Bloody Code Essay Contest

By the time the hangman finished him off, Jonathan Wild had few friends. In his own way he had been a public servant—a combination bounty hunter and prosecutor who tracked down thieves and recovered stolen property, a useful figure in 18th-century London, which had no formal police force of its own. Such men were called "thief-takers," and Wild was good at his work. But along the way, he became more problem than solution.

He called himself the "Thief-Taker General of England and Ireland," but he became London's leading crime boss, specializing in robbery and extortion. He frequently encouraged or even set up thefts and burglaries, fenced the booty for a relative pittance, then returned it to its owner for the reward. If his cronies tried to double-cross him, he had them arrested, to be tried and hanged—then collected the bounty. It was said that he inspired the term "double-cross," for the two X's he put in his ledger beside the names of those who cheated him.

Daniel Defoe, a journalist as well as the author of Robinson Crusoe, wrote a quickie biography of Wild a month after he was hanged, in 1725. Henry Fielding, the author of Tom Jones and Joseph Andrews, satirized him in The History of the Life of the Late Mr. Jonathan Wild the Great. John Gay took him as his inspiration for the villainous Peachum in The Beggar's Opera.

But by the time that work had morphed into the Bertolt Brecht-Kurt Weill hit The Threepenny Opera two centuries later, Wild had all but faded from memory. And when Bobby Darin made a hit out of "Mack the Knife" 30 years after the play opened, Wild was largely a forgotten man.

But thanks to a pair of expatriate Americans fascinated by the way England's other half lived during the Age of Enlightenment, anyone with a computer can now resurrect Jonathan Wild and his dark world. The original record of his trial is in the Proceedings of the Old Bailey, the digest that described and often transcribed the more than 100,000 trials that took place in the criminal court of the City of London and the County of Middlesex between 1674 and 1834. Working with grants totaling some $1.26 million, historians Robert Shoemaker of the University of Sheffield and Tim Hitchcock of the University of Hertfordshire have digitized the 52 million words of the Proceedings—and put them in a searchable database for anyone to read on the Internet.

Built in 1539 next to Newgate Prison, the justice hall was nicknamed after its address on Old Bailey Street, where London's "bailey," or wall, once marked the city's Roman boundaries. The court tried felony cases—which included any case that carried the death penalty—and in a city where criminals' biographies and elaborate ballads routinely chronicled the exploits of famous malefactors, the Proceedings were a tabloid-style sensation.

The Proceedings' first issues were thin, cheap and focused on sex and violence, but as time passed, they became more comprehensive and formal, eventually acquiring the stature of an official record; Shoemaker and Hitchcock call them "the largest body of texts dealing with non-elite people ever published." Non-elite indeed! The court records document a tough, teeming London just beginning to flex its muscles as the commercial center of the Western world. The Proceedings made a profit virtually from the first pamphlet issued and thrived for decades afterward. It's easy to see why.

Take the case of 19-year-old Elizabeth Canning, who vanished in 1753, only to stumble home a month later dressed in rags, half-starved and bleeding from the head. She said she'd been robbed and kidnapped by gypsies and held in a hayloft at a rural brothel for 27 days after refusing to become a prostitute. "There was a black pitcher not quite full of water, and about 24 pieces of bread" in the loft, she testified in a case that riveted the public for months. She claimed to have subsisted on these meager rations until she escaped by tugging a plank from a boarded-up window and dropping about ten feet to the ground, cutting her ear in the process.

Mary Squires, the accused ringleader in the crime, maintained that she had never laid eyes on Canning before the trial, but was convicted of robbery—a more serious charge than kidnapping at the time—and sentenced to death anyway.

It then became clear that Canning's story had serious holes. Besides the implausibility of her prolonged survival on so little food, evidence revealed that neither Squires nor her accused accomplices were anywhere near the farmhouse at the time of Canning's purported kidnapping. Investigators visited the loft and said it bore little resemblance to the room Canning had described, and tenants there testified that they had been in residence during the time Canning said she had been locked up. The loft indeed had a small window, but it also had a second, much larger, unboarded one that offered easy access to the yard four—not ten—feet below.

In a second trial, Canning was convicted of perjury and "transported" to the American Colonies. There, she married the great-nephew of a former governor of Connecticut, bore five children and died in 1773, before she turned 40. (No one ever discovered what had really happened to her during her disappearance.) Squires was pardoned and released.

The stories in the Proceedings evoke the mean streets of Moll Flanders, the waterfront of Jim Hawkins, Black Dog and Long John Silver and the dank alleyways where Fagin and the Artful Dodger ran gangs of "blackguard" orphan cutpurses.

In 1741, for example, highwayman John Car was sentenced to death after mugging a man in a park for four shillings and shooting him in the eye. Passersby ran Car down, and when one of his pursuers asked why he had done it, the thief offered an explanation worthy of Dickens: "Money, if you had been here, I would have served you the same."

In 1761, Thomas Daniels was convicted of murder for throwing his naked wife, Sarah, out of a third-story window one August night after returning from a pub. But he won a pardon after documenting his spouse's vicious temper and claiming that, on the night in question, she whacked him over the head with an unidentified object, then ran to the window and "flew out."

The Proceedings have long served as primary source material about daily life in 18th-century London, but their riches were laid bare only to those dogged enough to leaf through hard copies in the bowels of research libraries or, since 1980, to squint for hours at microfilm. "I read them page by page," says University of Toronto emeritus historian John Beattie. He began in the 1980s, researching Crime and the Courts in England 1660-1800, and finished in the '90s, while writing Policing and Punishment in London 1660-1750.

