Some Thoughts on . . .

The 'Bloody Code'

No one seems to know precisely when the term "the Bloody Code" was first coined.

It refers of course to the vast increase in the legislation of capital felonies from 1688 to 1815, which increased the number of crimes punishable by death from about 50 to about 200. I've regularly seen the claim that it was "common" and "traditional" for contemporary people to refer to the criminal legislation thus, but I rather doubt that, since I haven't been able to locate the use of the phrase in any 18th-century document. It seems to be a propaganda phrase devised for the purposes of radical reform, coined perhaps during the late 1780s, more likely coined during the 1820s during the campaign for radical reform of the laws, or perhaps most likely not coined until the early 20th century as part of left-leaning study of "history from below".

The great irony is that there were actually fewer capital convictions and executions during the Hanoverian period than the Elizabethan or Tudor periods. Even Peter Linebaugh admits this, and Gatrell noted that "the list of capital crimes looked more appalling than it really was." The main reason for the increase in crimes punishable by death is really just a technicality: eager legislators (who of course met more regularly after 1688) steadily specified and subdivided common-law crimes so as to define them in the statute book. But in fact most of the "new" capital felonies had previously been covered by general common-law felonies. The large majority of capital punishments were for crimes involving the threat or use of violence, and were already punishable by death under the unwritten common law. So I think it's probably only a body of literal-minded lawyers who would come up with the phrase "the Bloody Code". (Though ordinary people and journalists did commonly use the phrase "Bloody Assizes" for sessions when an unusually large number of people were sentenced to be hanged.)

I've read many of the modern historians of the subject (by Linebaugh, Hay, Beattie, Cockburn, Sharpe, Gatrell etc.), but they don't seem to identify the precise historical origin of the phrase "the bloody code". Gatrell cites an article in the Gentleman's Magazine in 1784 which uses the phrase "Bloody Country" (in relation to capital executions), but when Gatrell goes on to discuss the "bloody code" his earliest reference (slightly ambiguous) is to an article by a French radical in 1820. It's possible it originated in the 1770s with someone like Burke, but it's also quite possible that it didn't originate until two or more generations later. The earliest reference (mentioned by Gatrell) might have been a speech in the House of Commons by an MP named Sinclair: "What shall we say of a code, which, if strictly or even moderately enforced during a single year, would deluge every part of the country with such an effusion of human blood as would appal the most unfeeling, and startle the most indifferent?" It's not clear that this sort of sentiment and phrasing occurred any earlier than this.

In Cobbett's Political Register, vol.49, issue 4, 13 March 1824, p. 645 there is a reference to "this now really bloody Code", but that refers to a Bill to authorize the use of snares to capture game poachers, i.e. giving the aristocracy the monopoly on hunting wild animals. There are other 19th-century sources referring to the bloody Code of Honour, i.e. duelling; and to the bloody code of Draco (i.e. draconian), but in the strictly classical history context. I can't find any usage of the term in 18th century or early 19th century sources to describe the English code of statutory laws.

I've checked the Oxford English Dictionary, using full text searching on disk, but came up with nothing. Brewer's Phrase and Fable also doesn't list the phrase. A Google web search of numerous pages on the history of crime and legislation makes it pretty clear that the term was coined much later rather than earlier, with the phrase being recycled as a cliché but gives no precise pointer to an origin. I rather suspect that the phrase might have been coined in the twentieth century, and in so far as it is ascribed as a sentiment common to earlier periods, it is really an urban legend.

On a related topic, every so often I come across mention of "a nine-year-old boy hanged for stealing a loaf of bread", with the suggestion that this was typical of 18th-century criminal practice. But no one seems to identify this particular case, and I haven't been able to locate it in the extensive trials available on-line. Does it exist? I've come across a case in January 1758 in which a woman was prosecuted for receiving stolen goods from a nine-year-old boy accused of shoplifting, but when the court learned the boy was only nine years old the judge declared that "As the boy was not capable of distinguishing between good and evil , so no felony, and if no felony no accessary, wherefore they were both acquitted. Is the nine-year-old boy hanged for stealing a loaf of bread another urban legend?

Copyright © 2003, 2014 Rictor Norton. All rights reserved. Reproduction for sale or profit prohibited. My comments originally appeared on the 18th Century Interdisciplinary Discussion List in May 2003.

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