Righting historical wrongs, one Regency at a time.

Crime and Punishment (Part I)

tyburn-treeI’m trying to think of a Regency with a subplot that heavily involved the criminal justice system. I’ve read plenty with Bow Street Runners. I can’t think of many with criminal convictions and executions, though. But why not? Because it’s a downer? Maybe, but it was high drama during the period. Executions were entertainment for people of every class.

And there were plenty of opportunities to watch hangings. During the Regency, many, many crimes could result in a death sentence. Most of them were trifling. The criminal justice system didn’t allow defendants most of the substantive or procedural rights we take for granted today–so if charged, getting a conviction wasn’t too difficult.

In law school, I wrote one of my big, mandatory papers on the Bloody Code, as it was called, and how popular opinion turned on it and how reforms were finally made. Although some parts of the Code were repealed in 1808, the most substantial reforms didn’t occur until after the Regency. During the Regency, reformers were very active and debates about the Code were common. For example, from 1810-1820, the House of Lords voted six times against removing shoplifting from the list of capital crimes!

Because I thought you might find it interesting, and because it would be great to have more law and order subplots in Regencies out there, I’m sharing the paper. Because of its length, I’m dividing it into two parts. I’ve removed as much of the boring touchstones of legal writing as I can without making it nonsensical, and I’ve skipped the last section of the paper, which deals with modern capital punishment and the execution of minors and which is now very out of date. I apologize for any odd formatting you may encounter and the footnotes not linking properly, but you guys, I do not have it in me to hand-code 207 footnotes. (You can blame the pedantry on my youth or my OCD. Either works.)

This is Part I. Part II will follow in a separate post. If you’re interested in learning more about this, I can’t recommend enough The Hanging Tree: Execution and the English People 1770-1868 by V. A. C. Gatrell.


I.  Introduction: “There is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England.”[1]

During the Hanoverian era, England’s severe punishment system for major and minor crimes alike was familiarly known as the “Bloody Code.”[2]  After conviction, a criminal could be sentenced to more minor physical punishments such as public whipping or time in the pillory, but the sentence that gave the Code its nom de guerre was hanging.[3] When the Code was at its strongest, there were over two hundred offenses, ranging from trifling petty theft to high treason, for which a guilty verdict could result in death.[4]

One contemporary observer divided the crimes meriting capital punishment into four categories.[5] The first class were crimes primarily against the state: high treason, slave-dealing, returning from transportation, smuggling, and stealing from the post office.[6] The second class of crimes related to the church: arson of churches, sacrilege, and pulling down of churches in a riot.[7] The third class consisted of crimes more recognizable to a modern person: rape, attempted murder, murder, shooting, stabbing and wounding, along with sodomy, bestiality, carnally knowing female children under ten years of age, and abortion.[8] The final class was made up of larceny-type crimes like robbery, forgery (of wills and powers of attorney), false signals (used to lure ships into danger), and plunder of wrecked ships, in addition to crimes such as arson, stealing from a dwelling house, extortion by threats or during riots, and burglary.[9]

Hanging was so ubiquitous that even domestic animals were hanged as a means of relieving suffering in old age or to eliminate a “mad” dog.[10] Still, the Code was not universally accepted, and reformers took aim at brutal corporal and capital punishments.[11]  However, reforms were slow while the Tories remained in power; it would not be until the Whigs gained control of Parliament that true reforms could take place.[12]  Still, bit by bit progress was made. In 1808, parts of the Code were repealed, largely due to the efforts of Sir Samuel Romilly.[13] Subsequent reforms in the 1830s and 1840s resulted in the repeal of huge numbers of capital crimes, until only murder and attempted murder merited death.[14]

