Death recorded

In the nineteenth century many crimes were punishable by death, but from 1823, the term "death recorded" was used in cases where the judge wished to record a sentence of death as legally required, while at the same time indicating his intention to pardon the convict or commute the sentence.[1]

History

Royal pardons for capital punishment had become routine at the time for most common crimes. Under the Judgment of Death Act 1823, a "death recorded" sentence allowed the judge to meet common law sentencing precedent while avoiding mocking by the sentenced or the public who realised an actual death penalty sentence was likely to be overridden.[2] As a death sentence had to be delivered orally in court by the judge for the criminal to be actually executed, a written death recorded sentence was not an actual death penalty.[3] The sentence became much less common after the Criminal Law Consolidation Acts 1861 greatly reduced the number of capital offences.[4]

A definition of the term appears in early editions of Ebenezer Cobham Brewer's Dictionary of Phrase and Fable.[5]

The number of offences for which death was nominally the sentence and the sentence of death recorded were criticized at the time of usage both for being capriciously cruel and for uncertainty of actual punishment:

If all the persons, who receive sentence of death at the Old Bailey, were actually to pass into the hands of the executioner, the feelings of the people would not tolerate the repeated exhibitions of the wholesale work of blood .... What a number of convicts, too, have the sentence of death recorded against them at the several Assizes, who, as a matter of course, never suffer the last punishment of the law! ... If death ought not to be inflicted--if, in fact, it dare not be inflicted on the greater number of those to whom our laws afford it, is not the solemn passing of the sentence, and the recording it in open Court, and in the face of the people, a mockery of retributive justice ...?

— Morning Herald, General Character of the Criminal Code (15 March 1830)[6]

Contemporary confusion

The term has caused some confusion.[7] A misunderstanding of the term led to Naomi Wolf, in her 2019 book Outrages: Sex, Censorship, and the Criminalization of Love, to incorrectly claim that there had been a large number of executions for homosexuality in mid-19th-century England. This claim was based on her misreading proceedings of the Old Bailey, and the use of "death recorded" in these records.[8] During a BBC radio interview with Matthew Sweet, Wolf's claim was challenged and her misreading identified; Sweet claimed to have found the correct definition for "death recorded" on the Old Bailey website.[9] Historian Richard Ward later commented that "if all the people who were mentioned in the Old Bailey records as "death recorded" were subsequently executed, there would have been a bloodbath on the gallows".[10]

One possible explanation for Wolf's confusion was given by Tim Hitchcock, a co-director of the Old Bailey website. He tweeted that "death recorded" was listed as a variety of capital punishment for statistical purposes, and that its full significance as a variety of sentence was not explained on the Old Bailey site.[11] Wolf's misreading was also defended by Labour peer Helena Kennedy QC. Baroness Kennedy, while admitting that "in 2018 I was asked by Wolf to read the manuscript of her book, and to apply a legal practitioner’s eye to the narrative and argument," and that she failed to spot the error, argued that:

"I think the assault upon Wolf is ridiculous. I also do not think it is wholly accurate, having discussed the phrase 'death recorded' with a number of people who have made a study of the death penalty. 'Death recorded' was like a Sword of Damocles hanging over the head of a man. It was not, contrary to the BBC, 'the opposite' of a death sentence.  Sometimes the execution was not put into effect, but the prisoner lived in terror; and sometimes it was still passed. As my Scots mother would have said, 'only the English would devise ways of saying something, even in law, but meaning something else'".[12]

In fact "death recorded" means precisely that the death sentence was entered silently into the record and never pronounced in court, mainly to avoid ridicule from defendants and the public gallery when the sentence was certain to be commuted. [13] No executions for sodomy, or for any crime other than murder or treason, occurred after 1835. [14]

References

1. Shoemaker, Bob (2019-05-29). "Why Naomi Wolf misinterpreted evidence from the Old Bailey Online". History Matters. Retrieved 2019-12-26.
2. Richard Ward. "Sentencing". The Digital Panopticon: Tracing London Convicts in Britain and Australia, 1780-1925. Universities of Liverpool, Sheffield, Oxford and Sussex. Retrieved 24 May 2019. in 1823 a new practice of “death recorded” was introduced, whereby judges could abstain from pronouncing a sentence of death on any capital convict whom they considered to be a fit subject for a pardon. The carefully-choreographed theatre of sentencing and its emotional impact might also be undermined by open acts of defiance by the convict or the attending crowd. It was complained in the eighteenth century that some capital convicts made light of their sentence by comments and gestures.
3. Elena Dzhanova (24 May 2019). "Here's an Actual Nightmare: Naomi Wolf Learning On-Air That Her Book Is Wrong". New York. Retrieved 24 May 2019. “death recorded,” a 19th-century English legal term. “Death recorded” means that a convict was pardoned for his crimes rather than given the death sentence.
4. Herbert Newman Mozley; George Crispe Whiteley (1908). Mozley and Whiteley's Law Dictionary. Butterworth & Company. p. 312. OCLC 7517961.
5. Brewer, Ebenezer Cobham (2014). Dictionary of Phrase and Fable (1st (1870), reissued ed.). Cambridge University Press. p. 740. ISBN 1108068871. Retrieved 25 May 2019. Death recorded means that the sentence of death is recorded or written by the recorder against the criminal, but not verbally pronounced by the judge. This is done when the capital punishment is likely to be remitted. It is the verbal sentence of the judge that is the only sufficient warrant of an execution.
6. Society for the Diffusion of Information on the Subject of Capital Punishments, ed. (1836). The Punishment of Death: A Selection of Articles from the Morning Herald, with Notes. 1. London: Hatchard & Son--Smith, Elder, & Co. p. 4. OCLC 3386523.
7. "Naomi Wolf and publisher discussing fixes for new book". Associated Press. 24 May 2019. Retrieved 24 May 2019. He also pointed out that Wolf had misinterpreted the term "death recorded," which the author had assumed meant the accused was executed. "Death recorded" meant the sentence was documented, but not carried out.
8. Wolf, Naomi; de Miranda, Luis; Parker, Sarah (22 May 2019). "Censorship and sex". Free Thinking (audio recording). Interviewed by Matthew Sweet. London: www.bbc.co.uk. Retrieved 14 September 2019.
9. "BBC Radio 3 - Free Thinking, Censorship and sex". BBC. Retrieved 2019-12-26.
10. Lea, Richard (2019-05-24). "Naomi Wolf admits blunder over Victorians and sodomy executions". The Guardian. ISSN 0261-3077. Retrieved 2019-12-26.
11. Hitchcock, Tim (2019-05-23). "Of particular relevance here is that the OBO does list 'death recorded' as a variety of 'death sentence' for statistcical purposes. And while this is explained on the DP site, it is not explicitly stated on the OBO. No excuse really, just saying". @TimHitchcock. Retrieved 2019-12-26.
12. "Opinion: The mockery of Naomi Wolf's book error disguises the real outrage we should feel". The Independent. 2019-06-28. Retrieved 2019-12-26.
13. https://www.digitalpanopticon.org/Sentencing
14. http://www.historymatters.group.shef.ac.uk/naomi-wolf-misinterpreted-evidence-bailey-online/