Justices and constables, continuing into the 18th Century from medieval times, did the remaining work in the justice system. And why not? Monarchs found them useful, and indeed, bogged them down with “stacks of statutes”. It was a mutually beneficial system. The Government approved, because they didn’t pay the constables or Justices any salary, so it was a cheap way of maintaining order. The Justices approved, because the prestige and power that came with the position was far more important than the pay. They ran the locality and were like the local potentates. Petty constables were chosen for a year from the community’s people, and were among the more influential and well-established townsfolk. [Emsley, 1996]

WHAT WAS THE BLOODY CODE AND WHY WAS IT PASSED?

Over the centuries, crime and criminal justice changes and undergoes several ‘revolutions’. One of the most crucial factors affecting this system is the government and its attitude. It is the governments who can decide which actions constitute a criminal offence and which don’t because they pass the laws.

Let us examine the movers and shakers of that turbulent time. In the period of the Bloody Code, England had evolved into a more prosperous, and, on the whole, a more peaceful nation. Yet tensions were splitting and polarizing the country. The religious Reformation gave rise to hostilities and conflicts between the Roman Catholics and the Protestants. Civil war had drained the country. Rising population on the tiny island territory was causing problems of overpopulation, poverty and inadequate resources. This forced many people into rebellions and uprisings.

Several people had become very rich indeed during this period, and they had the most to lose, unlike the poor, who were fighting for their daily bread. The rich felt that the rebellious poor were a threat to them and their assets, and they wanted order restored through the criminal justice system. The landowning class had emerged as the supreme power in England. They saw the law’s main purpose as being protective of the source of that power – their property. They used the increased power of the Government to define various activities as crimes, major, and more often, minor. Several people were now perceived as criminals – and their punishment – execution.

Since there was no police force, the power of life and death rested in the hands of the magistrates. After 1660 the capital offences increased almost exponentially; from 50 to 160 by 1760 and an incredible two hundred eighty eight offences for which a person could be executed in 1815. [Beattie, year unknown]

Several of these offences were both trivial and ridiculous. A person could be hanged for spending a month in the company of gypsies, damaging Westminster Bridge, cutting down a tree or impersonating a Chelsea pensioner. Other punishable offences under this series of laws were vagrancy for soldiers and sailors, “strong evidence of malice” in children as young as seven, stealing goods worth 25 pence, pilfering from a Naval dockyard or a shipwreck and letter stealing. Imagine getting hanged for investigating your neighbor’s mail! But such was the system of criminal justice in the 1700’s. These harsh and cruel laws were collectively known as the “Bloody Code”.

WAS THE BLOODY CODE REALLY BLOODY?

The idea of 288 crimes punishable by death is quite extreme. But were all the people convicted under the “Bloody Code” executed? Let us examine a statistic comparing the deaths in London and Devon during the Early 17th Century and the Early 18th Century (pinnacle of Bloody Code utilization).

Contrary to expectations, we find that fewer people were hanged under the Bloody Code than before it came into existence. This leads us to the conclusion that the Bloody Code was mainly a scare tactic – a ploy to strike fear of hanging into the hearts of potential lawbreakers and rebellious elements. The Bloody Code was a warning to anyone even contemplating a shady deed. Be it treason, murder, arson and rape or animal theft, maiming of cattle, letter filching and concealment of effects by feigning bankruptcy – the punishment was the same. It was to be a reason for people to live a perfectly ordered, crime-free existence.

The Bloody Code was based mainly upon its provisions for inflicting capital punishment upon criminals found guilty. However the number of executions did not equal the number of indictments. As we shall see in the next section, there were a number of ways to escape such a fate. Another statistic states that only 10 percent of those indicted in London actually received the punishment that they were sentenced to receive. [Mc Lynn, 1989]

This does lead us to the conclusion that the Bloody Code was not as bloody as it might appear at first glance. It was a system by which the ruling classes could keep the majority of the poor, illiterate population firmly under their thumbs. English rulers could keep the sentenced prisoners ‘in suspense’. “Their principle aim was social control. Pardons played an important role in this, for 'acts of mercy helped create the mental structure of paternalism…mercy was part of the currency of patronage’”. [Mc Lynn, 1989]

