Punishment and the Bloody Code

Between 1830 and 1914, there were three major changes in the ways convicted offenders were treated. First, there was a shift from death or transportation as the major punishment for felonies to imprisonment in custom-built prisons.[1] Secondly, there was a shift, admittedly less marked, from the personnel of the courts making all key decisions about the offender to the experts in the new prison system making some of those decisions. Finally, once it was agreed that most offenders should be sent to prison, the crucial arguments centred on to what extent prisons were places of punishment or reformation.

The traditional view of changes in punishment accepts that the ‘Bloody Code’ was arbitrary and savage and that the reformers’ stance was moral unassailable. 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.

Revisionist historians accept the savagery of the ‘Bloody Code‘ but have been more subtle in assessing its arbitrariness and see the emergence of the new prison system as a further institutional solution to the need for social control and discipline paralleling the workhouse established under the new Poor Law. In many respects, the arguments of traditionalists and revisionists are the mirror image of each other. In the traditional Whig view, the humanitarian and progressive nature of penal reform fits with the humanitarian and progressive requirements of the liberal democratic society that emerged in the early-nineteenth century. In the revisionist account, there is a fit between the new system of prison and punishment and the control requirements of the developing capitalist system.

The ‘Bloody Code’ in 1800 had about 200 or so capital offences. The most serious offences against persons and property tried at assizes or at the Old Bailey were punishable by death. County quarter sessions and all but two borough sessions had no such power. Execution was usually by hanging. Individuals could claim benefit of clergy, a medieval right extended to men and women who could demonstrate basic literacy, until the law was abolished by Peel in 1827.[2] Gaols held the accused before trial and some petty offenders were sentenced to short periods of imprisonment but their function did not extend to long-term incarceration. Transportation, after 1787 to Australia, was seen as a solution for many criminals.

Newgate Prison c1780

There was growing unease about the operation of the legal code that led to demands for reform of the criminal law. Campaigners like Sir Samuel Romilly protested that there was a ‘lottery of justice’.[3] There was uncertainty about the punishment for different offences and that even when the death sentence was passed it was far from certain that it would be carried out and, as a result, there was no lesson for the public. Judges, he feared, had too many discretionary powers and responded to different offences in their own individual ways.[4] Romilly and reformers like him have been portrayed as far-sighted humanitarians beset on all sides by die-hard reaction.

By the late-eighteenth century, some of the more savage physical punishments of the medieval and early-modern period were rarely used. People were still whipped and the public whipping of women did not end until 1817. Also in decline were those punishments like the stocks or the pillory largely because they no longer worked. Some of those pilloried lost an eye or were even killed; some wore armour to protect themselves. On the other hand, someone like the bookseller John Williams who sold newspapers criticising the government in 1765 was cheered in the pillory and was given £200 raised in a collection. There never were 200 or so separate and completely different offences that were liable to a capital sentence and the use of capital punishment as a solution had been questioned long before Romilly began his campaign.[5] In 1783, the procession to Tyburn for execution was abolished and after this, hangings took place outside Newgate Prison. In this context, Romilly‘s achievement is perhaps less pronounced. Romilly and other reformers were able to get things done because an increasing amount of parliamentary opinion, across the political spectrum, was beginning to line up behind the arguments being employed. For example, the bill to abolish the death penalty for pickpockets went through Parliament in six weeks in 1808 without a division.[6]

---

[1] The most vivid revisionist study on prisons is Ignatieff, Michael, A Just Measure of Pain: the penitentiary in the Industrial Revolution 1750-1850, (Macmillan), 1978. Sharpe, J.A., Judicial Punishment in England, (Faber), 1990 covers a broader span of time. Gatrell, V.A.C., The Hanging Tree. Execution and the English People 1770-1868, (Oxford University Press), 1994 is a major study of changing sensibilities and debunks many myths about execution. See also, McConville, Sean. A history of English prison administration, 1750-1877, (Routledge), 1981 and Brown, Alyson, English society and the prison: time, culture and politics in the development of the modern prison, 1850-1920, (Boydell), 2003.

[2] In 1512, Henry VIII had made certain offences ‘felonies without benefit of clergy’ and by the end of the sixteenth century, the list of unclergyable offences included murder, rape, poisoning, petty treason, sacrilege, witchcraft, burglary, theft from churches and pickpocketing. In the eighteenth century, increasing crime rate prompted Parliament to exclude some minor property crimes from the benefit of clergy. Eventually, housebreaking, shoplifting goods worth more than 5 shillings and the theft of sheep and cattle all became felonies without benefit of clergy and earned their perpetrators automatic death sentences.

[3] Memoirs of the Life of Sir Samuel Romilly written by himself, with a selection from his Correspondence, edited by his sons, 3 Vols. (John Murray), 1840 and The Speeches of Sir Samuel Romilly in the House of Commons, 2 Vols. (J. Ridgway and sons), 1820 provide contemporary material. See also, Medd, Patrick, Romilly: a life of Sir Samuel Romilly, lawyer and reformer, (Collins), 1968 and Gregory, C.N., ‘Sir Samuel Romilly and criminal law reform’, Harvard Law Review, Vol. 15, (1902), pp. 446-467.

[4] Romilly, Samuel, Observations on the Criminal Law of England: as it relates to Capital Punishments, and on the mode in which it is administered, (T. Cadell and W. Davies), 1810, pp. 8-23,

[5] Potter, Harry, Hanging in Judgment: Religion and the Death Penalty in England from the Bloody Code to Abolition, (SCM Press), 1993, Bentley, David R., Capital Punishment in Northern England, 1750-1900, (BPR Publishers), 2008 and McLeod, Hugh, ‘God and the Gallows: Christianity and Capital Punishment in the Nineteenth and Twentieth Centuries’, Studies in Church History, Vol. 40, (2004), pp. 330-356.

[6] See Handler, Philip, ‘Forgery and the end of the ‘bloody code’ in early nineteenth-century England’, Historical Journal, Vol. 48, (2005), pp. 683-702.