Essay 2 – Crime and Punishment
Question
Was the increase in crimes punishable by death in eighteenth-century Britain – the so-called
‘Bloody Code’ – a deliberate tactic of the ruling class to manipulate the poor and maintain socio-
political control, as argued by some scholars such as Douglas Hay?
Essay
The English ‘Bloody Code’ implemented in 1723 witnessed a change to the social and political order through a violent means of law, witnessing mass murders until the 19th century. The key role historians such as Douglas Hay’s have “given to the Bloody Code in maintaining the hegemony of the eighteenth-century elite” (King & Ward, 2015, p.161). The executions were particularly brutal towards the lower classes, which could be attributed to the rapid expansion of industrialisation, leading to urban poverty and an increase in crime, as stated by King and Ward the Bloody Code played “a vital role both within the criminal law and in 18th century social relations” (King & Ward, 2015, p.159). Fascinatingly, although the Bloody Code’s implementation in urban England and the eastern peripheries witnessed a brutal introduction, the law did not expand in the Northern and Western peripheries, including Scotland and Wales. Due to the low crime rate in Scotland, Wales and the Northern peripheries, the necessity for such an extreme judicial system can therefore be argued. Regardless of the peripheries, the Bloody Code’s harsh punishments successfully reduced crime rates whilst also continuingly instilling the reinforcement of authority and further distinguishing the substantial social inequalities between upper and lower classes in 18th century England. Although I will be shedding light on the Bloody Code and Douglas Hay’s theories of the Bloody Code, the Bloody Code itself is incredibly multifaceted so it is hard to develop a concrete analysis of the bloody code, without evaluating other theories on crime and socio-political inequalities in 18th – 19th century England.
Douglas Hay, a prominent legal historian particularly focusing on 18th century England’s judicial structure argues a harsh capital offence as a deliberate method of maintaining the lower classes’ powerlessness maintaining the political power of the upper-class. Douglas’ work on the Bloody Code brought forward many interpretations and analysis on the topic of the Bloody Code, many historians such as Innes and Styles mention Douglas in their articles often to consolidate their opinion “Hay’s own account of the indirect contribution made by the drama of terror and mercy to the maintenance of the social order” (Innes & Styles, 1986), p.411). Douglas’s analysis on the legal system therefore points towards the maintenance of socio-political control amongst the Bloody Code, and its impact on the upper classes and the authority of the political regime, subduing and annihilating the lower classes attempts to rise against the absolute authority of the upper classes through harsh penalties, often resulting in death. Hay’s analysis explores how the Bloody Code was enforced to maintain law, power, and control amongst the population. Although Douglas’s opinion is purely socio-political, others argue reason to believe there was a significant increase in criminal activity in 18th century England due to factors such as rapid industrialisation.
Although the existence of crime and punishment can be easily examined within the judicial system, the aspect of perpetual social control is inarguable as the elite were effectively and efficiently maintaining the social inequalities between the lower and upper classes. The increase in crime and political unrest during this period can be attributed to the rapid advancement of the industrialisation of England throughout the 18th and 19th centuries. Rapid industrialisation led to increasing poverty in urban society and resulted in crimes such as thievery, pickpocketing, and property crimes. The increase in crime can be cross-examined with Scotland and Wales where rural crime was low, this was due to the lower poverty rate. There was a genuine need for an implementation of strong laws to subdue crime in urban areas of England, this is an inarguable statement, stronger crimes require stronger law. The Bloody Code however was an extreme form of judicial control over the rapid increase of urban crime, the penalties such as hangings, executions and the demonstration of public spectacles was a form of tyranny amongst the poor sociodemographic to instil fear and control amongst the population. The other aspects of the Bloody Code such as the maintenance of social inequalities and maintaining authority amongst the elite are other theories which are consistent with states during this era of our world. The absolutism established in France as example and the French Revolution was a demonstration of authoritarianism and the subduing of the lower class to maintain control and benefit the upper classes. The siege of the Bastille and the French revolution itself is the perfect example of social upheaval, social reform, and a backlash towards the elite from the peasants, the Bloody Code was implemented in English society to stop social upheaval such as the French Revolution which occurred alongside each other.