This paper examines the rise and fall of England’s Bloody Code and argues that ultimately it fell prey not to popular sentimentality, but instead changing English views of incarceration and the improvement of prison conditions. Section II details the rise of the Bloody Code during the reign of the Georgian kings, from the ubiquity of executions, the curious practice of private prosecution and how it worked, along with the long-standing English dislike of prisons and police. Together, these factors fed the need for a comprehensive capital code.  This section also examines the Code’s failings in practice, including judicial unpredictability, the historic defense of “benefit of clergy,” and the methods juries saved the lives of criminals through jury nullification and pious perjury. Section III chronicles the fall of the Bloody Code primarily as a result of viable prisons, transportation, and legal reforms.  Section IV looks at two twenty-first century parallels to the days of the Bloody Code: the execution of children, a practice that only just ended this spring in the United States, as well as arbitrary and draconian sentencing, now found not in executions, but in the form of three strikes laws.

II.  The Rise of the Bloody Code: “You are not to be hanged, Sir…for stealing a horse, but you are to be hanged that horses may not be stolen.”[15]

The rise of the Code can only be understood through its context. The first section surveys popular views of executions. The following sections highlight three aspects of the English criminal code that contributed to the power of the Code: the lack of policing, the system of private prosecutions, and the prison system. The final sections chart the rise of the Code through legislation and detail ways in which the Code failed.

Popular Views of Criminal Punishment: “I have been abetting an act of frightful wickedness and violence.”[16]

In Georgian England, executions were high drama for the rich and poor alike, and despite criticism, public executions continued until 1868.[17]  Today’s news tableaux of pro and con protesters outside prisons where executions take place cannot begin to compare to the all-pervasive gallows culture of eighteenth and early nineteenth century England. The crowds were legion, drawing at least three to seven thousand, and sometimes far more.[18] Not only did thousands gather to watch executions at Tyburn, Newgate, and dozens of other locations, but these executions became defining events in people’s lives, often cherished memories to be trotted out in recollection for decades after the fact.[19] The condemned lived on in catchy and popular songs, like the “Ballad of Sam Hall,” based on the 1707 execution of Jack Hall.[20]  (The song has proved so incredibly long lived that it appears on one of Johnny Cash’s last CDs.[21])

Aside from popular ballads, the faces of condemned men and women lived on at Madame Tussaud’s and in the Punch and Judy show.[22] Newgate calendars were popular sellers: they were several hundred pages per volume, and there were six volumes per edition, filled with engraved pictures of prisoners, executions, and trial scenes.[23]

After the development of the iron frame press in 1815, broadsides about executions created a booming cottage industry for many English printers.[24] They contained sensational details about the crime, trial, final speech, and execution of a condemned man or woman, and were produced and sold in the millions.[25]  Even later, as the number of executions slowed to a trickle when only of convicted murderers and attempted murderers were executed, the broadsides continued to fill the public in on all the gory details.[26]

Charles Dickens explained fascination with the gallows as our “secret nature to have a dark and dreadful interest in the subject.”[27] Perhaps surprisingly during the heyday of the cult of sensibility, remarkably few were as horrified by the gallows as modern interpreters of history believe they ought to be. Gatrell attributes this Hanoverian acceptance and curiosity about death on the scaffold as a combination of factors: curiosity, satisfaction at seeing the law in action, relief it is not oneself hanging, and a sense of crowd solidarity.[28]

Schadenfreude aside, not everyone looked on with approval, especially not at the execution of the very young. Poet Samuel Rogers recalled “a whole cartload of young girls in dresses of various colours on the way to be executed at Tyburn. They had all been condemned for having been concerned in (perhaps for having been spectators of) the burning of some houses … it was quite horrible.”[29]  Many critics of the Code found their voices after seeing children executed. Thomas Hague’s outrage is palpable even now, nearly two hundred years after he wrote, “we shudder at the ceremonies of barbarians, and the inhuman rites of savages; while we ‘Christian dogs’ entrap helpless children, and reason them legally out of their lives.”[30]

The Three Ps: Police, Prosecution, Prisons

When seen against the backdrop of the Hanoverian criminal justice system, the large numbers of executed felons appears less shocking, perhaps even conservative. Yet a modern observer, English or American, can only find the system bizarre.[31] There was nothing resembling a modern police force, nor were there public prosecutors.[32] Victims were responsible for bringing charges against their aggressors and, for much of the Hanoverian era, bore the brunt of investigatory costs as well.[33] Once apprehended, there were few options for handling prisoners, as incarceration was short term and extraordinarily unpleasant. [34] From a practical point of view, a heavily utilized death penalty almost appears reasonable.

