rethinking the bloody code in eighteenth-century britain

RETHINKING THE BLOODY CODE INEIGHTEENTH-CENTURY BRITAIN:

CAPITAL PUNISHMENTAT THECENTRE AND ON THE PERIPHERY*

During the long eighteenth century the capital code, and morespecifically the so-called ‘Bloody Code’, which subjected a vastand increasing range of property crimes to the death penalty, wasthe 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 agrowing volume of contemporary pamphlets and parliamentarydebates centred on the need to reform the capital statutes.3 Theimpact of the Bloody Code has also attracted much attentionfrom historians, some of whom have argued that it played a vitalrole both within the criminal law and in eighteenth-century social

* We are very grateful to the Wellcome Trust for their extremely generous support ofthe project Harnessing the Power of the Criminal Corpse (grant no. 095904/Z/11/Z),from which this article was researched and written. We should also like to thank ourcolleagues on the project for their helpful comments on previous drafts of the work,namely Rachel Bennett, Owen Davies, Zoe Dyndor, Elizabeth Hurren, ShaneMcCorristine, Francesca Matteoni, Sarah Tarlow and Floris Tomasini.

1 Not all of the rapidly expanding sheaf of capital statutes passed by parliament inthe seventeenth and eighteenth centuries involved property offences, but the vastmajority were designed to protect property and to prevent its appropriation: seePeter Linebaugh, The London Hanged: Crime and Civil Society in the EighteenthCentury (London, 1991), 54.

2 V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868(Oxford, 1994), 56–7; Thomas W. Lacqueur, ‘Crowds, Carnival and the State inEnglish Executions, 1604–1868’, in A. L. Beier, David Cannadine and James M.Rosenheim (eds.), The First Modern Society: Essays in English History in Honour ofLawrence Stone (Cambridge, 1989).

3 Peter King, ‘Making Crime News: Newspapers, Violent Crime and the SelectiveReporting of Old Bailey Trials in the Late Eighteenth Century’, Crime, Histoire etSocietes / Crime, History and Societies, xiii (2009), 110–11; Randall McGowen, ‘TheProblem of Punishment in Eighteenth-Century England’, in Simon Devereaux andPaul Griffiths (eds.), Penal Practice and Culture, 1500–1900: Punishing the English(Basingstoke, 2004); Randall McGowen, ‘The Body and Punishment inEighteenth-Century England’, Journal of Modern History, lix (1987); RandallMcGowen, ‘A Powerful Sympathy: Terror, the Prison and Humanitarian Reform inEarly Nineteenth-Century Britain’, Journal of British Studies, xxv (1986); LeonRadzinowicz, A History of English Criminal Law and its Administration from 1750,5 vols. (London, 1948–86), i, chs. 8–18.

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relations more generally. V. A. C. Gatrell, for example, hassuggested that ‘the sanction of the gallows and the rhetoric ofthe death sentence were central to all relations of authority inGeorgian England’.4 However, the geography of the BloodyCode, and the possibility that there were major regionaldifferences, both in the use of hanging, and in attitudes to it,have been largely ignored by historians. By systematicallyexploring the spatial dimensions of capital punishment ineighteenth-century Britain, this article will highlight animportant aspect of criminal justice history — the widespreadreluctance of many areas on the periphery to implement theBloody Code — which both contemporary advocates of reformand later historians have almost completely ignored.

Historians working on criminal justice in particular regionshave occasionally made reference to the possibility that thegeography of execution was uneven. Gwenda Morgan and PeterRushton, for example, noted briefly that the north-east had ‘longperiods without a hanging’, while the limited writing available onScotland has just started to explore whether Scottish justice wasless ‘exacting’ than the English Bloody Code.5 John Minkes’sexamination of the Brecon Circuit in the 1750s and David J. V.Jones’s brief article ‘Life and Death in Eighteenth-CenturyWales’ have tentatively suggested that Welsh capital convictsreceived ‘more favourable punishment’, but this work hasbeen largely ignored by those investigating capital punishmentin eighteenth-century England.6 While J. S. Cockburn andothers have shown an awareness that ‘executions weredisproportionately concentrated in London’, very few

4 Gatrell, Hanging Tree, 32.5 Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law: The

Problem of Law Enforcement in North-East England, 1718–1800 (London, 1998), 141;Jim Smyth and Alan McKinlay, ‘Whigs, Tories and Scottish Legal Reform, c.1785–1832’, Crime, Histoire et Societes / Crime, History and Societies, xv (2011); M. AnneCrowther, ‘Crime, Prosecution and Mercy: English Influences and Scottish Practicein the Early Nineteenth Century’, in S. J. Connolly (ed.), Kingdoms United? GreatBritain and Ireland since 1500: Integration and Diversity (Dublin, 1999), 21; Anne-Marie Kilday, ‘Contemplating the Evil Within: Examining Attitudes to Criminalityin Scotland, 1700–1840’, in David Lemmings (ed.), Crime, Courtrooms and the PublicSphere in Britain, 1700–1850 (Farnham, 2012), 152.