But a major reason that explains the dearth of executions during the “Bloody Code era” was the various ways available to get out of such a punishment, and if one had connections in the appropriate places, a pardon. In fact, thousands escaped the noose with the ‘blessing’ of the magistrates and the ruling parties. Juries decided the charge and they rarely sent a criminal to the hanging-man. Judges sometimes let offenders off if they would agree to join the army or navy instead. If all else failed, a petition for mercy would often be answered. [Linebaugh, 1991] The system at the time of the Bloody Code therefore held the death penalty like the Sword of Damocles over the heads of the people, but could and often did show mercy.

Let us further understand the reason why they did this. It was hardly about benevolence. Indeed, the policies of English law were brutal and unforgiving, but the magistrates realized that incessant use of the death penalty would defeat the very purpose of passing such a severe sentence. A system of criminal justice that kills more killers than killers kill others seemed extreme and un-necessary to many. The innate sense of ‘English justice’ didn’t seem to gel with the idea of English society living in fear of the monarch or the law enforcers.

Another reason was the practical aspect of it. To understand this, let us examine this idea from another angle – that of the lawmakers. Because of the absence of a cogent, cohesive law-enforcement Agency such as a police force, and because of the existing social banes such as poverty, hunger and desperations; and due to the incredible number of punishable offences, there were tens of thousands of such ‘criminals’, from ninety year old men to five year old boys. It follows, therefore, that only a tiny fraction of these can be tried (England does have, after all, courts of justice) and as we shall discover later, an even smaller number of such offenders actually met their deaths on the scaffolds.
Perhaps this was why less than sixty per cent of those sentenced were actually executed, and in many parts of England, those numbers dropped to 30 per cent or less. [Groom, 1999]

WAYS TO ESCAPE THE DEATH PENALTY:

In this section we shall explore an important and relevant reason for the “Bloody Code” not being bloody. The system of justice had many holes that enabled criminals to slip out of the noose.

(a) Clergy: Criminals convicted of a crime could, under this system, receive a pardon through the Church, as it was law that men of the cloth could only be tried by ecclesiastical courts.
(b) Literacy: The court was also, up to a time, given the right to slash the sentence of a prisoner from execution to jail time if the person was able to prove their literacy.

(c) Pregnancy: If a woman was with child, she would almost surely be granted a pardon from the death sentence. At Newgate Prison, on death row, women grouped together in a cavernous ward on the top floor. Their goal was to find men to impregnate them, so they could “plead their belly”. [Mc Lynn, 1989]

(d) Family: In a similar manner, a jury would sympathize with a man who had a family and had been driven to commit a crime to feed them, rather than a man who had stolen for his own benefit. [American Jurisprudence, 1995]

(e) Royal Pardons: At any given time there were between 20 to 600 prisoners on Death Row awaiting word on a pardon from the King. De facto pardons were granted so that the litigants of a case could argue for ‘mercy through precedent’. [Mc Lynn, 1989] Two factors determined whether a pardon would be granted: the violence of the crime and the reputation of the criminal.

(f) Age: Children were also liable to be arrested under the Bloody Code statutes. A relevant example here would be that of William York in 1748. When he was ten, he shared a bed with five year old Susan Mahew in a poorhouse in Suffolk. On May 13, William trailed Susan to a nearby dunghill, and proceeded to slash her to the bone with a knife and a fishing hook. After he had killed her he washed her body and buried her in the dunghill. He was proven guilty. His reasons for killing Susan were that she was sulky and that she had wet their bed. Interestingly enough, this murder had neither of the elements that characterized pardons – the crime was brutal and William, living in a poorhouse, had no one to vouch for his character. Yet, William was eventually pardoned. [Barrett, Andrew, Harrison, 1999]

THE BANSIHMENT OF THE BLOODY CODE:

All the above loopholes made the criminal justice system inconsistent and confused. By the end off the 18th Century it was time for a change. Opposition to the 288 penalties inviting the death penalty began to rise. Under the law of the time, a crime and execution were synonymous. The same is expressed herein: we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offense felony, the law implies that it shall be punished with death, viz., by hanging as well as forfeiture. [Blackstone, Wm., Knight. Chase, George, 1936]