But by transforming the Proceedings into Oldbaileyonline.org, Shoemaker and Hitchcock have brought them to the laptop of Everyman and demonstrated how computer science can make the past come alive.

It is now possible to place software "tags" in large bodies of digitized data, allowing researchers to find something simply by asking the computer to retrieve it. Such high-speed searches have been used not only to sort archives but also to search telephone records, catalog fingerprints or accomplish virtually any other task requiring navigation of immense masses of data. But it wasn't that way when Shoemaker and Hitchcock began their careers in the late 1980s.

"When I interviewed for my first lectureship, they asked me if I could teach 'computing in history,'" says Hitchcock. "I said 'yes' because I wanted the job, even though it wasn't true. On the computers of that time they had developed programs that allowed you to flit from page to page. You could see the potential, but not the mechanism."

Hitchcock, who is from San Francisco, and Shoemaker, who grew up in Oregon, met in 1982 as doctoral candidates in the Greater London Record Office in the basement of County Hall. Both were interested in what Hitchcock calls "history from below"—he was writing a dissertation on English workhouses in the 18th century, and Shoemaker was studying the prosecution of petty crime in the Greater London area during the same period. The two helped edit a book of essays published in 1992, then developed a tutorial on 18th-century English towns on CD-ROM in the mid-1990s. Within a few years, the Internet had provided the "mechanism" Hitchcock needed. "The Old Bailey proceedings seemed a natural," he says.

The pair conceived the idea of digitizing them early in 1999, then spent a year doing background research and writing grant proposals. They got $510,000 from the Arts and Humanities Research Council, the British equivalent of the National Endowment for the Humanities, and $680,000 from the New Opportunities Fund, established for "digitization of learning materials." The universities of Sheffield and Hertfordshire contributed staff, equipment and space.

"It was an enormous amount of money, and we were lucky," Shoemaker says. They enlisted Sheffield's Humanities Research Institute to customize software for searching the Proceedings, but first they needed a digitized copy of the text.

There was no easy way to get one. Technology in 2000 wasn't sufficiently sophisticated to scan words off microfilm; even if it had been, the vagaries of 18th-century printed text, rife with broken fonts and ink "bleed-throughs" from the other side of the page, would have made the technique impossible to use.

So the researchers hired someone to take digital photographs of all 60,000 microfilm pages, then sent the images on CD-ROMs to India. There, in a process known as double re-keying, two teams of typists typed the entire manuscript independently, then fed the copies into a computer that highlighted discrepancies, which had to be corrected manually. That took two years and cost nearly half a million dollars. Then Shoemaker and Hitchcock assembled a team of researchers to embed the entire manuscript with over 80 different computer "tags," permitting searches by such categories as first name, surname, age, occupation, crime, crime location, verdict and punishment.

The Proceedings went on-line in stages between 2003 and 2005. The Sheffield techs refine and update the software continually, recently adding links to maps to help people locate crime scenes more effectively. Their next task is to link stolen objects mentioned in the Proceedings to images of them in the Museum of London.

Meanwhile, the team has obtained enough new grant money to digitize the proceedings of the Old Bailey's successor, the Central Criminal Court, whose 100,000 trial records begin in 1834 and go to 1913. These should come on-line in 2008. The two also plan to digitize an additional 30 million words of 18th-century records—among them, the records of the carpenters' guild, Bridewell Prison and the insane asylum known as Bedlam—to be integrated into the original project. "It will allow us to trace people through the system," says Hitchcock, "to create a kind of collective biography of working people in 18th-century London."

With Oldbaileyonline.org, the haystack now readily surrenders its needles. Genealogists routinely search it to trace family histories. One scholar searched it for information on the court's treatment of "idiots"—people with cognitive disabilities. A few strokes on the keyboard can yield statistics for burglary (4,754 cases in the database), murder (1,573), arson (90), forgery (1,067) and other crimes, or produce a map where crimes were committed. Oxford English Dictionary etymologists found that the expression "No way"—thought to have emanated from the University of South Dakota in the 1960s—seems to have arisen during an Old Bailey rape case in 1787.

Oldbaileyonline.org "broadens the perspective," says the University of Oregon's Randall McGowen, who is writing a history of 18th-century forgery. "You can find out that forgers were overwhelmingly male." (Most were clerks with a weakness for gambling or women and the ability to mimic the boss's handwriting in a "note of hand," the IOU's that the wealthy passed around to obtain funds.)

Traditionalists note that technology of any kind—from microfilm to the Internet—adds "distance" to scholarship, not necessarily a good thing. Though the University of Toronto's Beattie finds the Internet "indispensable" for his current research, he says, "it's a pleasure to pick up a letter actually written by Henry Fielding, and I've taken the string off bundles of documents that still had the 18th-century dirt on them."

The London described by the Proceedings was the hub of a nation that catapulted into the front rank of world powers in the 18th century. The city's population, almost 600,000 in 1700, grew to more than a million by 1800, and the economy exploded.

With no formal police force, Londoners at the dawn of the century had to protect themselves. Neighborhoods appointed householders as "constables" who had the authority to arrest evildoers or summon assistance. Citizens were required by law to heed the "hue and cry" of "Help!" or "Stop, thief!" and run the criminal to ground, as they did in the case of John Car.