The potentiality for social uprising in England similarly to the French Revolution demonstrates the power of the Bloody Code and reinforces Douglas Hay’s interpretation of the Bloody Codes purpose. The maintenance of power amongst the upper class, and the authority over the lower class, shares the success of the judicial system. The selective enforcement of law amongst the lower classes and political dissidence and labour activists in urban England reiterated the power of the elite and the social structure of 18th and 19th century England. Douglas Hay’s analysis directly resembles these traits amongst the Bloody Code.
Through these factors established above, I am under the opinion that the main reason for the Bloody Code, was not a form of justice, it was a form of social control. Douglas Hay leads towards the law being a maintenance of socio-political control, where through my explanation we can understand the rising crime rates, industrialisation, poverty, perceptions of moral decay and the attempts of the elite both protecting their role and maintaining the power over the rapid introduction of industrialisation and the development of poverty in urban settings. The slower introduction of industrialisation and the lack of implementation of the Bloody Code and it is lack of necessity in Northern and Eastern peripheries points towards the increased rate of poverty amongst population. The demonstrations and spectacles of executions demonstrate a form of absolute power the elite hold over the population, reinforcing their power during an era which has experienced social and political upheaval due to the aggressively poor treatment of the lower classes from the power-hungry upper class.
We then therefore understand the multiple understandings on 18th century Britain, it is socio-political struggles and the increasing urban poverty rates due to England’s rapid expansion of industrialisation. The country itself was formerly feudalist so the rapid increase of industrialisation and the power shifts, resulted in abandonment of the lower class, an attempt by the upper class to subdue the poor and maintain their power and the increase of crime in urban settings. These factors are the reason the bloody code was implemented, to punish crimes yet also used as a machine to maintain similarities of the prior feudalistic caste system. The Frech Revolution shares a remarkably similar story to the Bloody Code, and both led to executions amongst its population. To reiterate myself above, the Bloody Code and its implementation holds a heavily multifaceted component, which I will elaborate on through analysing separate prominent historical figures researching 18th Century England. Simon Devereux examines the history of the statutes, mentioning the four main criminal offences punishable by execution being Robbery, Burglary, stealing in a dwelling and forgery (Devereux, 2017, p.452). Although not punishable by death, these criminal activities were all statutes being introduced in the last decade of the 1600’s and punishable by death in the early 18th century.
Whilst Douglas Hay’s analysis relates to the harsh penal system, delving into the socio-political and the social class system, Peter King, and Richard Ward’s “rethinking the bloody code in eighteenth century Britian: capital punishment at the centre and on the periphery” (King & Ward, 2015) analyses the effectiveness of the bloody code and its management, exploring how on the London peripheries and strangely, even within inner London. King and Ward initially demonstrate a quote from famous historian Gatrell who states “the sanction of the gallows and the rhetoric of the death sentence were central to all relations of authority in Georgian England” (King & Ward, 2015, p.160), whilst King and Ward would further argue that no, the law itself didn’t seem to spread far out of London, frequently mentioning that Northern and Northeastern areas including Scotland and Wales, barely implemented executions. King and Ward demonstrate their findings through judicial papers which have remained intact. Whilst in London there were 3.8% out of 100,000 were executed, Northern Britian experienced almost no executions as King and Ward mention “The impact of the Bloody Code was like the ripples caused by a stone thrown into a pond” (King & Ward, 2015, p.166). A stark need for the Bloody Code was for property offenders, who were the most common criminals receiving the death penalty, resulting in moral panic, causing a craze amongst the population fearing for their safety. King and Ward display the number of total executions, in 1965 alone 1,056 individuals were executed in London, in comparison to Wales and Scotland which totalled thirty-six individuals (King & Ward, 2015, p.169). King and Ward’s paper demonstrate the complexity of the Bloody Code, the lack of its implementation and the absurd nature of the executions themselves whilst also questioning the necessity, highlighting the socio-political and economic differences between inner London and it’s peripheries, I believe the advancement of industrialisation, the economic necessity for families to move to London and the byproduct of poverty, led to an extreme law to both stop these criminal acts from occurring but to also maintain safety amongst the upper classes demonstrated by the moral panic of 1744 and the extreme punishments as a result.
