The “Bloody Code”, a grisly name to denote a dark history, was given to the series of laws which were enacted over several years from the seventeenth century onwards which mandated the death penalty for a range of crimes. Such crimes varied in severity, so much so, that by modern standards they would seem trivial.
With intervention from campaigners growing over the decades, laws eventually were subjected to reform and scrutiny.
In the meantime, thousands of people faced the judgement enacted by these laws, with many being punished by death whilst others were subjected to transportation, most famously to the other side of the world.
Dating back to 1688, the number of crimes punishable by death amounted to fifty, this number two centuries later in 1815 had significantly increased to 225 crimes.
Whilst no definitive list of all punishable crimes exists some of those on the list included: murder, arson, forgery, cutting down trees, stealing animals, pickpocketing, stealing from a shipwreck, destroying a fishpond and the rather specific crime of being an unmarried mother concealing a stillborn child.
One of the main drivers to this increase in criminal offences deemed punishable by death, was a result of measures meted out for ‘rustic crimes’. This included stealing deer in the royal forests which initiated the introduction of the Waltham Black Act of 1723 as an emergency measure.
Many crimes were related to the defence of property such as destruction of gardens or orchards. These standards were believed by many to have an undertone of class division which exacerbated tensions.
In particular, grand larceny which was punishable by death was defined by the theft of goods with a combined value of more than 12 pence. Such an amount at this time equated to around 1/20 of the weekly wages of skilled workers, around £30 in today’s money.
Such was the severity of the law that many jurors ended up deliberately under-valuing the stolen goods so as to avoid inflicting the death sentence on the person in the docks.
The capital punishment enforcement was also dealt with on a case by case basis, with individual crimes being placed in a separate capital statute. Some of the specific examples which arose as a result included impersonating Greenwich pensioners and cutting down hop-vines.
Such disparity in crimes resulted in less people sentenced to hang than before the legislation was introduced, as juries were reticent at the harshness of the sentence and as a result were less likely to find them guilty, knowing that the crime would lead to death.
This sentiment would in time lead to reforms, thanks in large part to the intervention of individuals such as the reformer and lawyer Sir Samuel Romilly.
Coming from a well-connected background he was in a position to make a difference and he also held a prominent position within Parliament. He soon dedicated himself whole-heartedly to reforming criminal law, particularly the legislation known as the “Bloody Code”.
After years of campaigning, Romilly’s efforts produced mixed results. In 1808, he had been successful in repealing the Elizabethan statute which made it a capital offence to steal from a person, ironically which resulted in an increase in prosecutions for pickpocketing because the punishment the perpetrator faced was no longer death.
The following year however three bills that advocated repealing more draconian measures were rejected by the House of Lords.
In March 1812 he had more success as the statute for making it a capital offence for a soldier or mariner to beg without a pass from his commanding officer or magistrate was repealed.
The successes achieved by Sir Samuel Romilly, alongside a handful of other campaigners by the turn of the nineteenth century, were notable as some of the most draconian measures for minor crimes were finally overturned.
As a result of these changes however, the use of transportation as a consequence for criminal activity became a more favoured mode of punishment.
Penal transportation with indentured servitude was frequently the punishment of choice leading to one-third of all criminals convicted between 1788 and 1867 being transported to Australia, the favoured destination.
The Transportation Act of 1717 was introduced as a way of regulating the practice but was suspended with the introduction of the Criminal Law Act of 1776, otherwise known as Hard Labour Act or Hulks Act.
England had already transported an estimated 50,000 to 100,000 convicts and prisoners of war to its overseas colonies in America. During the period from 1610 until the American Revolution of 1776 transportation was still in full swing, however when the American Colonies began to engage in rebellion, Parliament deemed it necessary to change course. As a result, prisons began to be seen as the most viable alternative, leading to a wave of prison construction.
Ten years after the Criminal Law Act was passed, Australia became the focus of parliamentarians who decided that it was a suitable location to transport convicts. With plans to transform it into a penal colony, the First Fleet departed in 1787 in what would be the first of many voyages.
The only way to escape such a fate was if the convicted criminal agreed to join the British Army. Aside from this path, many were forced to face their fate, spending months at sea, enduring a difficult and arduous journey, only to arrive and be forced into indentured servitude.
This process starting with that first ship in 1787 would continue for almost one hundred years until 1868, with around 160,000 people transported in total.
Transportation was thought by many at the time to be a more viable alternative and lenient compared to the death penalty. With Australia being on the other side of the world and in another hemisphere, it was also considered to be an effective way of literally banishing criminals from the country and thus reducing the amount of criminals and crimes that could be committed. Another perceived benefit was that the whole process was cheaper than the prison system.
The practice of transportation became part of the origin story of modern-day Australia, instigating a large-scale colonisation process after Captain Cook’s discovery of the land in 1770.
By no means an easy punishment to serve, it was however seen by many as a lenient alternative to the death penalty with the option of reform possible through demonstration of good behaviour and hard work. With many sentences ranging from seven years to fourteen and even life, the authorities operating the system allowed a convict to apply for a ticket of leave, which allowed some freedoms such as marriage and having a family.
The colonisation of Australia was thus unique in this sense, as it initially served as a penal colony and a destination for banishment, however by 1868 it was frequently seen as a viable place to emigrate.
By 1868 attitudes were changing, punishments such as transportation were seen as cruel and there was more emphasis on rehabilitation. In time, the legislation would alter to reflect these changes and by the turn of the century, Australia had become a favoured destination for people seeking a new life.
Back in England, attitudes towards the death penalty had also significantly altered and by 1861, the number of capital offence crimes had been reduced to five.
The harsh system of widespread capital punishment in the long run had done little to deter criminal activity, in fact, prosecutions for crimes were often avoided as juries became unwilling to convict people for minor capital crimes.
Moreover, in this context many executions were not carried out and those that were did not dissuade people from criminal activities, in fact public executions were at one point in history a form of cheap entertainment.
The impact of certain individuals can also not be underestimated such as the campaigner Sir Samuel Romilly but also the lawmaker and statesman Sir Robert Peel, who himself reflected the changing attitudes towards criminal law, emphasising reform.
In 1823, Peel persuaded politicians to pass the Gaols Act with the goal of improving prison conditions. Such legislation and others that followed was inspired by the work of famous campaigners such as Elizabeth Fry who focused on rehabilitation rather than severe sentences.
In time, this change in attitude extended to the process of transportation which likewise came to an end in the mid-nineteenth century.
The “Bloody Code” was a system of harsh legislation designed to punish most crimes with the harshest possible consequence of death. The acts which supported this grew over the years, resulting in an inordinately high number of capital crimes.
In reality, such draconian measures did not have the desired effect. The streets of Britain were still rife with crime, jurors were keen to avoid imposing sentences and many felt it stoked further class division in an already hierarchical system.
By the end of the nineteenth century the “Bloody Code” had ceased to exist as the attitudes which helped it prevail had died with it. Reform and rehabilitation became the watchwords for parliamentarians and reformers, thus shaping the modern day criminal system we are familiar with today.
Jessica Brain is a freelance writer specialising in history. Based in Kent and a lover of all things historical.
Published: 15th July 2024.
