In nineteenth-century British law many crimes were

punishable by death Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence ordering that an offender be punished in s ...

, 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.

History

Royal pardon In the English and British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, by which they can grant pardons (informally known as a royal pardon) to convicted persons. The royal prerog ...

s 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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

sentencing precedent, while avoiding being mocked by the sentenced, or the public, who realised an actual death penalty sentence was likely to be overridden. As a death sentence had to be delivered orally in court by the judge before a criminal's execution could take place, a written death recorded sentence did not, in practice, represent the death penalty. The sentence became much less common after the

Criminal Law Consolidation Acts 1861 The Criminal Law Consolidation Acts 1861 ( 24 & 25 Vict. cc. 94–100) were Acts of the Parliament of the United Kingdom that consolidated provisions from a large number of earlier statutes which were then repealed. Their purpose was to simplify ...

greatly reduced the number of capital offences. A definition of the term appears in early editions of

Ebenezer Cobham Brewer Ebenezer Cobham Brewer (2 May 1810 in Norwich – 6 March 1897 in Edwinstowe, Nottinghamshire), was a British lexicographer and the author of '' A Guide to the Scientific Knowledge of Things Familiar'', ''Brewer's Dictionary of Phrase and Fable ...

's ''

Dictionary of Phrase and Fable ''Brewer's Dictionary of Phrase and Fable'', sometimes referred to simply as ''Brewer's'', is a reference work containing definitions and explanations of many famous phrases, allusions, and figures, whether historical or mythical. The "New Edit ...

''. The number of offences for which death was nominally the sentence, and the sentence of death being recorded, were criticized at the time of usage both for being capriciously cruel and for uncertainty of actual punishment: A misunderstanding of the term led

Naomi Wolf Naomi Rebekah Wolf (born 1962) is an American feminist author, journalist, and conspiracy theorist. After the 1991 publication of her first book, '' The Beauty Myth'', Wolf became a prominent figure in the third wave of the feminist movemen ...

, 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 The Central Criminal Court of England and Wales, commonly referred to as the Old Bailey after the street on which it stands, is a criminal court building in central London, one of several that house the Crown Court of England and Wales. The s ...

, and the use of "death recorded" in these records.

References

Law of the United Kingdom Sentencing (law) Capital punishment Legal fictions 19th century in law {{UK-law-stub