With such rudimentary policing, the government focused on deterrence, and under the so-called "Bloody Code," a succession of laws enacted through the mid-18th century, more than 200 offenses carried the death penalty. These included not only violent crimes, but also everything from forgery to shoplifting and pickpocketing.

"Execution was used to scare people by example," Shoemaker says, but since neither the authorities nor the public wanted to hang people for relatively insignificant crimes, only about a third of death sentences were actually carried out during the 18th century, and public enthusiasm for hangings waned as the century progressed.

"Nobody wanted a blood bath," Shoemaker says. Instead, many capital offenders were branded and some were pardoned, while others were "transported" to the North American Colonies, and, later, to Australia. Imprisonment became a more frequent alternative only in the 1770s, when the American Revolution disrupted transportation.

Even with the Bloody Code, there was no formal system of investigation or prosecution, so the government began offering large bounties for conviction of those guilty of serious offenses. London attracted young working people, who were busy in boom times but idle and often dangerous during busts. Wars were fought serially, and each treaty brought a wave of demobilized soldiers whose most marketable talent was skill with weapons.

Crime became more violent, and new methods of law enforcement were needed. One of the innovators was Henry Fielding, who, with his half-brother John, served as a mid-century magistrate at Bow Street, near Covent Garden. The Fieldings induced the government in 1753 to fund the Bow Street Runners, a corps of ex-constables, to track down miscreants and bring them to justice. "They were real detectives going after criminal gangs," says Beattie, who is writing a history of the runners.

And they supplanted the thief-takers, who, thanks to Jonathan Wild and others, had become hopelessly corrupt holdovers from simpler times.

The crime that undid Wild, which began January 22, 1725, was modest enough. Irish immigrant Henry Kelly testified that he and his friend Margaret Murphy had been drinking gin at Wild's house when Wild suggested the two rob a shop run by a blind lacemaker. "I'll go along with ye, and shew ye the door," he told them.

Wild waited outside while Kelly and Murphy went in. Shopkeeper Katharine Stetham later testified that the pair were "so very difficult" that none of her samples "would please them." She went upstairs and found others more to their liking. But "we could not agree about the price," Stetham testified, so Kelly and Murphy left. A half-hour later, Stetham "miss'd a tin box of lace."

After leaving the shop, Kelly and Murphy met back up with Wild. Kelly later testified that Wild offered to pay them on the spot "three guineas and four broad pieces" (a bit over seven pounds—a year's wages for a housemaid) for the box of lace, or they could hold out for the possibility of getting more if Stetham offered a reward. Kelly said they took the cash.

Stetham, not surprisingly, turned to Wild for help. She advertised a reward of 15 guineas and, according to her testimony, told Wild privately that she would give 20 or 25.

Wild, presenting himself as an honest officer of the law, accepted only ten guineas from Stetham—ostensibly to pay off an intermediary—and, in due course, produced the missing lace. "Not a farthing for me," he told her, according to her testimony. "I don't do these things for worldly interest, but only for the good of poor people."

But Kelly and Murphy told a different story, one the jurors found persuasive, at least in part. They acquitted Wild of theft, but convicted him of an offense that would come to be known as "Jonathan Wild's Act"—perverting justice by accepting a reward without attempting to prosecute the thief.

Wild was hanged at Tyburn on May 24, 1725. The route from Newgate to the gallows was lined with cheering crowds "who called furiously upon the hangman to dispatch him," Daniel Defoe wrote. The Proceedings summed up the case with typical economy: "The jury acquitted the prisoner of the first indictment [theft] and found him guilty of the other. Death."

Guy Gugliotta, a former reporter for The Washington Post, makes his Smithsonian debut with this article.

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During the long eighteenth century the capital code, and more specifically the so-called ‘Bloody Code’, which subjected a vast and increasing range of property crimes to the death penalty, was the centre of much popular attention and of extensive debate.1 Hangings attracted huge, ambivalent and often unruly crowds.2 Newspapers reported hangings and capital trials in detail, and a growing volume of contemporary pamphlets and parliamentary debates centred on the need to reform the capital statutes.3 The impact of the Bloody Code has also attracted much attention from historians, some of whom have argued that it played a vital role both within the criminal law and in eighteenth-century social relations more generally. V. A. C. Gatrell, for example, has suggested that ‘the sanction of the gallows and the rhetoric of the death sentence were central to all relations of authority in Georgian England’.4 However, the geography of the Bloody Code, and the possibility that there were major regional differences, both in the use of hanging, and in attitudes to it, have been largely ignored by historians. By systematically exploring the spatial dimensions of capital punishment in eighteenth-century Britain, this article will highlight an important aspect of criminal justice history — the widespread reluctance of many areas on the periphery to implement the Bloody Code — which both contemporary advocates of reform and later historians have almost completely ignored.

