entangled with the criminal law, particularly if they are black or aborigi-
nal; many of the social conditions that have historically exacerbated both
crime and punitiveness are apparently endemic in the late twentieth
century. Our societies' ability or willingness to provide work, social rela-
tionships of full citizenry, and economic justice, have greatly declined in
the last two decades. So too has our capacity for providing, in the criminal
law, for outcomes other than mere retribution.
This volume throws that fact into sharp relief by its emphasis on the role
of remission, mercy, and executive and administrative discretion, all of
which have profoundly characterized the working of the criminal law in
past centuries. It is the other side of the criminal law, often ignored or
distrusted because the distinctions between mercy and corruption, discre-
Foreword ix
tion and administrative chaos, humanity and systemic bias, so often have
been fine ones. But this other side of the criminal law is integral to it, an
inescapable part of it. The apparently contradictory but always coexisting
antinomies of rigorous law versus equitable balancing of interests, condign
punishment versus reclamation of individuals and relationships - in short,
of what we sometimes call justice and mercy - are inherent in all social
arrangements, all personal relationships. These detailed historical studies
of instances in which mercy, in the widest sense, also structured criminal
law in past centuries, are a stimulating invitation to move beyond the
simplicities of our current public debate.
Douglas Hay
Law and History
York University, Toronto