The main reason the English avoided modern police, prosecutors, and prisons as long as they did was that it smacked of despotism.[35] After the French Revolution and the Napoleonic Wars, it became easy to deride reformation efforts as not only despotic, but French to boot.[36]

The Policing Problem

Until well into the nineteenth century, nowhere in England was there anything resembling a modern police force.[37]  Instead, the country made do with a balkanized, inherited system of parish watches, magistrates, and constabulary.[38] Edward Gibbon Wakefield summed up the common view as simply: “The old watchmen and street-keepers were, I do believe, absolutely useless.”[39]

Attempts had been made at reform, but with little progress. In London, Henry Fielding, followed by his brother John, served as magistrates for the Bow Street Runners in the mid-eighteenth century, but the Runners were more bounty hunters than proper police.[40] Runners were employed parttime and received portions of the reward money if the criminals they apprehended were convicted.[41]

Along with the Runners, London had a mish-mash of constables, watchmen, and charleys.[42] The City was split into twenty-four wards, and each ward had six watchmen, who answered to an alderman.[43]  Outside of the City — and 90% of London’s population lived in the surrounding parishes — there was no such organization, and each parish was responsible for policing itself.[44] As a result, most of the criminal rookeries were located just outside the reach of the City’s watch, but conveniently close to the Bank of England and the Exchange.[45]  Criminals plying their trade in the City had only to duck into the surrounding parishes to avoid capture.[46]

The 1780 Gordon Riots were an impetus for early discussion and proposal of changes to the police system, though results were limited.[47] The Riots were named for Lord George Gordon, a Scottish peer who sought the repeal of the 1778 Catholic Relief Act.[48] They began as anti-Catholic demonstrations, but quickly fanned into London-wide mob rule: churches and chapels were set ablaze, as was Newgate Prison; prisoners were released by rioters and magistrates homes were sacked.[49]  Finally, after around 800 people were killed or injured, the army restored order to the streets.[50] In 1785, Sir Archibald MacDonald proposed a single, metropolitan police force in London, but it was quickly defeated.[51] As the population boomed, crime rates soared, and as a result the Fieldings’ successor in Bow Street, Sir Sampson Wright, established a foot patrol in 1790.[52]

Sir Sampson’s results were limited, and crimes continued to increase.[53] Despite MP fears of the Frenchness of it all, fear was a powerful enough motivator that in 1792 the Middlesex Justices’ Bill passed Parliament.[54] Revolutionary for England, in that it provided for an organized and paid constabulary, it too met with resistance.[55] One of the new magistrates established by the Bill, Patrick Colquhoun, published a sweeping account on crime in London: the Treatise on the Police of the Metropolis catalogued thousands of criminals in London and argued for paid, public prosecutors and preventative police.[56] Yet most contemporaries felt he went too far in recommending a French system (and, though no fault of Calquhoun’s, in having his work admired by the French, who were now at war with England).[57] Critics derided his reforms as attacks on traditional English liberties.[58] One pamphleteer called Calquhoun’s system as an “engine of despotism and inquisition,” and despite the government’s interest in his reforms, only Calquhoun’s milder suggestion of a better-policed Thames yielded results.[59]

Real police reform remained decades away. It was not until 1829 that Sir Robert Peel, the Home Secretary, successfully pushed for the Metropolitan Police Act.[60] The Act gave control of three thousand men to two commissioners, based out of a central station entered from Scotland Yard, Whitehall.[61]

