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Society and the Penal System in 18th Century Scotland

by Malenie Reyes

Source: “Law Intelligence”[1]

“Law Intelligence” is an article written by an unnamed editor for the Aberdeen Journal in February of 1798. As the name suggests, the location of publication of this newspaper is Aberdeen, Scotland. Newspapers dominated print culture in Great Britain in the 18th century[2], allowing them to become the best form to report on various aspects of society. Since newspapers’ rise in popularity coincided with an increase in literacy rates[3], the audience for the Aberdeen Journal was likely the general public in Aberdeen as a means to report on recent crime. This may be especially true considering that this was an important time for changes in the penal system in Great Britain as well.[4] Since newspapers can also be read aloud, many people of various ages were likely able to gain insight on the happenings within their community during this period of great change. What may have once been a luxury was a means to now share stories with people beyond those with highest education and the greatest amount of resources. The combination of a rise in the newspaper popularity, growing literary rates and the newspaper as an auditory and literary medium allowed for more crime reporting to occur in Great Britain.

As noted above, since the 18th century was a vital time for penal system developments in Great Britain, this source may have served to report crime in the newspaper in order to track these developments over time in everyday life. Newspapers could thus be an accessible way to track history in current time in the 18th century. Since the article itself is not biased and only speaks on the indictment and the judge’s rationale for the given sentence, it may focus on allowing the public to develop their own opinions on the state of the community and how crime was being dealt with. As a result, public access to reports may have been a popular means to keep the government accountable for the changes they implemented, especially since lower crime rates within society are favorable.

One thing to consider, however, is the use of language in the source, which describes the horrors of gaming. Although reported in an unbiased manner through the judge’s rationale, this inclusion of details may further the purpose of the publication by warning the public against participating in gaming themselves. Gaming is painted as causing a rise in suicides and ruining “innocent families”[5], which may have simultaneously spread fear into the community, especially within families themselves. This could assist in curtailing overall participation in gaming, as the article also cites gaming as being “evil”[6].

The trend illuminated by this source is the role of gambling in society in the 18th century. Gambling had once been seen as an activity that the elite would engage in, but the 18th century saw a widening availability of gambling. As gambling became a new way for the poor to accumulate wealth, it became a new way to criticize the lower classes. Gambling, which had at first been an activity of leisure, was now a new way to avoid active work in a capitalist and industrialist economy[7], putting the greater society at risk. In fact, Great Britain illegalized private games, and thus gaming houses, in light of these developments.[8] The replacement of exclusive games with public gaming houses caused society to begin to view gaming as “tyrannous houses of ruin”[9] whose only goal was to bankrupt all classes of society. This shift in public opinions made gambling into a largescale problem, increasing the need to get rid of it. Resulting trends replaced a once beloved cultural space with what this source now classifies as a vice, revealing a time where many aspects of society were changing at once.

The actual sentencing for the crime of gaming itself is an especially interesting one. The judge states that gaming is an evil that sends many to the gallows and, yet, he does not send the defendant to them himself. This may serve to draw a distinction between Scottish and English practices. In the 18th century, Scotland and England had their own legal systems.[10] In fact, Scotland sent “far fewer” convicts to the gallows in the 18th century than did England[11], which is seen in an almost threatening way in the judge’s rationale. By mentioning the gallows and forgoing the usage of them as punishment, he may be highlighting the lenience present in the Scottish system during this period.

The move away from the gallows as a distinction between the English and Scottish legal systems shows Scotland’s efforts in the 18th century to move away from harsh, corporal punishment. The defendant’s sentence of a year to a house of correction shows the focus on short sentences and minor offenses, rather than putting together every class of criminal in the same institution. Although it can be speculated that the conditions within the house of correction were likely not the most favorable, the judge makes the statement that many have exited from the house of correction healthier than they entered.[12] This focuses on a need for the Scottish penal system to at least appear benevolent, especially with a crime so negatively associated with evil as gaming. The desire for more available workers within a capitalist system can also be seen. By entering into a recognizance that expects seven years of no gaming by the defendant[13], the reader can assume that this is a way for the defendant to find a new way to make money. Given the time period of its publication, it can thus be assumed that this includes work that instills values of capitalism and industrialism, as noted earlier.

As such, this newspaper article, although short in length, is packed with various aspects of Scottish society. The reader can see a shift in gambling culture, the importance that capitalist work holds, and a move away from the English penal system. By evaluating all of these changes, the reader gets a real glimpse into both everyday life and the penal system in Scottish communities.


[1] “Law Intelligence.” Aberdeen Journal, February 6, 1798. British Library Newspapers (accessed August 6, 2020). https://link-gale-com.proxy.lib.duke.edu/apps/doc/BA3205609238/BNCN?u=duke_perkins&sid=BNCN&xid=cc1a1210.