6 John Minkes, ‘Wales and the ‘‘Bloody Code’’: The Brecon Circuit of the Court ofGreat Sessions in the 1750s’, Welsh History Review, xxii (2006); David J. V. Jones, ‘Lifeand Death in Eighteenth-Century Wales’, Welsh History Review, x (1980–1), 539;David J. V. Jones, Crime in Nineteenth-Century Wales (Cardiff, 1992).

160 PAST AND PRESENT NUMBER 228

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historians have gone beyond a simple and largely unexploreddichotomy between the metropolis and the provinces.7

Although Gatrell mentioned that there were parts of thecountry where hangings were rare, he did not analyse hangingrates in different areas and, following Leon Radzinowicz’searlier analysis of the execution data found in the Reporton the Criminal Laws of 1819, the only eighteenth-century statistics Gatrell quoted related to the south-east ofEngland.8 Detailed studies of Surrey, Essex and Staffordshirehave since been published, and Douglas Hay has recentlyproduced some nationwide graphs of pardoning rates after1760, but we still have no county- or regional-level analyses ofexecution rates per head of population, which are the key tomaking effective geographical comparisons about the impact ofthe Bloody Code.9 Using a hitherto largely neglected set ofsources, this article will show that execution rates variedsystematically across Britain, and that the Bloody Code waswidely used at the centre of the British state but often ignoredon the periphery: in the far west, the north and north-west ofEngland, as well as in almost all of Scotland and Wales.

The article will conclude by briefly exploring a number ofbroader issues that this research raises: about the key rolehistorians have given to the Bloody Code in maintaining thehegemony of the eighteenth-century elite, about the process bywhich the capital code came to be reformed, and about the natureof social policy implementation in the eighteenth-century Britishstate. As Joanna Innes has pointed out, English historians have

7 J. S. Cockburn, ‘Punishment and Brutalization in the English Enlightenment’,Law and History Review, xii (1994), 159.

8 Gatrell, Hanging Tree, 58, 202, 421, 616; Radzinowicz, History of English CriminalLaw and its Administration, i, chs. 4–5. Douglas Hay, ‘Property, Authority and theCriminal Law’, in Douglas Hay et al. (eds.), Albion’s Fatal Tree: Crime and Society inEighteenth-Century England (London, 1975), 23, also uses these two areas only. Thereport of 1819 does contain some eighteenth-century data on circuits outside thesouth-east including Durham from 1755, the Western Circuit from 1770 and theBrecon Circuit from 1753. However, it does not include any information onScotland or many other areas such as the Northern Circuit for the eighteenthcentury. See Report from the Select Committee on the Criminal Laws, ParliamentaryPapers (hereafter P.P.), 1819 (585), viii.

9 Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000);J. M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford, 1986); DouglasHay, ‘Hanging and the English Judges: The Judicial Politics of Retention andAbolition’, in David Garland, Randall McGowen and Michael Meranze (eds.),America’s Death Penalty: Between Past and Present (New York, 2011), 134–5.

RETHINKING THE BLOODY CODE IN BRITAIN 161

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rarely set studies of crime or poverty within a wider Britishframe.10 By exploring the uneven implementation of the capitalcode in England, Wales and Scotland, this article aims to remedythis for at least one important aspect of the criminal justicesystem. More importantly it will explore the extent to whichJames C. Scott’s broader theories about the relative autonomyexperienced by regions on the periphery are applicable toeighteenth-century Britain.11 Although Scott’s important bookThe Art of Not Being Governed is based on South-East Asia, someof his key concepts have much relevance here. His ideas about thedifficulties the state experienced in governing the inhabitants ofrelatively distant and inaccessible regions (and particularly areascharacterized by their upland or mountainous terrain, pastoralagriculture, low population density and inadequate transportlinks) are clearly applicable to eighteenth-century Britain,where most of Scotland and Wales, and substantial tracts ofwestern and north-western England, exhibited precisely thesefeatures. Did (as Scott terms it) ‘the friction of terrain’set substantial limits on the reach of the state and make theseareas of Britain less governable, turning many regions on theperiphery into ‘zones of relative autonomy’?12 Research ontaxation, smuggling, relief systems and the building of certaintypes of institution has begun to suggest that, to a limitedextent at least, this might have been the case — a theme weshall return to in the final section. In this article we shall test therelevance of Scott’s ideas from a different angle by examiningwhether the inhabitants of the periphery were also able toexhibit a large measure of autonomy in another key arena: intheir use of the state’s ultimate sanction, the gallows.

