This is Part II of a two-part series about the Bloody Code. Part I is here. I apologize that the footnotes have reset themselves. In reality, they should begin numbering at 127. If you have any questions about Part I or Part II, please don’t hesitate to ask. It’s been a long time since I wrote this, but I still have most of my source material.
Decline in the Bloody Code: “A disgrace not only to civilization but to our common humanity.”
The Bloody Code was mercifully short lived in British history, lasting roughly 150 years. Humanitarian and religious reformers decried it, and as a result of prison reforming efforts, death and transportation were no longer the only means of dealing with felons. Reformers such as Sir Samuel Romilly worked diligently to strike capital crimes, particular those related to property crimes, from the lengthy list, but not without steep opposition. For example, from 1810 to 1820, the House of Lords voted six times against abolishing shoplifting as a capital crime.
Sentimental outcry: “A public scandal to the law.”
Everyone loved an execution. Yet despite the base appeal of the spectacle of a good hanging, many reformers deplored the waste and barbarity of the Bloody Code; Thomas Hague used the language of human sacrifice in describing the situation: “Our criminal Courts are still temples of sacrifice, wherein Judges are arrayed like the priests of immolation, to perform the ceremony, and Juries are compelled, upon oath, to devote the human victim.”
As discussed earlier, reformers often used the fact that so many children were numbered among the capitally convicted as a reason to change the Code. During the 1780s in London, a whopping 90% of those executed were under 21 years, and many of those were recent immigrants.
Alternatives to Death
Another reason the Bloody Code met its end stems from the alternatives to hanging available to judges unwilling to sentence prisoners to death. A French observer wrote: “If these sanguinary sentences were rigorously carried into effect, the scaffolds of England would stream with blood, and the whole nation would rise up in horror against them.” Nor was this hyperbole. In the late 1820s, death sentences averaged 1,336 each year, far more than could feasibly be executed. One pamphleteer opined in the 1820s that in order to actually execute everyone who had been sentenced to death, hangings would have to take place four times daily (excluding Sundays).
Fortunately for most of those condemned, there were other options. Even if a defendant could not persuade a judge to issue a pardon, or his attorney could not convince a jury to engage in nullification or pious perjury, there was always the hope of transportation, or as later developed, newly reformed prisons. Ultimately, however, it would take Parliamentary effort to edit and trim the Bloody Code down to a manageable few offenses.
The most obvious alternative to hanging was transportation. However, while transportation provided an alternative to death, it was no panacea to Britain’s criminal woes. Transportation outside of England had its origins in the sixteenth century, but it was only after the Transportation Act in 1718 that it became a common and viable form of punishment. Prior to the Transportation Act, the law required that merchants pay for the prisoners’ release, including fees for the jail time, for court clerks, and even for the pardon. A merchant would recoup his losses by selling the prisoner into indentured service, if he was lucky.
The British shipped prisoners first to the American colonies, then to Australia after the American Revolution. The government did not ship the prisoners with the Royal Navy, but instead used private merchants. The British government began paying three pounds per convict, to provide for their transport. There were far more prisoners to be transported than berths available, so many criminals spent months or years on prison hulks waiting to be transported.  Even so, around 50,000 convicted felons were shipped to the colonies between 1718 and 1775. Later transportation efforts to Australia sent more than 150,000 convicts, at least until 1868, when transportation ended.
However, while transportation was a better alternative to death, conditions in the Chesapeake colonies and later Australia were brutal and decried by critics. In the American colonies, transported convicts worked in conditions similar to those of African slaves. As a result, when the prison reforming movement took hold, England eased its reliance on transportation.
2. Prison Reform: A “mill for grinding rogues honest and idle men industrious.”
Horrific prison conditions spurred reform, albeit slowly. John Howard, arguably the father of England’s prison reform, surveyed prisons all over England in researching his The State of the Prisons in 1777. While deriding the state of current prisons, Howard advocated solitary confinement, religious instruction, and hard labor.
Despite English dislike for prisons, reforming efforts spurred the construction of forty new prisons in the twenty years after Howard’s manifesto. These prisons were aimed at rehabilitation of the youthful offenders whom prison reformers believed were salvageable. Juveniles were not prosecuted as vigorously as older criminals by crime victims, who were loath to see children executed, yet reformers knew that young offenders could (and often did) grow into hardened, adult offenders who would undoubtedly face the gallows later on.
