But at the same time, there were others who felt that the public displays of aggression, no matter how well intentioned, were in fact doing more harm than good. As far back as 1725, one writer had warned that hangings were attended disproportionately by drunks, prostitutes, and pickpockets, and that potential criminals were enjoying the killings far too much to be deterred by them. Over subsequent decades, crowds had become increasingly violent, frequently trying to free prisoners and often launching assaults, up to and including murder, on the executioners and surgeons present. The phenomenon, seen across Europe, inspired British legislators in 1783 to replace the Tyburn processions with stationary executions outside Newgate. But the volatility also gave rise to far more radical proposals for reform. Tinkering with the spectacle was no solution to rising crime, argued some – because publicity itself was the problem.
The reasoning had first been set out in 1751. Henry Fielding, a London magistrate as well as the author of classics such as Tom Jones, had set out to explore why London seemed to be experiencing an upsurge in robberies. He assumed, like almost everyone else, that inefficient penalties were the primary cause; but instead of suggesting that their violence be increased, he proposed that it be hidden. According to Fielding, it was the delay between trial and execution that created pity for capital offenders, and it was the opportunity granted those offenders to address the gallows crowd that turned them into victims or heroes. Swiftness and secrecy were therefore essential. Prisoners should be hanged in the yard of the court in which they had been tried, within four days of conviction, watched in silence by the robed and bewigged judges who had sentenced them. ‘Nothing…can be imagined more terrible,’ he urged – and writer that he was, he knew that it was imagination rather than sight that produced fear. Shakespeare’s Macbeth served to illustrate the point. ‘A murder behind the scenes’, he explained, ‘will affect the audience with greater terror than if it was acted before their eyes.’*
Fielding’s proposal was a little too avant-garde to be enacted, but it would influence legislators for the next century and heralded an era in which power would be expressed as much by concealment as by display. Branding irons, whipping posts, and pillories were being abandoned across the Western world by the late eighteenth century. Do-gooders, inspired by the hope of making convicts work, pray, and see the error of their ways, would soon perfect a new kind of prison – the penitentiary or reformatory – which made its debut in the eastern United States at the turn of the century. The causes driving the change varied considerably from country to country (a major impetus in Britain was the American Revolution of 1776, which robbed the country of its largest penal dustbin overnight), but the shift was seen throughout Europe and America. And during the nineteenth century it began to fuel demands to conceal the most visible punitive spectacle of all – the public execution.
Those who campaigned most strongly for reform were the politicians who most favoured the death penalty – because they feared that the unruliness and unpleasantness of the public ritual was beginning to threaten its continued existence. For precisely opposite reasons, resistance was led by abolitionists – men like Samuel Bowne, a Quaker Assemblyman in New York, who argued against the concealment of public throttlings in 1834 on the grounds that popular disgust would soon lead ‘to the entire abolition of capital punishment’. And the supporters of death were soon making the running. Their first success came with a ban on public executions in Rhode Island in 1833 – followed within two years by similar laws in Pennsylvania, New York, New Jersey, and Massachusetts. British opponents of capital punishment fought a similar battle to keep the horror visible, but they too were destined to be outmanoeuvred. On 29 May 1868, three days after one last hanging – before a seething crowd that yelled ‘body-snatcher’ at the executioner as he cut down the corpse – supporters of the death penalty were able finally to hide it behind prison walls.
Public hangings very probably originated as a sacrificial rite and their concealment in many ways restored the mystery that a century of rationalism had threatened to dispel. For the most immediate effect, just as abolitionists had feared, was to stabilize an institution that had at certain points in the early 1800s begun to seem very wobbly indeed. British hangmen would continue secretly to snap necks for another century. In the United States, where men and women are still poisoned and gassed in hidden chambers, popular support for the death penalty may well be stronger than it was two hundred years ago.
But the change also had another consequence – for as the punishments that had exemplified Western justice for centuries vanished, criminal trials assumed a more prominent position than ever before. New York produced America’s first true-crime journal, the National Police Gazette, in 1845 – a decade after its legislature did away with public hangings – while the Illustrated Police News first hit London’s news-stands in 1864, just four years before Britain’s Parliament followed suit. A similar shift was seen elsewhere in Europe. In Prussia, the first German state to end public executions, the same statute that relocated the beheadings to prison yards in 1851 opened the kingdom’s trials to the public. Equivalent laws did the same throughout the rest of Germany over the next three decades, and by the end of the century day trips to court had become a popular pastime among middle-class families across the country.
In France, the story was a little different. The legal reforms that followed the Revolution of 1789 threw its courts open to the public and guaranteed defendants a right to counsel. They also gave ordinary citizens a role in judging criminal cases, creating a form of the jury that spread, through cultural influence and Napoleonic campaigns, from Madrid to Moscow over the next three-quarters of a century. The country bucked the penal trend by continuing to stage public executions right up to 1939, later than any other country in the Western world, but its experience of publicity also exemplified the growing significance of the criminal trial.
Over the course of the eighteenth century, France’s liberal thinkers had developed a deep admiration for the transparency of English criminal justice. ‘In England no trial is secret,’ Voltaire had explained in an impassioned attack on the inquisitorial system in 1762, ‘because the punishment of crime is meant to be a lesson to the public…and not vengeance for one person. Witnesses testify in open court and any trial of interest is reported in the newspapers.’ Attitudes towards the jury itself had always been considerably more equivocal however, and French jurists were very soon having second thoughts about its wisdom.
In 1804, soundings were taken from seventy-five courts across the nation as to whether juries should be retained. The Anglophilia of men like Voltaire was a thing of the past – not least, because France was at war with Britain – and the fifty-two jurisdictions that replied were split precisely in half. One court that expressed an especially firm non was that of Doubs. Jury service, argued its judges, was a task that could appeal only to citizens as primitive as those of England. ‘At the theatre, the Englishman only cares for ghosts, lunatics, dreadful criminals and drawnout murders; he scurries to animal fights, and probably regrets the passing of gladiatorial contests,’ they observed. ‘Who can tell if he does not seek the functions of a juror for the pleasure of watching a criminal struggling with his conscience, with the death that awaits him? The Frenchman, on the contrary, is delicate in all his tastes; he flees from any sight which could disagreeably awaken his sensitivity; could he take any pleasure in wielding the bleeding sword of justice?’
The assessment was an audacious one. Frenchmen had just guillotined thousands of their compatriots, and possessed such enthusiasm for the bleeding sword of justice that they would watch its blade rise and fall in public for another 135 years. The sight of squirming criminals was also doing little to repulse them: the world’s first newspaper dedicated exclusively to court reporting, the Gazette des tribunaux, was launched within months of the 1791 law that had thrown open the doors of France’s trials. But the judges of Doubs were chauvinistic rather than simply wrong. Prurience had always been potential in English trials, even if its source had been publicity rather than juries. And as France moved from inquisitorial secrecy to routine openness, it would take to the voyeuristic pleasures of the courtroom with delight.
France’s