Historians working on criminal justice in particular regions have occasionally made reference to the possibility that the geography of execution was uneven. Gwenda Morgan and Peter Rushton, for example, noted briefly that the north-east had ‘long periods without a hanging’, while the limited writing available on Scotland has just started to explore whether Scottish justice was less ‘exacting’ than the English Bloody Code.5 John Minkes’s examination of the Brecon Circuit in the 1750s and David J. V. Jones’s brief article ‘Life and Death in Eighteenth-Century Wales’ have tentatively suggested that Welsh capital convicts received ‘more favourable punishment’, but this work has been largely ignored by those investigating capital punishment in eighteenth-century England.6 While J. S. Cockburn and others have shown an awareness that ‘executions were disproportionately concentrated in London’, very few historians have gone beyond a simple and largely unexplored dichotomy between the metropolis and the provinces.7 Although Gatrell mentioned that there were parts of the country where hangings were rare, he did not analyse hanging rates in different areas and, following Leon Radzinowicz’s earlier analysis of the execution data found in the Report on the Criminal Laws of 1819, the only eighteenth-century statistics Gatrell quoted related to the south-east of England.8 Detailed studies of Surrey, Essex and Staffordshire have since been published, and Douglas Hay has recently produced some nationwide graphs of pardoning rates after 1760, but we still have no county- or regional-level analyses of execution rates per head of population, which are the key to making effective geographical comparisons about the impact of the Bloody Code.9 Using a hitherto largely neglected set of sources, this article will show that execution rates varied systematically across Britain, and that the Bloody Code was widely used at the centre of the British state but often ignored on the periphery: in the far west, the north and north-west of England, as well as in almost all of Scotland and Wales.

The article will conclude by briefly exploring a number of broader issues that this research raises: about the key role historians have given to the Bloody Code in maintaining the hegemony of the eighteenth-century elite, about the process by which the capital code came to be reformed, and about the nature of social policy implementation in the eighteenth-century British state. As Joanna Innes has pointed out, English historians have rarely set studies of crime or poverty within a wider British frame.10 By exploring the uneven implementation of the capital code in England, Wales and Scotland, this article aims to remedy this for at least one important aspect of the criminal justice system. More importantly it will explore the extent to which James C. Scott’s broader theories about the relative autonomy experienced by regions on the periphery are applicable to eighteenth-century Britain.11 Although Scott’s important book The Art of Not Being Governed is based on South-East Asia, some of his key concepts have much relevance here. His ideas about the difficulties the state experienced in governing the inhabitants of relatively distant and inaccessible regions (and particularly areas characterized by their upland or mountainous terrain, pastoral agriculture, low population density and inadequate transport links) are clearly applicable to eighteenth-century Britain, where most of Scotland and Wales, and substantial tracts of western and north-western England, exhibited precisely these features. Did (as Scott terms it) ‘the friction of terrain’ set substantial limits on the reach of the state and make these areas of Britain less governable, turning many regions on the periphery into ‘zones of relative autonomy’?12 Research on taxation, smuggling, relief systems and the building of certain types of institution has begun to suggest that, to a limited extent at least, this might have been the case — a theme we shall return to in the final section. In this article we shall test the relevance of Scott’s ideas from a different angle by examining whether the inhabitants of the periphery were also able to exhibit a large measure of autonomy in another key arena: in their use of the state’s ultimate sanction, the gallows.

I

Although this article also briefly analyses both non-property crime and the period after 1775, it focuses primarily on the treatment of the main group targeted by the Bloody Code — property offenders — and on the third quarter of the eighteenth century, which is the earliest period for which systematic records are available. It is only after 1750 that a unique and under-exploited source — the sheriffs’ cravings and their associated sheriffs’ assize calendars — enables us to gather reliable data about almost every English county.13 These records were created because each county’s sheriff could, and did, claim back from the Treasury the costs incurred in hanging or otherwise punishing all assize convicts. When submitting their expense claims (or ‘cravings’), the sheriffs included the assize calendars as supporting evidence of the punishments meted out, and these calendars therefore constituted, as William Blackstone noted, ‘the only warrant that the sheriff has, for so material an act as taking the life away of another’.14 The cravings and associated calendars, when combined with the records of the Welsh Great Sessions, the Cheshire and Lancashire Palatinate jurisdictions, the Durham data in the report of 1819, and the London data kindly made available by Simon Devereaux, enable us to count the number of hangings that occurred in each county of England and Wales between 1751 and 1775, and to calculate county-based execution rates both for property crimes under the Bloody Code and for other offences, primarily murder.15 Since Rachel Bennett has kindly let us quote the execution figures she has already gathered from the records of the High Court of Justiciary between 1750 and 1770, we are also able to present some preliminary findings from north of the border.16

Focusing on the period 1750–75 is also useful for other reasons. It was a period of relative stability for the capital code. The use of hanging altered fundamentally between the late sixteenth and the early eighteenth centuries. According to Philip Jenkins’s estimates, national hanging rates peaked at between 25 and 30 per 100,000 population per year in the crisis period around 1600.17 However, they then rapidly declined to about 10 per 100,000 in the 1630s, to under 5 by 1700, and to 1.3 by 1750, after which they remained very stable until the late 1770s.18 By 1750 capital punishment was playing a completely different role from the one it had performed in 1600. As David Garland has pointed out, the English state was rapidly moving on from its ‘early modern stage’, in which the state frequently used rituals of execution to assert its claims to authority and to impress the populace.19 By 1750 it had embraced instead a range of penal policy options within which the death penalty was no longer ‘an unquestionable expression of sovereign power but a policy tool like any other’.20 Following its introduction as a formal sentencing option in 1718, transportation had quickly come to dominate the courts’ sentencing practices, and for the first time those who felt hanging was too severe a punishment for property crime had access to a tough secondary punishment which could act as an effective alternative.21 Since attitudes temporarily grew harsher in the early 1780s following the transportation crisis created by the American War of Independence and the panic about rising crime rates that followed demobilization in 1782, the period of remarkable stability in hanging rates between 1750 and the late 1770s is the best period to test underlying attitudes to capital punishment for property offenders, and ideas about its correct place within the broader range of eighteenth-century penal options.