Public Prosecution

In theory, any Englishman could prosecute any crime committed.[62]  However, the victim of a crime was the usual prosecutor, and was responsible for any investigation, filing charges with the magistrate, presenting evidence to the grand jury, and later, providing evidence for the trial itself.[63]  In essence, the victim of the crime would become the detective investigating it as well as the district attorney![64]

Prosecuting a crime was expensive and required significant amounts of legwork and expertise most victims did not possess. As a result, and not surprisingly, many crimes were never prosecuted.[65] England flirted with a reward system, where prosecutors would receive a reward for a successful prosecution, but this lead to abuses, and it was abandoned in the mid-eighteenth century.[66] A new system, where prosecution costs were reimbursed to needy prosecutors after a successful prosecution, helped some, although it was not until 1778 that unsuccessful prosecutors also received reimbursements.[67] Surprisingly, during the reign of the Bloody Code, most private prosecutors were not wealthy, but instead were the middle and lower class.[68] It would be fifty years – in 1826 – when the Criminal Law Act was passed by Parliament; this legislation reduced private prosecution costs and provided for regular expenses to be reimbursed to the private prosecutors.[69] Even more shocking, however, is that England did not have public prosecutors of any sort until 1879, and even then the public prosecutor had fewer powers than a corresponding American district attorney.[70]

Criminal trials were fast, cursory affairs: the average Old Bailey trial lasted a scant eight and a half minutes.[71] However, a trial on a capital charge might stretch on for hours.[72] A prisoner could seek defense counsel, but on capital charges, it was more difficult as a barrister stood to make significantly more money by taking a number of small trials compared to one capital trial.[73] Defense counsel were limited in the actions they could take on behalf of their clients, as well: they could only cross-examine the prosecution’s witnesses, call defense witnesses, and relate any statements the defendants wanted presented to the court.[74] They could not address the jury in felony cases (but could for high treason, misdemeanors, and civil cases) and had no right to see the prosecution’s evidence before the trial.[75]  It was difficult, if not impossible, for the defense offer another theory of the crime, primarily because the defendant in England would not be permitted to take the stand in his own defense until 1898.[76]

Outside of London, serious cases such as those involving murder, arson, and robbery, were tried at the county assizes by royal judges.[77]  These county assizes heard cases twice a year, as opposed to the quarter sessions where lesser offenses, such as petty larceny and fraud, were heard by the justices of the peace.[78]

England’s Prisons

Another reason the Code proved useful was because the English disliked the idea of being in the business of imprisonment, and this distaste only grew after the French Revolution, and the long wars with the French steeled English resolve against anything French.[79] The prisons that did exist were temporary way stations, and never long term solutions.

In the Hanoverian era, England had four types of incarceration.  First, debtors’ prisons existed well into the nineteenth century.[80] A debtor could be confined in a debtors’ prison, along with his family, until creditors were paid or Parliament determined that the debtor was truly insolvent.[81] Debtors were held in the Fleet, Ludgate, King’s Bench, and Marshalsea.[82]

Second, bridewells, or houses of correction, were for short-term incarceration of prostitutes and vagrants.[83] Bridewells employed a crude type of corrective methodology: prisoners were “taught” proper behavior through hard labor; manufacturers contracted with justices of the peace for the prisoners’ labor.[84]

Third, counties and boroughs had their own jails, used primarily as a way of holding prisoners until trial, sentencing, transportation, or execution.[85] Jails could be as simple as a single room or as elaborate as London’s Newgate, which held hundreds of prisoners.[86]

Finally, an unpleasant type of imprisonment resulted from the interruption in transportation after the American Revolution: the prison hulks.[87] Supposedly a temporary means of housing prisoners awaiting transportation, the old, rotting hulks of decommissioned naval vessels were moored at docks and packed with prisoners below decks.[88] Transportation resumed (albeit to Australia) in 1787, but England continued to rely on the prison hulks until the 1850s.[89] Conditions in the hulks were deplorable. At night, the prisoners would simply be locked below decks and left to gamble in the darkness and fight among themselves.[90]  By 1828, over four thousand men were housed in ten hulks.[91]