I

Although this article also briefly analyses both non-propertycrime and the period after 1775, it focuses primarily on the

10 Joanna Innes, ‘What Would a ‘‘Four Nations’’ Approach to the Study ofEighteenth-Century British Social Policy Entail?’, in Connolly (ed.), KingdomsUnited?, 183.

11 James C. Scott, The Art of Not Being Governed: An Anarchist History of UplandSoutheast Asia (New Haven, 2009).

12 Scott, Art of Not Being Governed, pp. ix, 2.


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treatment of the main group targeted by the Bloody Code —property offenders — and on the third quarter of the eighteenthcentury, which is the earliest period for which systematic recordsare available. It is only after 1750 that a unique and under-exploited source — the sheriffs’ cravings and their associatedsheriffs’ assize calendars — enables us to gather reliable dataabout almost every English county.13 These records werecreated because each county’s sheriff could, and did, claimback from the Treasury the costs incurred in hanging orotherwise punishing all assize convicts. When submitting theirexpense claims (or ‘cravings’), the sheriffs included the assizecalendars as supporting evidence of the punishments metedout, and these calendars therefore constituted, as WilliamBlackstone noted, ‘the only warrant that the sheriff has, for somaterial an act as taking the life away of another’.14 The cravingsand associated calendars, when combined with the records of theWelsh Great Sessions, the Cheshire and Lancashire Palatinatejurisdictions, the Durham data in the report of 1819, and theLondon data kindly made available by Simon Devereaux,enable us to count the number of hangings that occurred ineach county of England and Wales between 1751 and 1775,and to calculate county-based execution rates both for propertycrimes under the Bloody Code and for other offences, primarilymurder.15 Since Rachel Bennett has kindly let us quote theexecution figures she has already gathered from the records ofthe High Court of Justiciary between 1750 and 1770, we are

13 The National Archives, London (hereafter TNA), Sheriffs’ Cravings, T 64/262,T 90/148–66, Sheriffs’ Assize Calendars, E 389/242–8.

14 William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1765–9), iv, 369. The cravings — lists of all the yearly costs claimed by the sheriff — were alsoaccompanied by receipts for gaoler’s bills, maintenance work and other punishment-related outlays. See, for example, TNA, E 389/245/1–24.

15 National Library of Wales, Aberystwyth, Crime and Punishment online database(hereafter NLW, Crime and Punishment),5http://www.llgc.org.uk/sesiwn_fawr/index_s.htm4(accessed 7 Nov. 2013); TNA, PL 28/2–3, CHES 21/7, DURH 16/1–2; Reporton the Criminal Laws, 236–50. We are very grateful to Simon Devereaux for providingus with his database of London capital convictions. E. A. Wrigley, ‘English CountyPopulations in the Later Eighteenth Century’, Economic History Review, lx (2007), 54–5, has supplied the population data needed. The only gap in the cravings-based data isthe nineteen towns and cities that could pass death sentences outside the county assize,since the executions in these places were not included within the cravings. Thesejurisdictions have therefore been excluded from the county population estimates,against which county by county execution rates were calculated.


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http://www.llgc.org.uk/sesiwn_fawr/index_s.htm

http://www.llgc.org.uk/sesiwn_fawr/index_s.htm

also able to present some preliminary findings from north ofthe 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 useof hanging altered fundamentally between the late sixteenth andthe early eighteenth centuries. According to Philip Jenkins’sestimates, national hanging rates peaked at between 25 and 30per 100,000 population per year in the crisis period around1600.17 However, they then rapidly declined to about 10 per100,000 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 By1750 capital punishment was playing a completely different rolefrom the one it had performed in 1600. As David Garland haspointed out, the English state was rapidly moving on from its‘early modern stage’, in which the state frequently used ritualsof execution to assert its claims to authority and to impress thepopulace.19 By 1750 it had embraced instead a range of penalpolicy options within which the death penalty was no longer ‘anunquestionable expression of sovereign power but a policytool like any other’.20 Following its introduction as a formalsentencing option in 1718, transportation had quickly come to

16 Our thanks to Rachel Bennett: see her ‘Death, Execution and the CriminalCorpse: Understanding Post-Mortem Punishment in Scotland, 1745–1832’ (Univ.of Leicester Ph.D. thesis, forthcoming). Also useful but incomplete is Alex F. Young,The Encyclopaedia of Scottish Executions, 1750–1963 (Orpington, 1998).

