Saturday, August 13, 2011

The Bloody Code

I don't think that Mike knew that amongst my vast qualifications that I am qualified to sit as Second Chair on Capital Murder trials and do Death Penalty Post Conviction Relief advocacy. Not that I have done that many murder trials, but anyway. And since Mike said that one of his interests was the death penalty, it seems appropriate that I do some posts on that topic.

But I am more interested in a historic topic now, the Bloody Code which was the name given to the English legal system from the late 17th century to the early 19th century (in particular, the period between 1688 and 1815). This was not the name used for the legal system at the time, but was given at a later time due to the sharply increased number of crimes that attracted the death penalty.

No of crimes carrying the death penalty
1688 50
1765 160
1815 225

There were many reasons why the English legal system was so harsh at this time. First, the attitudes of the wealthy men who made the law were unsympathetic. They felt that people who committed crimes were sinful, lazy or greedy and deserved little mercy. Secondly, since the rich made the laws they made laws that protected their interests. Any act which threatened their wealth, property or sense of law and order was criminalised and made punishable by death. You could be executed for stealing anything worth more than five shillings (equivalent to approximately £30 today)! Thirdly, the law was harsh to act as a deterrent.

It was thought that people might not commit crimes if they knew that they could be sentenced to death. This was also the reason why executions were public spectacles until the 1860s. The authorities believed that hanging criminals in public would frighten people into obeying the law and refrain from committing crime. From 1816 in Durham, hangings were carried out at the front of the Crown Court with crowds of people coming from far and wide to watch. Some well-off members of the public even hired the balconies of local houses and the Dun Cow pub to get a better view! In London, the hangings were held in Tyburn with thousands turning out. The intention was clearly to act as a deterrent to others to observe the laws--or else.

Some of the crimes carrying the death penalty in the 1700s
  • stealing horses or sheep
  • destroying turnpike roads
  • cutting down trees
  • pickpocketing goods worth more than one shilling
  • being out at night with a blackened face
  • unmarried mother concealing a stillborn child
  • arson
  • forgery
  • stealing from a rabbit warren
  • murder

Offenders escaped the noose at many points: sometimes the charge was reduced to below capital levels (this could go to ridiculous lengths, as in the charge "Stole £5 value 10 pence"). Juries were reluctant to find people guilty. Judges let offenders off and offenders sometimes agreed to join the army or navy instead. As a last resort, petitions for mercy were often answered. The system therefore held the death threat in readiness, but could show mercy: either way, power of life or death lay with the powerful. Amazingly, fewer people were hanged under the Bloody Code than before it. Numbers of people hanged per year in London and Devon:

Early 17th century Early 18th century
London 150 20
Devon 25 3

What was the reason for the reticence to resort to Capital punishment? It is fair to say that the 'Bloody Code' did not work very well. Trials for serious offences sometimes lasted only a few minutes, there was often no chance for the defence to present their case and, to the modern eye, it seems like it was a lottery whether the accused would be found innocent or guilty. As always, it was easier if you were rich. You could afford proper legal representation and persuade the wealthy and famous to act as character witnesses for you.

However, the main problem with the 'Bloody Code' was that juries were often unwilling to find the accused guilty knowing that the punishment was execution. Indeed, so desperate were some judges to secure results that they deliberately under-valued stolen goods so that the accused would no longer face the death penalty. Evidence suggests that despite the 'Bloody Code' fewer people were hanged in the 18th century than previously. It has been estimated that around 200 hangings took place each year in England and Wales at this time.

Other punishments also existed besides the death penalty. In medieval times, criminals could be branded (burning a mark onto the skin), or mutilated (chopping off a limb such as an arm or a leg). The guilty could also be publicly whipped or humilated in the pillory or stocks.

Even those sentenced to death might not be executed at during the time of the Bloody Code. Criminals were often given the chance to avoid death by joining the Army or the Navy or to be transported to the colonies in America and Canada, and later Australia. The Transportation Act of 1718 introduced penal transportation as a punishment. People convicted of capital crimes had their sentences 'commuted' to 14 years or life in the Americas. Convicts found guilty of non-capital crimes received seven-year sentences. Between 1718 and 1776, over 50,000 convicts were transported to Virginia and Maryland in the modern United States. In fact, transportation became a very popular mode of punishment. It has been estimated that over one-third of all criminals convicted between 1788 and 1867 were transported to Australia and Van Diemen's Land (now Tasmania).

The other form of punishment which became increasingly popular with the authorities was incarceration in prison. The reason for changes in criminal punishment came from the fact that the ‘Bloody Code’ was arbitrary and savage and that the reformers’ stance was beginning to be seen as the morally just position. Penal reform began with the abolition of capital statutes urged by Romilly and Mackintosh and largely carried out by Sir Robert Peel and Lord John Russell when Home Secretaries in the 1820s and 1830s. It gathered pace as the government took an increasing role in the organisation and supervision of prisons with the opening of Millbank in 1816 and Pentonville in 1842, with the creation of the prison Inspectorate in 1835 and the centralisation of the whole system under the Home Office in 1877.

In 1823 the Judgement of Death Act 1823 made the mandatory death penalty discretionary for all crimes except treason and murder. Gradually during the middle of the 19th century the number of capital offences was reduced, and by 1861 was down to five. These were murder (suspended 1965, abolished 1969), piracy (1998), arson in a naval dockyard (1971), espionage (1981) and high treason (1998).

The London Metropolitan Police, established in 1829, promoted the preventive role of police as a deterrent to urban crime and disorder.

My real reason for mentioning the Bloody Code is that it would have been known to the Founders at the time of the War for Independence. It is the background against which the phrase. "no cruel or unusual punishments" originated. Additionally, it was a reason for the due process guarantees found in the Bill of Rights. Yet, we are seeing a culture that would return to the culture of the Bloody Code, or worse in the United States? Why?

See also:
Wikipedia--Bloody Code
Crime and Punishment in Durham > The Bloody Code
The National Archives--Crime and Punishment
Women under the “Bloody Code”
Punishment and the Bloody Code

1 comment:

  1. Laci wrote:
    "My real reason for mentioning the Bloody Code is that it would have been known to the Founders at the time of the War for Independence. It is the background against which the phrase. "no cruel or unusual punishments" originated. Additionally, it was a reason for the due process guarantees found in the Bill of Rights. Yet, we are seeing a culture that would return to the culture of the Bloody Code, or worse in the United States? Why?"

    Because 1. Too many Americans have either the most superficial and inaccurate education in history - including our own; and/or they believe the ill researched or outright fabricated revisionist history of fake historians like David Barton and his wall-builder crap. (that would include both separation of church and state, and 2nd amendment history btw)
    2. a characteristic of the right is to opt for simplistic, usually harsh punishment in the mistaken belief that it somehow works when it does not, in all situations.

    It seems to be related to both the bulging distortions of their amygdala which are associated with fear response, and the related tendency to authoritarianism that is well documented.

    They fear reality, and in response, they distort it, and react with inappropriate violence or other harshness to it.

    That is why you have the dictionary definition of reactionary:
    Cultural Dictionary
    reactionary: definition
    "An extremely conservative person or position that not only resists change but seeks to return to the “good old days” of an earlier social order."

    Except that they don't really know anything factually accurate about those 'good old days'.

    Wonderful post! I can only hope that those who need this education the most won't be too resistant to it.