Imprisonment was viewed as distinctively French, and given the long wars with the old enemy, nothing to emulate. Through the eighteenth century and Napoleonic wars, the French utilized imprisonment (and prisoner labor) extensively, while having fewer capital crimes, whereas England was exactly the opposite.[92] Aside from prejudice, a part of England’s reluctance to rely on prisons might have been cost, as prisons were expensive; at least one historian has estimated, based on French experiences, that the cost of each prisoner per year was four pounds sterling.[93]

Increase in Capital Offenses

Perhaps surprisingly, the Bloody Code was not inherited from England’s wilder and bloodier past. Instead, as the modern era loomed, the number of capital crimes increased during the period of 1688 to 1820, from fifty capital crimes to more than two hundred.[94] Most capital crimes related to property.[95] The Black Act, passed in 1723, was a major source of these new capital crimes, as in one fell swoop the act added fifty new crimes related to poaching.[96] The Black Act also targeted criminals who blackened their faces while committing crimes, and judicial interpretation expanded the Act as requiring death simply for being caught with a blackened face.[97]

Rioting was a crime under the Riot Act of 1715.[98] Under its provisions, rioters in a group of twelve or more were guilty of a capital crime if they failed to disperse within an hour of an official reading the Riot Act.[99]  It did not take long for the Riot Act to claim its first victims: the first rioters under the Act were executed in 1716, a mere year after its passage.[100]

Problems with the Bloody Code: “A fountain of knowledge shut up.”[101]

The Bloody Code, for all its frightful promise, never did work very well, even at the outset. Despite the severity of the punishments available, many of those who committed capital crimes were not executed.  Judges struggled with imposing capital sentences, and often commuted the sentence to something less than death. A jury might find the prisoner guilty of a less severe crime, despite all the evidence pointing to the more serious offense. A prisoner might be able to plead “clergy” and escape death. Transportation became a viable option, first to the American colonies, then to Australia. Finally, a movement toward corrective imprisonment resulted from a shift in popular attitudes toward law enforcement and treatment of prisoners.

Judicial Unpredictability: Sentencing and Pardons

The Bloody Code made difficult work for judges. In discharging their duties in a criminal trial, judges were often caught between the harsh reality of the law and a desire to do justice.[102]  Consequently, different judges pronounced different sentences for the same crimes, leading to unsurprisingly uneven results.  Romilly writes of a poultry theft in the early nineteenth century in Norfolk, where only one of the thieves was caught, and subsequently tried at the next assizes. Lord Loughborough thought the crime trivial and sentenced the thief to a few months in prison. This lenient sentence encouraged the other thief to come forward and confess, but unfortunately for him at the next assizes, his judge was Mr. Gould. Gould’s experience was that poultry theft usually precipitated more severe crimes, and as a result, the second thief was sentenced to transportation.[103]

Until at least the 1820s, judicial discretion led to absurdities: in sentencing three men for burglary, one judge allowed himself to be swayed by character evidence to spare the lives of two of the perpetrators. As the third, he wrote, “one sacrifice [is] necessary to the due administration of criminal justice…upon this part of the subject my mind is at ease.” [104]

Yet simply because a criminal was sentenced to death under the Bloody Code did not mean he would actually hang. Pardons were liberally used and added another level of judicial unpredictability; one historian estimates only forty percent of those sentenced to death between 1660 and 1800 were actually killed.[105] After the Transportation Act of 1718, many pardons were conditional on transportation of the convict, but some were unconditional.[106]  Pardons were used to correct verdicts the judge disagreed with as well as conditioning a sentence after hearing character evidence.[107] Additionally, pardons could be based solely on the defendant’s connections with court officials.[108]

Within the jurisdiction of the Old Bailey (London and Middlesex), pardons were doled out by the King and his council, who would have sessions of their own after each Old Bailey session, to determine if any of the convicts would be pardoned.[109] In the rest of the country, the king delegated his authority to judges.[110] The sovereign became even less involved after transportation became a cheap and painless way to commute a death sentence, and it became the secretary of state’s job to approve or deny the petitions.[111] After 1823, the discretion was solely the judge’s, as he had the power to record the sentence on the spot, and decide who would live or die.[112]

Pleading “Benefit of Clergy”

Even if a criminal was charged with a capital crime and the victim was willing to pay for the investigation and provide evidence, the defendant might never even go before a jury. A relic of history during the Hanoverian period was a defendant’s ability to plead his clergy.