As early as 1766, Oliver Goldsmith questioned the validity of the Bloody Code criminal justice system, in the following words: "Nor can I avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offenses of a slight nature. In cases of murder their right is obvious, as it is the duty of us all from the law of self-defense to cut off that man who has shown a disregard the life of another. Against such nature rises in arms; but it is not so against him who steals my property…When by indiscriminate penal laws the nation beholds the same punishment affixed to dissimilar degrees of guilt, the people are led to lose all sense of distinction in the crime and this distinction is the bulwark of all morality.” [Encyclopedia Britannica, Vol. 5, 1910]

Goldsmith’s point was a valid one, and one of the main fallacies of the Bloody Code system of criminal justice. Blackstone’s Commentaries drew attention to how the system was destroying morality and respect for the law because of ‘indiscriminate use of the death penalty’. [Blackstone, 1765]

The first important step towards the abolition of the Bloody Code came in 1808, when Samuel Romilly introduced reforms to abolish the death penalty for some of the 200-plus offences punishable by death [Mc Gowen, 2002]. Following that, in 1824, the Select Committee on the Consolidation and Amendment of the Criminal Law was directed to reform the system of criminal justice. Further restrictions on the use of capital punishment were passed in 1832 and 1833, when the Royal Commission was appointed, to produce a replacement to existing common and statute law.

The Bloody Code did imprison several people for trivial crimes, and the system of justice was flawed and unbalanced, but on the whole it cannot be classified as ‘bloody’.

Between 1832 and 1834 Parliament took measures to punish a crime with severity depending on the crime in question. This, in fact, served to increase the number of convictions, as Justices could now pass appropriate sentences instead of letting off criminals for crimes that they felt were undeserving of death.

It was the beginning of the end of the Bloody Code. New crimes are created, old ones abandoned. The system of justice undergoes a thorough change, and the law takes its course.

REFERENCES:

1. McLynn, Frank. Crime and Punishment in Eighteenth-century England. New York: Routledge
2. Barrett, Andrew and Christopher Harrison, eds. Crime and Punishment in England: A Sourcebook. London: UCL Press Limited, 1999. p. 158-160.
3. Blackstone, Wm., Knight. Chase, George, ed. Chase's Blackstone Commentaries on the Laws of England in Four Books. New York: Baker, Voorhis & Co., 1936, p520.
4. "Capital Punishment." Encylopaedia Britannica, Eleventh Edition. New York: Encyclopaedia Britannica Co., 1910, Vol.5, p280.
5. William Blackstone, “Commentaries on the Law of England” (Oxford: Clarendon Press, 1765; reprint, Chicago: University of Chicago Press, 1966), 4:1--5, 237--40.
6. American Jurisprudence 2d, Sections 1-9, "Husband and Wife", Lawyers Cooperative Publishing, New York (1995).
7. Emsley, Clive. Crime and Society in England, 1750-1900. 2nd ed. New York: Longman Publishing, 1996. Table 10.3, p 261.
8. "Mayhem." Encyclopedia Britannica, Eleventh Edition. New York: Encyclopedia Britannica Co., 1910. Vol. 17.
9. "Capital Punishment." Encyclopedia Britannica, Eleventh Edition. New York: Encyclopedia Britannica Co., 1910. Vol.5, p278.
10. Linebaugh, Peter. The London Hanged: Crime and Civil Society in the Eighteenth Century. London: Allen Lane, Penguin Press. 1991. p. 81.
11. McGowen, R. 'Making the "Bloody Code"? Forgery legislation in eighteenth-century England', in Norma Landau (ed), Law, Crime and English Society, 1660-1830. Cambridge, 2002.
12. Beattie, John. 'London crime and the making of the "Bloody Code", 1689-1718', in Davison et al (eds), Stilling the grumbling hive.
13. Groom, Nick, ed. The Bloody Register. vol 1. Routledge, New York. 1999. p. 117-118.
14. “The national Archives Learning Curve” - <www.learningcurve.gov.uk/ candp/punishment>
15. “Pardons”, “Last Mile Tours” – <www.umich.edu/~ece/student_projects>