II

The systematic county-based data on England and Wales for 1750–75, seen in the Map, indicates that there were clear and stark regional contrasts in the use of capital punishment for property offenders. If historians had analysed the scattered data on areas outside south-eastern England available in the report of 1819, they would have seen several important clues about this. For example, the report records that between 1753 and 1782 only one property offender was hanged on the Brecon Circuit (Glamorgan, Radnor and Brecon), while ninety-nine went to the gallows in Essex, despite the fact that Essex’s population was less than twice as large.22 The Map makes it clear that this immense contrast is in no way untypical. In London about 590 property offenders went to the gallows in 1750–75. In Merioneth, Glamorgan and Anglesey, no property offenders were hanged in that period. In operational terms the Bloody Code in these places was a dead letter. In the counties of Monmouthshire, Montgomeryshire, Westmorland, Brecon, Pembrokeshire and Denbighshire only one person went to the gallows for property crime in these twenty-six years. Nor can these differences be put down merely to different population sizes. Execution rates per head of population were dramatically different. The rate of executions per 100,000 population per year in London, the area with the highest rate, was over fifty times higher (at 3.85) than the average (0.07) for the ten counties with the lowest rates, namely Cornwall, Westmorland, Durham, Montgomeryshire, Pembrokeshire, Denbighshire, Northumberland, Anglesey, Glamorgan and Merioneth. The inhabitants of almost all these ten counties could expect, at most, to see one hanging for property crime in their county during their adult lifetime. In several counties they would never see one. Nor did this small number of executions leave a lasting visible example, for between 1750 and 1775 no executed property offenders were subsequently hung in chains in Wales, Cornwall or Cumberland.23

The geography of the Bloody Code in the third quarter of the eighteenth century exhibited a truly stark centre–periphery divide. These were different worlds. In London (3.85 per 100,000 population) and in the three counties nearest to it (Surrey, 1.98; Hertfordshire, 1.58; and Essex, 1.51) the gallows were extremely regularly used against property offenders. Here the Bloody Code was a major plank of penal policy. In many counties on the western periphery, that is, the far west and north-west of England and most of central and western Wales, it was virtually unused. However, behind this incredibly sharp contrast between the metropolis and the sparsely populated rural and mainly pastoral west and north-west lay a more subtle general pattern. The impact of the Bloody Code was like the ripples caused by a stone thrown into a pond. At the centre the water was greatly disturbed, but while the impact was still significant in the immediate regions around the capital, especially in the southern counties and in the east midlands, the resistance of distance (as Scott has termed it) meant that it rapidly fell away as one moved into northern England, into the south-west (Devon excepted) or into Wales. London’s annual rate of executions for property crime was about twenty times greater than that found in either Lancashire or the midlands counties of Nottinghamshire, Derbyshire and Leicestershire. In relation to the far north (Northumberland, Cumberland, Westmorland and Durham) it was over thirty times greater. Journeying west from London produced a smaller initial drop, but by the time we reach the far western county of Cornwall the figure for London was thirty-two times greater.24 Journeying into Wales produced an even greater fall. The London rate was thirty-five times greater than it was in the five counties on the western seaboard of Wales: Anglesey, Caernarfonshire, Merioneth, Cardiganshire and Pembrokeshire.25 In three Welsh counties there were no executions at all, and Wales’s reputation as ‘the land of the white gloves’ was clearly well deserved.26 This ripple effect was not uniform. Counties like Devon and Radnor stand out as exceptions, with less drastic differences in relation to London. Overall, however, there can be no doubt that historians have greatly underestimated the significance of the regional dimension of the capital code in this period.

The Scottish data is more provisional, but if we begin in 1755 instead of 1750 in order to avoid the immediate aftermath of the 1745 Jacobite rising, which temporarily increased the willingness of the Highland authorities to hang property offenders, it is clear that the Scots were even less willing to use the capital sanction than the Welsh (Table 1).27 The annual rate of executions for property offences in England in 1755–75 was 0.81. In Wales it was five times lower at 0.16, and in Scotland it was nine times lower at 0.09 (1755–70).28 Anne Crowther’s observation that in the early nineteenth century the Scottish courts were reluctant ‘to employ capital punishment on anything like the scale of England’ is clearly even more applicable to the third quarter of the eighteenth century, while Anne-Marie Kilday’s suggestion that Scottish justice ‘was more … exacting’ than ‘the infamous Bloody Code’ gets no support from this data.29 Even though the absolute numbers involved are very low, there were also significant regional differences in execution rates for property crime within Scotland. Once the Jacobite rising was a decade in the past, the Northern and Western circuits both had incredibly low rates of 0.05, but the Scottish Home Circuit (which included the capital, Edinburgh) had an overall rate more than four times greater at 0.21, a differential pattern that was still in place in 1805, when parliamentary returns first offer data on Scotland.30 Thus, within Scotland the centre and the more highly cultivated Lowlands once again had higher rates than the western and northern periphery. The contrast between southern, metropolitan England and the Scottish Highlands was truly enormous, the overall rate for the Highlands being seventy-five times lower than that in London.31 The Scottish data therefore reinforces our picture of the marginal role played by the Bloody Code on the northern and western periphery of Britain in the third quarter of the eighteenth century. However, the geography of executions for non-property crime, primarily murder, was very different. When it came to responding to murder, spatial differences were much less important and attitudes were more uniform.