Given reformers’ concern for youthful offenders, that experienced criminals were tossed into prison alongside children was the subject of increasing debate, and the earlier 1780s juvenile-aimed reformation efforts found new life in the 1830s. Edward Gibbon Wakefield, when characterizing the “nurseries of crime” around London, considered Newgate prison the “greatest Nursery of Capital crime.” The Keeper of the Fleet, a debtor’s prison, described it as “the biggest bawdy-house in London” when addressing investigating MPs.
Although the Quakers came late to the prison reform efforts, Quaker Elizabeth Fry was instrumental to the movement. Mrs. Fry is credited for what are now basic prison precepts, such as separating women and men, separating classes of criminals from one another, and allowing for visitors. For her efforts she was credited by the Hon. H.G. Bennett, who wrote in 1818 to persuade others of the necessity for prison reform. Bennett added other recommendations, such as reserving the use of irons for felony convicts only, as well as separating child offenders from adults.
Sir Robert Peel incorporated these recommendations the Prison Act in 1823. The Prison Act required dividing up prisoners according to the severity of their crimes and required standardized penal procedures. While modern prisons were a product of the Victorian, not the Hanoverian era – Pentonville, the first truly modern English prison, began operations in 1842 – the Hanoverians sowed the seeds of reform.
Ultimately, despite public outcry and the alternative punishments available, the Bloody Code could only be repealed through legal reform by Parliament: as long as hundreds of capital crimes remained on the books, it was likely the executions would continue to be carried out. Progress came in fits and starts, and after a flurry of reform activity in the 1780s, all advances seemed to come to a standstill, as English horror at the French Revolution all but stopped efforts to reform the Code. Gatrell notes that because of the anti-revolutionary feeling in England, Dr. Paley, who defended the Code, was far more in vogue than reformer Jeremy Bentham. Certainly Sir Samuel Romilly, in his “Observations on the Criminal Law in England” is careful to rebut Dr. Paley point by point.
Reformers were influenced by English and Continental sources. Cesare Beccaria’s Essay on Crimes and Punishments was translated into English in 1777. At home, Jeremy Bentham had a narrower scope of influence than the mid-century Italian Beccaria. Bentham’s limited appeal is surprising, but not entirely unexpected as he published much of his work in French, and it was only in the 1820s that he received public praise from lawyers and the Westminster Review.
Beccaria wrote that punishments should be certain, but humane. “Crimes are more effectually prevented by the certainty than the severity of the punishment.” Punishments also should be proportional to the crimes committed, according to Beccaria, who argued the death penalty was not a deterrent to crime, but instead contributed to crime.
Beccaria influenced English reformer Martin Madan, who analogized the Bloody Code to a scarecrow and England’s criminal class as the crows who know the Code is only a sham. Madan went in an opposite direction from most other reformers, as he believed the Code should be more severe, but consistently so, whereas others argued that it ought to be consistently less severe.
Another Becarria disciple was Romilly. Romilly observed that it was the certainty of punishment, rather than the severity of punishment, that had the greatest deterrent effect. Like Beccaria, he believed the Bloody Code, despite promising severe sentences for trivial offenses, was not a deterrent. Romilly suggested that a death sentence was presented to the public as a direct result of the underlying crime, whereas the real rationale might have been because the prisoner solicited perjured testimony from witnesses or committed another aggravating crime.
Romilly was one of the most vociferous opponents to the death penalty, and he was crucial to the success of bills removing crimes such as pickpocketing and vagrancy by soldiers and sailors from the Bloody Code. In 1808, he persuaded the House of Commons that a greater number of prosecutions for pickpocketing would result from removing pickpocketing from the Bloody Code, as private prosecutors had been loath to send thieves to the gallows for such a minor property crime. When a subsequent Commons Committee met to consider further reforms in 1816, Romilly was able to back up his claims with data showing that private prosecutions had increased in the intervening eight years.
That the justice system lacked credibility was clear even to conservatives. Peel wished to make the law credible again – and had no intention of abolishing the Code, but instead making it more effective.
And in fact, most reformers were not in favor of abolishing the death penalty in its entirety. Even tenderhearted pamphleteer Hague could make a good faith argument that murderers should be put to death. He wrote, “a murderer is an impious offender against God himself, and his crime is the most atrocious against society.”