[2] Elizabeth Foyster, “Introduction: Newspaper Reporting of Crime and Justice.” Continuity and Change 22, no. 1 (2007): 9. doi:10.1017/S0268416007006224.

[3] Foyster, “Introduction: Newspaper Reporting of Crime and Justice,” 9.

[4] Foyster, “Introduction: Newspaper Reporting of Crime and Justice,” 9.

[5] “Law Intelligence.”

[6] “Law Intelligence.”

[7] Arthur Pitt, “A Study Of Gamblers And Gaming Culture In London, c. 1780-1844: emerging strategic reasoning in a culture of conspicuous consumption” (MA diss., University of York, 2012), 139.

[8] Pitt, “A Study Of Gamblers And Gaming Culture In London, c. 1780-1844,” 119.

[9] Pitt, “A Study Of Gamblers And Gaming Culture In London, c. 1780-1844,” 124.

[10] Rachel Bennett, “An Awful and Impressive Spectacle: Crime Scene Executions in Scotland, 1801-1841.” Crime, History & Societies 21, no. 1 (2017): 3. doi:10.4000/chs.1720.

[11] Bennett, “An Awful and Impressive Spectacle,” 3.

[12] “Law Intelligence.”

[13] “Law Intelligence.”

Malta: The Epitome of a Carceral State

by Gabriela Fonseca

Image: Barred Windows [1]

Carceral states are often thought to be those that rely on prisons and jails, but there are sites of incarceration aside from local jails and state or federal prisons. Immigration detention centers are places of extreme penal oversight often because they operate under different regulations than ‘normal’ prisons and jails. Malta, a small island-nation in the Mediterranean Sea, is often the receptor for African migrants that are rescued from the sea, usually after embarking from the Libyan coast. Using detention as a deterrent, Malta officials push to maintain the mandatory detention of eighteen months for those detained on immigration infractions, usually these detainees consist of the migrants that were rescued. Through the use of mandatory incarceration, Malta situates itself as a space of patrol and control of those they believe do not belong. Through the analysis of a photograph taken by Darrin Zammit Lupi, “Barred Windows” and academic research on the historical and social aspects of Maltese immigration, the intricacies of Maltese immigration policy, and reactions to migrants in general, can be made clearer.

Darrin Zammit Lupi is a photographer currently situated in Malta, focusing on capturing, as much as possible, the realities of African migrants who were detained in Maltese immigration detention camps.[2] Though the audience is unknown, it can be assumed that Lupi took the photo to increase the information that was available about the conditions of African immigrants detained in Malta. For the past several years, Lupi has situated himself in the Mediterranean region to create awareness on the conditions migrants are forced to live in “through and after their journey across the Mediterranean Sea.”[3] The photo in question, “Barred Windows,” was taken on October 11, 2011 as part of his series Malta Detention, 2004-2013.[4] The photo shows two Sub-Saharan African immigrants held at the Safi Detention Centre near Valletta.[5] The two men are photographed through not just the barred windows at Safi, but also the blurred ‘X’ in the top right corner of the photo indicates the photo was also taken through a hole in a chain-link fence. The man on the left has his hands held out with his palms pointed semi-upward, staring in the direction of Lupi’s camera. Photographed in such a way that he looks to be questioning his own detention, almost as if to say, “why am I here?” If that is the case, he would not be the only one to question why Malta mandates 18 months of detention and issues removal orders for all irregular immigrants, unless their asylum claim is pending, in which case detention is only twelve months[6].

From the description of the photo given by the Duke Digital Collection’s team, situates the photo during the period following the end of the 2008 Italian-Libyan Treaty on Friendship, Partnership and Cooperation.[7] Through the treaty, Libya received a monetary incentive “to increase patrols along its maritime border and to allow Italy to return migrants and asylum seekers to Libya, after they were intercepted at sea.”[8] During the time Libya complied with this treaty, arrivals in Malta decreased drastically, but once the new Libyan government under the rule of Muammar Gaddafi[9] took over, they “focused on other priorities” and arrivals in Malta increased.[10] Since most African migrants embark on their journey across the sea from Libya, more boats were able to evade detection once the patrols lessened in those waters. Once Libya no longer upheld their side of the agreement, arrivals of irregular immigrants skyrocketed. This photo was taken in the later months of 2011, and since over 1,500 individuals arrived in Malta between March 28 and June 1, it is most likely the case that these two men were living in overcrowded conditions due to the growth in arrivals and the long periods of mandatory detention.[11]

This photo forces the viewer to acknowledge the jail-like conditions of Maltese immigration detention centers. Through interviews with formerly detained individuals, Cetta Mainwaring found that they often referred “to the detention centers as a ‘prison.’”[12] This is extremely appalling when taken into account with Daniela DeBono’s revelation that “the criminalisation of illegal entry was expunged from Maltese laws in 2002.”[13] Nations that are members of the EU have a duty and obligation to protect those who enter their borders, but Malta is the only one that “maintains an 18-month, mandatory detention policy for all irregular migrants upon arrival.”[14] Instead of using its position in the EU to find better ways to support immigrants in need and seeking asylum, Malta has been able to position itself as the little island overrun by outsiders. According to Cetta Mainwaring, Malta “has constructed a crisis narrative in order to attract more financial support.”[15] Like many other carceral sites and penal institutions, there is a large financial incentive to housing detainees, but unlike most prisons, Malta does not put them to work, instead it relies on their incarceration to obtain more funding from the EU.