For a certain class of offenses, more serious than minor crimes like petty larceny, yet not so severe as murder, a defendant could plead clergy and get a what amounted to a free pass, but only once.[113] A defendant who pled his clergy would be branded on the thumb and released, even if the crime would ordinarily carry with it a death sentence.[114] The doctrine was left over from the time of ecclesiastical courts, when clergy accused of capital crimes could transfer their case to the ecclesiastical courts where there was no death sentence available.[115] The doctrine subsequently evolved to apply to anyone who was literate, and, after 1706, clergy could be pled by any defendant.[116]

However, not all serious offenses were subject to the clergy doctrine. Initially, clergyable offenses were those which would be punishable by death, but in time that, too, evolved; during the Hanoverian period, manslaughter was still clergyable.[117]  Juries who were dismayed at the leniency of this sentence might find a defendant guilty of a crime which merited something less than death, such as whipping, in order to ensure the defendant did not completely escape justice.[118]

Once branded on the thumb, at least in theory a defendant could not plead clergy again.[119] This could mean bizarre results: two men could commit manslaughter, and one could be branded and released, and the other, if he had already pleaded clergy, would be executed.

Judges retained discretion over the defendant’s ability to plead clergy, and this lead to an uneven application of the clergy doctrine.[120] A judge could strictly enforce the clergy requirement of literacy or point to a previously branded thumb and refuse to allow the defendant to plead his clergy.[121]

Jury Nullification and Pious Perjury

 Sensitive juries could either find a clearly guilty defendant innocent, or they could engage in “pious perjury,” leading to absurd results.  Historically, as now, juries would acquit or find a defendant guilty of a lesser crime because they did not want to see the defendant sentenced to death. Hague writes of a man who put his watch underneath his pillow before he went to sleep, only to wake and find it missing. The thief was seen and later apprehended. At trial, the jury refused to find him guilty of stealing from a dwelling-house, which would have resulted in a death sentence; instead, they simply found him guilty of stealing (the victim, they determined, must have walked the watch to the window and delivered it to the defendant), in order to spare the life of the thief.[122]

Pious perjury was another method juries could use to prevent manifest injustice. It occurred when a jury construed the facts in such a way that a defendant could plead benefit of clergy for the crime. For example, stealing goods from a dwelling house valued more than forty shillings meant the death penalty – and no benefit of clergy.[123] In order to spare the defendant’s life, and enable him to plead his clergy, a jury could downgrade the value of the goods stolen to thirty-nine shillings.[124] Sir Samuel Romilly relates the case of Elizabeth Hobbs in 1732: she was arrested and confessed to stealing “in a dwelling house one broad piece, two guineas, two half-guineas, and forty-four shillings.”[125] However, while the jury found her guilty of the crime, they also specifically found that she had not stolen more than 39 shillings in order to spare her life.[126]

 


[1] Sir Samuel Romilly, Observations on the Criminal Law of England, as it relates to Capital Punishments, and on the mode in which it is administered (London, T. Cadell and W. Davies, 1811).

[2] V.A.C. Gatrell, The Hanging Tree, Execution on the English People, 1770-1868 (1994). Contemporaries often referred to the Code as the “sanguinary laws,” as well.

[3] The pillory was no picnic, either: Gatrell writes of a woman who lost both eyes after being pelted with everything from cats (!) to rotten cabbages. Id. at 69-70.