TABLE 1

EXECUTION RATES FOR PROPERTY OFFENCES IN ENGLAND AND WALES (1755–1775) AND SCOTLAND (1755–1770)*

Country Executions for property Offences (no.) PopulationaYears of data (no.) Execution rates for property offencesb
Englandc1,056 6,211,289 21 0.81 
Wales 16 477,105 21 0.16 
Scotland 20 1,317,582 16 0.09 
total1,092 8,005,976 
average19 0.72 
Country Executions for property Offences (no.) PopulationaYears of data (no.) Execution rates for property offencesb
Englandc1,056 6,211,289 21 0.81 
Wales 16 477,105 21 0.16 
Scotland 20 1,317,582 16 0.09 
total1,092 8,005,976 
average19 0.72 

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The western and northern counties of England and Wales showed little reluctance to send murderers to the gallows, and as a result hangings for murder played a larger role in executions on the periphery than they did at the centre. In Glamorgan between 1750 and 1775 all of the five executions were for murder. In Monmouthshire the figure was 80 per cent; in Westmorland, Montgomeryshire and Caernarfonshire 50 per cent; in Cornwall 42 per cent. The contrast with counties near London was stark. In Essex only 9 per cent of hangings were for murder, in London only 12 per cent. In England and Wales as a whole, 19 per cent of hangings were for murder. On the Home Circuit the figure was 17 per cent; on the Western Circuit 25; on the Northern Circuit 35; in Wales 41; in Scotland 53.32 At the centre hangings were clearly about preserving property, but as we move away from London the gallows ceased to be dominated by those executed for property crimes and became increasingly a matter of an eye for an eye.33 If you killed someone and were found guilty of murder rather than manslaughter, you would almost certainly hang in later eighteenth-century Britain. The extreme reluctance to hang property offenders found in many regions on the periphery was not, therefore, a product of a general refusal to use the gallows under any circumstances. Nor was there a reluctance to make the execution of murderers more visible by hanging them in chains. Fifteen of the 134 murderers gibbeted in England and Wales between 1752 and 1834 were from areas on the periphery.34

III

The lack of systematic sources from before 1750 makes it almost impossible to determine whether this highly polarized centre–periphery pattern in relation to the hanging of property offenders had been in existence for some time.35 What is much clearer, however, is that during the crisis of the 1780s, when large-scale demobilization was accompanied by rapidly rising crime rates and increasingly severe punishment policies, the Bloody Code not only claimed many more lives in south-eastern England but also made some limited inroads into penal policy on the margins.36 The combination of poor harvests and post-war demobilization in 1782–3 brought rapidly increasing indictment rates for capital property crimes in London, and on the Home and Norfolk circuits.37 This would have led to rising execution rates for property crime even if punishment policies had not grown harsher, but this period also witnessed a considerable rise in the proportion of capital convicts left for execution.38 This partly reflected changing government policy. In 1782 the administration announced its determination to offer ‘no pardon’ to those found guilty of robbery and other capital offences.39 In 1785 the Home Circuit judges — partly in response to a pamphlet by the clergyman (and ex-barrister) Martin Madan demanding that no capital offenders be pardoned — announced that they would be following precisely that policy and then hanged all those they had sentenced to death at the Essex, Kent and Sussex assizes.40

This policy of extreme severity was immediately attacked in the press and was soon modified, but its effect, along with the rise in capital indictments, was to create the large rise in execution rates for property crime seen in Figure 1.41 In London and on the Home and Norfolk circuits they more than doubled, peaking in the five years centring on 1785 at around 9 and 4 and 2 per 100,000 per annum. The fourth and lowest line on Figure 1, which represents the pattern in the five counties on the western periphery with the best data, Cornwall, Westmorland and the three Brecon Circuit counties, had rarely crept above 0.1 in the twenty years before 1782 and had been 0.0 for over half a decade up to that point. However, although the levels reached were still extremely small compared to the other circuits in Figure 1, and although the change came somewhat later, this pattern was eroded in the later 1780s as overall execution rates for property crime in these five peripheral counties rose to a peak of 0.66 around 1789. Figure 2, which magnifies the scale and allows us to look at the Cornwall and Brecon Circuit patterns individually, indicates that these two areas followed a very similar path. Rising indictment rates probably played a role in generating these patterns, but once again the policies of certain judges also had an influence. In the mid 1780s a Montgomeryshire judge announced that ‘hanging was again a necessary expedient’, and the Brecon Circuit judge George Hardinge gave repeated warnings of his ‘determination to execute’.42 In 1789, having described his disgust at the ‘dangerous lenity’ inherent in the fact that ‘no capital punishment had been inflicted’ for sheep-stealing ‘these twenty or thirty years’, Hardinge promptly broke this pattern by leaving two sheep-stealers to hang.43 There were clearly good reasons why Byron made Hardinge the model for the ‘waggish Welsh Judge, Jefferies Hardsman’ in his poem Don Juan.44

FIGURE 1

EXECUTION RATES FOR PROPERTY OFFENCES IN MIDDLESEX, HOME CIRCUIT, NORFOLK CIRCUIT AND WESTERN PERIPHERIES, 1750–1819*

* See the sources cited in n. 36.