As seen in the photo, the funding is not going toward making these detention centers viable areas for housing. The windows are holes in the concrete walls covered in bars, making the interior of the building, and the people and possessions in near vicinity, susceptible to the elements. . And from the gaps in the cement blocks between the windows, it can be easily inferred that the physical building is in a state of deterioration and neglect. NGOs have criticized these conditions, arguing the centers are often “overcrowded, unhygienic, and inhumane,[16]” but Maltese officials argue this is one more way they use detention as a deterrent for migration.[17] Aside from the horrid conditions migrants must live in for eighteen months, the idea that detention is a deterrent is abhorrent. When faced with detention, there is thought to be a possibility of release, a possibility of freedom.[18] For some individuals, especially those fleeing from political persecution and governmental violence, that possibility of freedom is all they need.

Detention is not the worst thing that could happen, it may be long and full of suffering, but it is also relatively safe compared to war zones and areas of humanitarian crises. Besides, if their asylum claim is granted, or still pending after twelve months, then they are ‘free,’ but not in the sense that some may think.[19] Refugees and migrants have become synonymous with criminals. This “hinders mobility” and makes it increasingly difficult to find work, especially on an island as small and as densely populated as Malta.[20] This is eerily similar to the 1836 Emigration Act of Barbados, that monitored the movement of the formerly enslaved population in order to maintain a cheap workforce.[21] When refugees and migrants are criminalized, they too are left vulnerable to massive amounts of policing and control, and due to the high number of arrivals on the island, even if someone finds work, the pay rate will not be good because competition drives prices down.

Malta was able to create a narrative of a migration ‘crisis’ to gain financial incentives and place itself in a position to not care for immigrants. This was done mainly through the mandatory incarceration of African immigrants, but it was also done through the mass criminalization of those individuals as well. Lupi’s photos show this enhanced criminalization. These men, standing in white shirts, almost as if in uniform, are photographed through barred windows and most likely a chain-link fence. They were photographed on the periphery of society, “out of sight of Malta’s waterfront boulevards lined with hotels that receive over a million tourists every year.”[22] Like most individuals caught in the carceral archipelago, they are easily forgotten about, ignored, and villainized.

This photo is so much more than just two men awaiting the day they are to be told who will claim them or where they will be returned to. It is a window, however barred it may seem, into the reality that is Maltese immigration policy. It represents the neglectful conditions immigrants are forced to live in while they await to hear if their life is in enough danger to save. It signifies the mass criminalization of immigrants by recreating them as de facto prisoners.



[1] “Barred Windows,” Duke University Libraries Repository Collections & Archives, accessed July 29, 2020 https://repository.duke.edu/dc/lupidarrin/RL11613-TIFF-0159.

[2]Darrin Zammit Lupi, “About Me,” Darrin Zammit Lupi Photography, August 2019, https://www.darrinzammitlupi.com/about.

[3]Darrin Zammit Lupi, “Islelanders: A Photographic Project,” Islelanders(blog), 2014, https://islelanders.com/.

[4] “Barred Windows,” Duke University Libraries Repository Collections & Archives

[5] Ibid.

[6] Cetta Mainwaring, “Constructing a Crisis: the Role of Immigration Detention in Malta,” Population, Place and Space 18 (June 24, 2012): 689.

[7] Ibid., 689.

[8] Ibid., 689.

[9] Ibid., 696.

[10] “Barred Windows,” Duke University Libraries Repository Collections & Archives

[11] Cetta Mainwaring, “Constructing a Crisis,” 289.

[12] Ibid., 294.

[13] Daniela DeBono, “‘Less than human’: the detention of irregular immigrants in Malta,” Race & Class 55, no. 2 (October, 1 2013): 75.

[14] Cetta Mainwaring, “Constructing a Crisis,” 687.

[15] ibid., 697.

[16] Ibid., 690.

[17] Ibid., 691.

[18] Ibid., 693-694.

[19]Ibid., 689.

[20] Ibid., 690.

[21] Dawn P. Harris, “Confined Spaces, Constrained Bodies: Land, Labor, and Confinement in Barbados after 1834,” Punishing the Black Body: Marking Social and Racial Structures in Barbados and Jamaica (Athens, University of Georgia Press, 2017), 95.

[22] Cetta Mainwaring, “Constructing a Crisis,” 690.

[23] Daniela DeBono, “’Less than Human.’” 78.