[4] Gerald Newman, Britain in the Hanoverian Age, 1714-1837: An Encyclopedia (Gerald Newman, ed., Garland Publishing, 1997). In the House of Commons, MP Thomas Fowell Buxton poked fun at the growth of the Code by dryly commenting that “we are indebted to the industrious spirit of legislation which has prevailed in later times.” Thomas Fowell Buxton, Severity of Punishment: Speech of Thomas Fowell Buxton, Esq. in the House of Commons 2 (1821).

[5] Humphry W. Woolrych, The History and Results of the Present Capital Punishments in England; to which are added full Tables of Convictions, Executions, &tc. 52-53.

[6] Id. at 52.

[7] Id.

[8] Id.

[9] Id at 53.

[10] Gatrell, supra note 2, at 283.

[11] Newman, supra note 3, at 576.

[12] Gatrell supra note 2, at 570.

[13] Newman, supra note 3, at 612.

[14] Gatrell, supra note 2, at 570.

[15] George Fisher, The Birth of the Prison Retold, 104 Yale L.J. 1235, 1272 (1995), quoting Martin Madan, Thoughts on Executive Justice 8-19, 137-40 (London, J. Dodsley, 2d ed. 1785). The quote beginning the section is that of a judge speaking to a convict.

[16] Gatrell, supra note 2, at 296, quoting William Makepeace Thackeray’s description of an execution in Fraser’s Magazine in August 1840.

[17] Id. at 589. The last public execution was that of Michael Barrett, a Fenian who blew up a wall of a prison, ostensibly to free other Fenians. Instead, he killed 15 people.

[18] Id. at 7.

[19] Id. at 113.

[20] Id. at 140.

[21] And the author likes to sing along to it, too.

[22] Gatrell, supra note 2, at 118-122.

[23] Id. at 114.

[24] Id. at 158.

[25] Id. at 159.

[26] Id.

[27] Id. at 239, quoting P. Collins, Dickens and Crime, 224 (1964).

[28] Id. at 242.

[29] Old Bailey Online, http://www.oldbaileyonline.org/schools/sources.html, (last visited May 13, 2005). This is fascinating website for legal historians. The brightly dressed girls, made famous by Roger’s observation, were executed for their “participation” in the Gordon Riots, discussed below.

[30] Thomas Hague, An Exposition of the Uncertainty, Inequality and Cruelty of the Criminal Code of England, with abstracts of all Capital Offenses, Taken from the Statutes and also a Scale of the Punishments to be substituted in all cases for which Death is now inflicted (London, J. Boyd, 1812).

[31] Id. at 30-31. For example, Hague urges that “prisons should not be near the Town Halls, nor Trials heard after Dinner.” To a modern reader, this is almost a complete non-sequitur, but to Hanoverians, capital trials and executions were simply part of the assizes, along with feasting, dancing, and revelry.

[32] Newman, supra note 3, at 399.

[33] Id.

[34] Id. at 568.

[35] Gatrell, supra note 2, at 8.

[36] Newman, supra note 3, at 383.

[37] Id. at 400.

[38] Id. at 399

[39] Edward Gibbon Wakefield, Esq., Facts Relating to the Punishment of Death in the Metropolis (London, James Ridgeway, 1831). Wakefield was in a unique position to write about Newgate, having been incarcerated there after absconding with an heiress.

[40] Newman, supra note 3, at 399.

[41] Newman, supra note 3 at 69. The Bow Street Runners acquired their familiar epitaph in the late eighteenth century.

[42] “Charley” was the popular name of night watchmen hired under a 1663 Act, during Charles II’s reign.

[43] Donald A. Low, The Regency Underworld, 6 (rev. ed. 1999).

[44] Id. at 7.

[45] Id. at 8.

[46] Id.

[47] Newman, supra note 2 at 400.

[48] Id. at 296.

[49] Id.

[50] Id.

[51] Low, supra note 43 at 6. Sir Archibald proposed the “London and Westminster Police Bill” on behalf of Pitt.