Along with eliminating the death penalty for most property crimes, Romilly stated that rather than having a capital code fixed in law, judges should be given more latitude in sentencing. He wrote, “judges should have the power vested in them by law, of appointing the punishment of every offense after it had been established with all its circumstances in proof, and of proportioning the particular nature and degree of the punishment to those circumstances.”
Ultimately, real reforms came about almost by political accident. The Whigs, long critical of the Code, gained power in 1830. In 1832, most forgeries, coining, theft of livestock, and stealing from houses were removed from the list of punishments by death. In 1833, housebreaking was removed from the list. By 1837, only about a dozen crimes remained, though in reality only murderers or attempted murderers actually were executed, and after 1861, attempted murderers were removed. More reforms followed in 1841, and the last public execution took place in 1868.
 Gatrell, supra note 2, at 589. He is quoting an MP advocating the end of public executions.
 Hague, supra note 30, at 9. Hague writes in outrage at the death sentence of a twelve-year-old girl for stealing lace from her workplace; she was a milliner’s apprentice.
 Id. at 5.
 Gatrell, supra note 2, at 8.
Id. at 20, quoting M. Cottu, On the administration of the criminal code in England, and the spirit of the English government (Pamphleteer, 16/31 1820), 37-8.
 Id. at 21.
 Newman, supra note 3, at 717.
 Friedman, supra note 62, at 482.
 Newman, supra note 3, at 717. Surprisingly, most transported prisoners in the Americas ended up in the Chesapeake colonies, rather than Georgia.
 Friedman, supra note 62, at 482.
 Id. at 495.
 Newman, supra note 3, at 568.
 Id. at 717.
 Id. at 718.
 Id. at 568. From Jeremy Bentham Panopticon (1791).
 George Fisher, The Birth of the Prison Retold, 104 Yale L.J. 1236, 1236 (1995).
 Id. at 1237.
 Id. at 1238. Professor Fisher argues this early prison reform movement was part of a general “juvenilization” effort on the part of reformers.
 Id. at 1243.
 Wakefield, supra note 39 at 16. Wakefield had personal experience of prison, having served three years for abducting an heiress.
 Low, supra note 43, at 48.
 Newman, supra note 3, at 276. The wife of a banker, and at thirty-seven, and after having borne 10 children (!) Mrs. Fry dedicated herself to prison work.
 The Hon. H.G. Bennet, MP, A Letter to the Common Council and Livery of The City of London on the Abuses Existing in Newgate; showing The Necessity of An Immediate Reform in the Management of that Prison 16-17 (London, James Ridgeway, 1818).
 Id. at 30.
 Low, supra note 43, at 55.
 Newman, supra note 3, at 569.
 Gatrell, supra note 2, at 327.
 Id. at 327 and 202.
 Romilly, supra note 1.
 Newman, supra note 3, at 568; however, other sources indicate that an English translation might have been available in New York as early as 1773.
 Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century 361-2 (Cambridge 1992). More surprising is an anecdote about Bentham’s personal proximity to the death penalty: he and his wife gave testimony against their servant, John Franks, who had stolen silver from them. Franks was executed for his crime.
 Gatrell, supra note 2, at 329.
 Fisher, supra note 149, at 1278, quoting Caesar Bonesana, Marquis Beccaria, An Essay on Crimes and Punishments 94 (Philadelphia, Philip H. Nicklin 1819) (1767).
 Nicholas Levi, Veil of Secrecy: Public Executions, Limitations on Reporting Capital Punishment, and the Content-Based Nature of Private Execution Laws, 55 Fed. Comm. L.J. 131, 135 (2002).
 Fisher, supra note 149, at 1278.
 Romilly, supra note 1, at 21.
 Id. at 25-6. Romilly suggests that the judge, in announcing the sentence, should state clearly why the death sentence is to be imposed.
 Newman, supra note 3, at 612. Had Romilly not slashed his own throat in 1818, following the death of his wife, he might have had even greater influence.
 Low, supra note 43, at 31.
 Id. at 32.
 Gatrell, supra note 2, at 570.
 Hague, supra note 30, at 10-13. Hague ultimately determined the Legislature receives its authority to determine capital punishments using a complicated rationale involving the Bible and critiques of Blackstone.
 Romilly, supra note 1, at 22.
 Gatrell, supra note 2, at 570.
 Id. at 571.
 Id. at 589.