Notes: The figures for the western peripheries are drawn from the pattern in the five counties with the best data: Cornwall, Westmorland, Glamorgan, Radnor and Brecon. In this and Figure 2, a five-year moving average has been used to iron out large year-on-year differences.

FIGURE 1

EXECUTION RATES FOR PROPERTY OFFENCES IN MIDDLESEX, HOME CIRCUIT, NORFOLK CIRCUIT AND WESTERN PERIPHERIES, 1750–1819*

* See the sources cited in n. 36.

Notes: The figures for the western peripheries are drawn from the pattern in the five counties with the best data: Cornwall, Westmorland, Glamorgan, Radnor and Brecon. In this and Figure 2, a five-year moving average has been used to iron out large year-on-year differences.

By 1790 execution rates everywhere had fallen back to pre-crisis levels (Figure 1), but the period 1800–1 witnessed a brief resurgence of provincial execution rates. On the Brecon Circuit, where no property offenders were executed between 1792 and 1796, rates briefly peaked at over 0.6, while in Cornwall and on the Home Circuit they more than doubled, in part because of a similar (if less drastic) change of policy to that seen in the early 1780s. Faced by severe dearth, food riots and rising crime rates, Lord Kenyon announced a ‘rigorous execution of the laws’, and in Wales, Judge Hardinge was again prominent in pursuing stricter policies.45 In 1801 he hanged two Merthyr food rioters for robbery because he believed that ‘it would be dangerous to intimate that, where a hope to reduce the market price is the sole object, a rioter will be deemed innocent who pursues that object by force’.46 However, in 1802, as food prices returned to normal and the rioting ceased, this stricter policy disappeared and hanging rates settled down at new lower levels.

In the period that followed, execution levels remained significant in London and on the Home Circuit, averaging 0.8–1.3 between 1805 and 1815.47 On the periphery, by contrast, execution rates returned to the negligible levels of the period 1750–75. When contemporary newspapers reported in 1785 that ‘there has not been an execution in the county of Anglesey for upwards of thirty years’ and in 1822 that ‘an execution has not occurred at Presteign for the last seventeen years’, they were not pedalling a convenient myth but reflecting real experience.48 Overall, therefore, between the mid eighteenth century and the late 1820s (with the exception of brief periods in the 1780s and 1800–1) the hanging of property offenders followed a very different pattern on the periphery from that observed at the centre. On the western and northern periphery of England, in most of Wales and in Scotland outside the south-central belt, the Bloody Code was very rarely used in relation to property offenders.

IV

Explaining these huge differences in the use of the Bloody Code between the centre and the periphery involves peeling away a succession of layers within the deeply discretionary process that was the eighteenth-century criminal law, and addressing a range of questions. Were fewer crimes committed on the periphery, or were the inhabitants of those areas less inclined to prosecute property offenders? If they did decide to prosecute, were they less willing to choose a capital charge? Was the local magistracy more inclined to divert potential felony accusations at the committal stage? At the assizes were the grand jurors more willing to dismiss the accusation as ‘not found’, and if the indictment was sent on to the petty jurors, were they less willing to convict, and/or more willing to use partial verdicts to reduce the conviction to a non-capital one? Finally, once capitally convicted, were property offenders in these regions more likely to be pardoned? Some of these stages cannot be analysed quantitatively. For example, victims’ decisions about whether or not to prosecute were very rarely recorded and magistrates’ preliminary decisions are equally hard to reconstruct.49 However, jurors’ decisions can be analysed for a sample of counties, and the pardoning process can be fairly systematically surveyed through the sheriffs’ cravings, while one other potentially useful index — the parliamentary figures on county indictment rates — is also worth consideration.50

Unfortunately this indictment rate data only begins in 1805 and offers only one figure per county, which covers all felonies, including non-capital thefts, murder and other non-property offences.51 Overall, however, these figures confirm what we would expect from the work of J. M. Beattie and others on individual counties.52 Indictment rates per 100,000 population between 1805 and 1811 were much higher in the predominantly urban counties and often lowest in the rural and pastoral ones of Wales and the north and west of England.53 However, these differences in recorded crime rates in no way account for the significant differences in execution rates. In the counties of Kent, Surrey and Essex, for example, indictment rates for 1805–11 were three times higher (at about 60 indictments per 100,000 population per year) than those on the Brecon Circuit (which averaged 20 per 100,000). Execution rates for 1750–75, by contrast, were twenty-one times higher in the former. Cornwall’s indictment rate (18 per 100,000) was eight times lower than London’s (142), yet its execution rate was thirty-two times lower.54 In the absence of comprehensive indictment data for 1750–75 conclusions must be very tentative, but while indictment rates almost certainly played a substantial role in creating differences in execution rates between the centre and the periphery in the third quarter of the eighteenth century, it is clear that this was only part of the explanation. Although the lower indictment rates found on the periphery may have been partly a response to the longer journeys usually necessary to find a magistrate in upland areas, they were also evidence of different underlying attitudes. A number of historians have argued that various areas on the periphery dealt with a higher proportion of potentially serious crimes informally, using informal compensation or community-based punishments, such as ceffyl pren (a kind of ‘rough music’), to avoid taking offenders to the formal courts, and these informal approaches in their turn may well have been founded on a deep opposition towards the capital code in relation to property offenders and a consequent commitment to avoid indictment whenever possible.55

