A New Penal Equation
Victor Bailey · 2025
In the next four chapters (Chapters 6 to 9), we take the history of sentencing from 1853, the date of inception of the new penal servitude sentence, through to the end of the century. The aim is to document the ways in which the penal equation for serious crime was recast during these decades; to uncover the role the legislature and executive played in these shifts in punishment; and to assess how judges responded to what were essentially directions to punish criminals more severely. Chapter 6 focuses on the two Penal Servitude Acts of 1853 and 1857, the first of which introduced the sentence of penal servitude and laid down a new penal scale to commute transportation into penal servitude; the second of which, in the face of public anxiety over the release of convicts on license, made the terms of penal servitude equivalent to the old terms of transportation. Judges had to find their own way through this thicket of new laws. They retained a considerable discretion to sentence offenders under these statutes, and, as we show, they were willing to use that discretion in ways that did not always align with legislative or executive intent.