Norma Landau’s article “Law, Crime and English Society, 1660-1830” (2002) examines the progression of the English legal system and how it shaped English society in the 18th century. Landau initially explores 17th century laws to demonstrate the progression of the judicial system, elaborating on the abolition of slavery and it’s implementation into the laws on impressment and the Navy, detailing that if slavery was now illegal, then the negation of enforcement of citizens to join the Navy should be a linear step in judicial matters, yet English law would not abide by the opinions of its citizens, as political figures such as Sir Robert Walpole maintained impressments and forced Navy service stating that “to assert the empire of the sea” and to protect “our dominions of the greatest value” (Landau, 2002, p.74). The impressment on civilians was extensively concentrated on the lower classes of the socio-demographic of English society, demonstrating one of a plethora of privileges of the upper classes where “the bloody code of the eighteenth century was deeply intrenched in the prejudices of important people (Sherwin, 1946, p.187).
Harriet Evan’s “The Bloody Code” (2013) stated by Evan’s “focuses on the Bloody Code in the second half of the eighteenth century” (Evans, 2013, p28) and to examine to “what extent the Bloody Code was to the discretion of the judge, jurors and prosecutors to mitigate and nullify the law” (Evans, 2013, p.28). Evan’s also mentions Douglas Hay throughout his article as a reference to his opinions regarding 18th and 19th century capital punishment, under the banner of the ‘Bloody Code’. Evan’s argues that after the glorious revolution of 1688 once the parliament asserted it’s authority over the monarch, the “number of capital offence statutes in England and Wales grew from 50 to 200 by 1820” (Evans, 2013, p.29). Evan’s claims that it was the drastic increase in offences resulting in death sentences that “led to the era being labelled as the Bloody Code” (Evans, 2013, p.29). Evan’s also mentions Douglas Hay’s analysis on the Bloody Code as a socio-political method of maintaining upper-class power, quoting Hay’s “Again and again the voices of money and power declared the sacredness of property in terms hitherto reserved for human life” (Evan’s, 2013, p.29), demonstrating the power of Hay’s quote, stating that 35,000 individuals were sentenced to death and 7,000 being executed between 1770 – 1830 an astonishing 60 year period, distributed mostly over property crimes.
Evan’s describes multiple historians’ opinions on the judicial system, regarding judges, jurors, and parliament, describing the varying levels of discretion involved in each role. Evan’s also explores the sentence which could be offered instead of the death penalty, the transportation to the America. Throughout the period of the 18th century the trials were lawyer-free as described by Evan’s, this resulted in the outcome being under the discretion of the judge and jury to try the individual. In the latter part of the 18th century introduced a defence counsel although Evan’s observation is that the “purpose of defence counsel was to simply cross-examine witnesses. What ensued however was a manipulation of ‘cross-examination for the purpose of making a [defensive] argument” (Evans, 2013, p.34). These observations effectively examine that although the accused had no lawyer, the latter stages of the 18th century witnessed the accused being able to develop their defence through the defence counsel, introducing a method to maintain a fair trial. Although an advancement in the judicial process, this new development in the judicial system resulted in a slim few having a positive outcome during their sentence. The “judges, jurors and prosecutors, along with other pre-trial bodies, acted with great discretion” (Evans, 2013, p.34) maintaining control and absolute discretion over the verdict.