The data on jury decision-making at the centre and on the periphery seen in Tables 2 and 3, which is based on four contrasting areas — London and Essex at the centre, and Cornwall and Wales on the periphery — indicates that both grand and petty jurors played a vital role in the creation of the highly polarized execution rates seen in the Map.56 Unfortunately ‘not found’ indictments were often thrown away, and only two of these four areas, Wales and Essex, can be used to look at grand jury decisions. The results are, however, extremely thought-provoking. On the Brecon Circuit in 1750–60, 34.2 per cent of assizes indictments were ‘not found’ by the grand jury.57 In the same period at the Essex assizes only 11.9 per cent of offenders avoided punishment in this way, a similar figure to that found by Beattie in Surrey over the period 1660–1800.58 Overall, therefore, Welsh defendants were three times more likely to escape a public trial because of the leniency of the local grand juries.59

TABLE 2

GRAND AND PETTY JURY VERDICTS, ROBBERY, WALES AND ESSEX, 1750–1775*

Wales Essex 
Grand jury verdicts 
    Not found 31 13 
    Found 16 103 
    Total 47 116 
    % not found 66 11 
Petty jury verdicts 
    Not guilty 11 35 
    Partial verdict 
    Guilty on full charge 67 
    Total 16 103 
    % not guilty 69 34 
    % partial verdict 
    % guilty on full charge 31 65 
Combined grand and petty jury verdicts 
    Guilty on full charge 67 
    Total 47 116 
    % guilty on full charge 11 58 
Wales Essex 
Grand jury verdicts 
    Not found 31 13 
    Found 16 103 
    Total 47 116 
    % not found 66 11 
Petty jury verdicts 
    Not guilty 11 35 
    Partial verdict 
    Guilty on full charge 67 
    Total 16 103 
    % not guilty 69 34 
    % partial verdict 
    % guilty on full charge 31 65 
Combined grand and petty jury verdicts 
    Guilty on full charge 67 
    Total 47 116 
    % guilty on full charge 11 58 

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TABLE 3

PETTY JURY VERDICTS, BURGLARY, HOUSEBREAKING AND THEFT FROM A DWELLING HOUSE COMBINED, WALES, CORNWALL, ESSEX, AND LONDON, 1750–1775*

Verdict Region
Total 
Wales Cornwall Essex London 
Not guilty 60 23 47 622 704 
Partial verdict 52 54 91 655 758 
Guilty on full charge 41 19 96 789 849 
Total 153 96 234 2,066 2,311 
% not guilty 39 24 20 30 30 
% partial verdict 34 56 39 32 33 
% guilty on full charge 27 20 41 38 37 
Verdict Region
Total 
Wales Cornwall Essex London 
Not guilty 60 23 47 622 704 
Partial verdict 52 54 91 655 758 
Guilty on full charge 41 19 96 789 849 
Total 153 96 234 2,066 2,311 
% not guilty 39 24 20 30 30 
% partial verdict 34 56 39 32 33 
% guilty on full charge 27 20 41 38 37 

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The petty jurors had more options. If they did not want to put the offender at risk of being hanged, they frequently resorted to the use of a partial verdict, reducing the offence in order to avoid a capital sentence. Some capital offences, most notably horse- and sheep-stealing, were very difficult to redefine.60 The same was true of robbery. It was widely believed in this period that ‘robbery could not be reduced to simple theft’ and partial verdicts were very rare.61 By contrast, in housebreaking and burglary cases juries frequently brought in verdicts such as ‘guilty of stealing only, not guilty of breaking and entering’, and the same was true of stealing in the dwelling house without breaking in, which was only a capital offence if the goods stolen were worth at least 40s.62 Since these four offences — robbery, burglary, housebreaking and stealing from a dwelling house — were also the main forms of property crime that created large numbers of capital convictions in both rural and urban areas, this analysis focuses mainly on them.63

When the data for both grand and petty jury decisions is put together, a quite startling difference emerges for the offence that was the greatest source of candidates for the gallows: robbery. As Table 2 indicates, the Welsh jurors, both petty and grand, made extensive efforts to prevent offenders from being found guilty of robbery. The Welsh grand jurors rejected an astounding 66 per cent of the robbery indictments as ‘not found’, whereas their Essex equivalents only allowed 11.2 per cent of the accused to escape in this way. Welsh petty jurors were equally generous. Over two-thirds of those they tried were found not guilty compared to 34 per cent in Essex. Overall these two sets of decisions meant that only 11 per cent of Welsh robbers were found fully guilty and therefore at risk of being hanged. The Essex figure was over five times higher at 58 per cent.64

COUNTY EXECUTION RATES FOR ALL PROPERTY OFFENCES, ENGLAND AND WALES, 1750–1775 (execution rates are per 100,000 population per annum)*

* See the sources cited in nn. 13, 15 and 16. We are extremely grateful to Dr Ben Wheeler of the European Centre for Environment and Human Health, University of Exeter Medical School, for generating the map (using ArcGIS 10.1, Esri, Redlands, Calif.).

COUNTY EXECUTION RATES FOR ALL PROPERTY OFFENCES, ENGLAND AND WALES, 1750–1775 (execution rates are per 100,000 population per annum)*

* See the sources cited in nn. 13, 15 and 16. We are extremely grateful to Dr Ben Wheeler of the European Centre for Environment and Human Health, University of Exeter Medical School, for generating the map (using ArcGIS 10.1, Esri, Redlands, Calif.).

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