[52] Id. at 10.

[53] Id.

[54] Id. at 10-11.

[55] Id.

[56] Id. at 18.

[57] Id. at 19.

[58] Id.

[59] Id. at 22.

[60] Newman, supra note 3 at 400. It is from Peel’s name that the blue-clad “bobbies” get their name, although they were more frequently referred to as “blue devils” in the early days of the police force.

[61] Id. The rest, as they say, is history.

[62] David D. Friedman, Making Sense of English Law Enforcement in the Eighteenth Century, 2 U.Chi. L. Sch. Roundable 476, 476 (1995).

[63] Id.

[64] Newman, supra note 3, at 399.

[65] Friedman, supra note 62, at 476-7. A system of prosecution associations developed. A member would pay fees into a common fund and if he (or his organization) were the victim of the crime, the pool would be available to pay for the prosecution of that crime.

[66] Id. at 477.

[67] Id.

[68] Newman, supra note 3, at 382. It’s possible that the upper classes were both publicity shy and better able to absorb economic losses than the lower and middle classes.

[69] Low, supra note 43, at 55.

[70] Friedman, supra note 62, at 476.

[71] Sarah Wise, The Italian Boy: A Tale of Murder and Body Snatching in 1830s London  (Metropolitan Books, 2004).

[72] Id. at 193.

[73] Id. at 194.

[74] Id. at 195.

[75] Id.

[76] Id. The rationale was that a defendant shouldn’t be forced to incriminate himself. However, without a statement to the jury by the defense or the defendant’s own testimony, trials were invariably skewed toward the prosecution.

[77] Newman, supra note 3, at 382.

[78] Id.

[79] Sound familiar? The menu at the Orenco Station Grill still lists “freedom fries” as a side dish.

[80] Newman, supra note 3, at 568

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Low, supra note 43 at 43.

[91] Id. at 44.

[92] Friedman, supra note 62 at 498.

[93]Id. at 495.

[94] Newman, supra note 3, at 58. The Black Act received its name from the types of crimes it was intended to fight: if a man committed one of the poaching crimes while armed or disguised with a black face, he could face the death penalty. As interpreted by judges, however, simply carrying arms or blackening a face could be a capital crime!

[95] Id. at 576.

[96] Id. at 58

[97] Id.

[98] Id. at 602.

[99] Id. And yes, that’s where we get the expression “read him the riot act.”

[100] Id.

[101] Hague, supra note 30, at 3. Hague was decrying the cryptic nature of England’s penal code.

[102] Romilly, supra note 1, at 17.

[103] Id. at 18-19.  Romilly suggested a system by which judges could proportion the punishment according to the crime and circumstances, rather than the system where the punishments were fixed by law, and it was left to the judges to relax the punishment as they saw fit. 22-23.

[104] Gatrell, supra note 2, at 511.

[105] Friedman, supra note 62, at 496.

[106] Id.

[107] Id.

[108] Id.

[109] Gatrell, supra note 2, at 201.

[110] Id.

[111] Id.

[112] Id.

[113] Friedman, supra note 62, at 479. At least in theory, it was a one-time pass. Friedman suggests this rule was not enforced very often.

[114] Id. at 478-9. The brand was to prevent him from claiming benefit of clergy a second time.

[115] Id. at 478.

[116] Id. at 479.

[117] Id. Manslaughter during this era included types of killings which would be clearly be murder in the twenty-first century.

[118] Id. at 480.

[119] Id. at 479.

[120] Id. at 481-2.

[121] Id.

[122] Hague, supra note 30, at 26.

[123] Friedman, supra note 62, at 480.

[124] Id. at 480-481.

[125] Romilly, supra note 1, at 84.

[126] Id.

2 Responses to “Crime and Punishment (Part I)”

  1. Sophia Rose

    This was very interesting and so helpful. I was curious after I came across a reference to the Bloody Code in a fiction book I was reading. Thanks!

    Reply

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