Evan’s argues that “the Bloody Code was effective in the absence of discretion” (Evans, 2013, p.35), further mentioning that the industrial revolution effected the economy and witnessed a dramatic transformation due to increase of the population from “7 million in 1770 to nearly 14 million in 1830 (Evans, 2013, p.35). Evan’s also elaborates on the issues with France throughout the 18th century to understand where the social unrest due to industrialisation and an increasing society, and the result which occurred throughout the French revolution. As a result, familiarly to France, the Bloody Code is heavily argued because of the French Revolution and English social unrest to maintain society, preventing the class upheaval which occurred in France. Evan’s explores the effectiveness of the Bloody Code due to “discretion and the strict application of the law” (Evans, 2013, p.36). The French Revolution’s news travelling to England, further reiterates the power of press to consolidate severe punishments, preventing a social upheaval or demolition of the upper class.
In regard to Douglas Hay’s interpretation of the Bloody Code Evan’s argues the judicial system and it’s objective. The lack of discretion and the inability for the accused to present their defence developed a poor legal system. Further Douglas Hay refers to the maintenance of socio-political control, and Evan’s agrees with this theory, but further analyses the historical period. The French Revolution, Industrial revolution and the drastic increase in population is argued by Evan’s to be the cause of the implementation of the Bloody Code, elaborating on France during the 18th century and effectively mentioning that the Bloody Code was implemented to reduce the chances of a social upheaval and the demolition of the upper class. Therefore, Evan’s article shares similar views to Douglas Hay, the result of the Bloody Code was a poor judicial system, implemented to stop the demolition of the class system which dictated English society in 18th century Britain. Evan’s concludes by mentioning the only reason the Bloody Code was maintained for such a long period of time was due to, “discretion and merciful pardoning instead of a strict application of the capital statutes” (Evans, 2013, p.38) as although 35,000 individuals were sentenced to death, only 7,000 were executed between 1770 – 1830.
Phil Handler’s article “forgery and the end of the bloody code in early nineteenth century England” (2005) explores the downfall of the Bloody Code. Handler examining the demise of the Bloody Code describes “the label of the Bloody Code has survived to define the whole era of criminal justice in the long eighteenth century” (Handler, 2005, p.684), demonstrating the significance the Bloody Code had in English history. Handler describes the historical importance and how unspeakable the Bloody code was through metaphor “every page of our statute book smelt of blood” (Handler, 2005, p.684). As Douglas Hay’s examines the Bloody Code as a tactic of the ruling class to manipulate the poor, Handler adds to Hay’s opinion by stating that “reformers established the image of law as a ‘bloody code’, dangerously out of touch with the people it was supposed to protect” (Handler, 2005, p.684) this helps consolidate Hay’s opinion as although the Bloody Code protected the rich, it failed to protect the lower sociodemographic, whilst the reformers recognised this prominent issue. Calling for a reform in the statute for the death penalty, 19th century reformers including Samuel Romilly and James Mackintosh adopted a change which would reduce the number of offences which could result in the death penalty to only murder cases. The reform developed quickly between 1810 to 1832 under the reform act, spearheaded by reformists including James Mackintosh and Samuel Romilly. Historian Follett argues “in practice, few offenders were hanged, but to reformers that fact, combined with the random selection of those who were, proved that the existing laws were inappropriate (Follett, 2001, p.1). The downfall of the Bloody Code and it’s extent of capital punishment led to an increase in transportation as a punishment, where many convicts instead of being executed would be transported to locations such as New South Wales Australia, developing the convict colonies in New South Wales, Newcastle and Van Diemen’s Land spurring a new economy for England (Moore, 2019, p.19).
I have cross examined historians including King and Ward, Norma Landau, Harriet Evans and Phil Handler to understand the Bloody Code and it’s consequences on a broader scale. Understanding these various opinions helps gather and articulate such a multifaceted and important legislature in English history. King and Ward’s article “Rethinking the Bloody Code in Eighteenth-Century Britain: Capital Punishment at the Centre and on the Periphery” (2015) helps exceedingly regarding the geography of the Bloody Code, explaining the difference in administration of the Bloody Code in inner London in comparison to it’s peripheries, demonstrating that the law was not strictly implemented in all regions of England. This is important as it demonstrates the various levels of crime distributed in England, illustrating the impacts of industrialisation, urbanisation, and the impacts of a poor socio-economic structure within London. Norma Landua article “Law, crime and English society, 1660–1830” (2002) examines the evolution of law and it’s relationship with crime in English society, elaborating on societal norms and it’s power structure. Phil Handler’s “Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England” (2005) concludes my cross examinations by highlighting the severity of the punishments under the Bloody Code, often disproportionately affecting the poor and marginalising members of society. Handler elaborates on the demise of the Bloody Code, via reformists pursuing more reasonable statutes regarding the death penalty, where it would develop to be only applicable to murder cases.
Through cross examination of these historians, I am under the opinion that the Bloody Code was a deliberate tactic of the ruling upper class to manipulate the poor. Various evidence points towards multiple factors including but not limited to – urbanisation, rapid expansion of industrialism and the anxiety regarding social upheaval alike France in the same era. Social control, justice and economic issues were all related to these factors we see in multiple areas where rapid industrialisation and urbanisation did not exist such as Scotland, Wales and the Northern peripheries of England did not experience numbers of execution even close to inner London. Social control regarded harsh punishments aimed at instilling fear into the lower-class citizens, resulting in a deterrence to create dissent and maintain stability amongst the upper-class. Industrialisation and the resulting urbanisation led to an increase of crime, the implementation of the Bloody Code was to also deter crime in general, although using exceeding force via public executions. The presence of the French Revolution during the 18th century, occurring alongside the bloody code, press matters involving the revolution caused a panic amongst the upper class, as in France it was a complete upheaval of the class system, structured very alike the English society. Historian Shoemaker asks the question ““why did the number of offences subject to capital punishment increase over the century when the number of executions decreased? His answer to this question is essentially that of Douglas Hay: the principal aim of the death penalty was not deterrence, but social control” (Shoemaker, 1991, p.768), to maintain the power of the upper class, to deter an uprising, to control society and it’s continuation of poverty amongst the majority, a means to maintain social, political and the economic control (Sherwin, 1946,p. 187).
References
Landau, N. (ed.) (2002) Law, crime, and English society, 1660–1830. Cambridge: Cambridge University Press.
Evans, H. (2013) ‘The Bloody Code’. Available at: https://hummedia.manchester.ac.uk/schools/law/main/research/MSLR_Vol2_3(Evans).pdf
King, P. and Ward, R. (2015) ‘Rethinking the Bloody Code in Eighteenth-Century Britain: Capital Punishment at the Centre and on the Periphery’, Past & Present, 228(1), pp. 159–205. doi: 10.1093/pastj/gtv026.
Handler, P. (2005) ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’, The Historical Journal, 48(3), pp. 683–702. Available at: http://www.jstor.org/stable/4091719
Devereaux, S. (2017) ‘Execution and Pardon at the Old Bailey 1730-1837’, The American Journal of Legal History, 57(4), pp. 447–494. Available at: https://www.jstor.org/stable/48545066
Follett, R. R. (2001) ‘Mitigating the “Bloody Code”: an Introduction. Evangelicalism, Penal Theory and the Politics of Criminal Law Reform in England, 1808–30’, pp. 1–20. doi: 10.1057/9781403932761_1.
Shoemaker, R. B. (1991) ‘The “Crime Wave” Revisited: Crime, Law Enforcement and Punishment in Britain, 1650-1900’, The Historical Journal, 34(3), pp. 763–768. Available at: http://www.jstor.org/stable/2639575.
Innes, J. and Styles, J. (1986) ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’, Journal of British Studies, 25(4), pp. 380–435. Available at: http://www.jstor.org/stable/175563.
Moore, J. M. (2019) ‘Expansion, Crisis, and Transformation: Changing Economies of Punishment in England, 1780–1850’, Social Justice, 46(4), pp. 5–30. Available at: https://www.jstor.org/stable/26952586.
Sherwin, O. (1946) ‘Crime and Punishment in England of the Eighteenth Century’, The American Journal of Economics and Sociology, 5(2), pp. 169–199. Available at: http://www.jstor.org/stable/3483581.