17 Philip Jenkins, ‘From Gallows to Prison? The Execution Rate in Early ModernEngland’, Criminal Justice History, vii (1986), 52, 56; J. A. Sharpe, Judicial Punishmentin England (London, 1990), 27–36.

18 Jenkins, ‘From Gallows to Prison?’, 61. Since these national estimates were basedmainly on areas which this article identifies as having higher than average hangingrates, they may overestimate absolute levels but probably remain a good guide tochange over time. Sharpe’s work on Cheshire, which (like Jenkins’s figures) doesnot differentiate between executions for property crime and executions for non-property crime, broadly confirms Jenkins’s estimates. Cheshire execution rates werefour to five times greater in 1580–1640 than in 1690–1709 (1.5 per 100,000 per year).See J. A. Sharpe, Crime in Early Modern England, 1550–1750, 2nd edn (London,1999), 90–2. Between 1750 and 1775 the figure for Cheshire for all types ofoffender (0.54) was lower than half the national average. Our data for 1750–75suggests an overall figure of 1.2 for all types of offender and 0.9 for property crimealone.

19 David Garland, ‘Modes of Capital Punishment: The Death Penalty in HistoricalPerspective’, in Garland, McGowen and Meranze (eds.), America’s Death Penalty.

20 Ibid., 51. Hanging was still a useful selective instrument of penal policy (Hay,‘Property, Authority and the Criminal Law’; King, Crime, Justice and Discretion inEngland ), but, as Fielding pointed out, the gallows rituals no longer worked verywell as a ceremonial celebration of state power: see Henry Fielding, ‘An Enquiry


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dominate the courts’ sentencing practices, and for the first timethose who felt hanging was too severe a punishment for propertycrime had access to a tough secondary punishment which couldact as an effective alternative.21 Since attitudes temporarily grewharsher in the early 1780s following the transportation crisiscreated by the American War of Independence and the panicabout rising crime rates that followed demobilization in 1782,the period of remarkable stability in hanging rates between1750 and the late 1770s is the best period to test underlyingattitudes to capital punishment for property offenders, andideas about its correct place within the broader range ofeighteenth-century penal options.

II

The systematic county-based data on England and Wales for1750–75, seen in the Map, indicates that there were clear andstark regional contrasts in the use of capital punishment forproperty offenders. If historians had analysed the scattered dataon areas outside south-eastern England available in the report of1819, they would have seen several important clues about this.For example, the report records that between 1753 and 1782 onlyone property offender was hanged on the Brecon Circuit(Glamorgan, Radnor and Brecon), while ninety-nine went tothe gallows in Essex, despite the fact that Essex’s populationwas less than twice as large.22 The Map makes it clear that thisimmense contrast is in no way untypical. In London about 590

(n. 20 cont.)

into the Causes of the Late Increase in Robbers’, in The Complete Works of HenryFielding, ed. W. Henley (New York, 1902), pp. xiii, 122–5.

21 Beattie, Crime and the Courts in England, 620; King, Crime, Justice and Discretion inEngland, 264.

22 Report on the Criminal Laws, 254–5. Two others were recorded as guilty of‘felony’, but no punishment is listed: figures for Essex based on assize records aslisted in King, Crime, Justice and Discretion in England, 133. For another contrast,Beattie, Crime and the Courts in England, 536–7, states that Surrey hanged 101property offenders in the years 1749–75; while in Durham there were only twohangings for property crimes between 1755 and 1775: Report on the Criminal Laws,242–4. Contemporaries usually argued that the parliamentary returns would slightlyoverestimate the number of hangings because ‘the King’s pardon may have been sentwithout the knowledge of the clerk of assize’: ibid., 101. However, the actual figure forDurham may have been three: TNA, DURH 16/1–2; Maureen Anderson, DurhamExecutions from 1700 to 1900 (Barnsley, 2007), 22–5.


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property offenders went to the gallows in 1750–75. In Merioneth,Glamorgan and Anglesey, no property offenders were hangedin that period. In operational terms the Bloody Code in theseplaces was a dead letter. In the counties of Monmouthshire,Montgomeryshire, Westmorland, Brecon, Pembrokeshire andDenbighshire only one person went to the gallows for propertycrime in these twenty-six years. Nor can these differences be putdown merely to different population sizes. Execution rates perhead of population were dramatically different. The rate ofexecutions per 100,000 population per year in London, thearea 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 theseten counties could expect, at most, to see one hanging forproperty crime in their county during their adult lifetime. Inseveral counties they would never see one. Nor did this smallnumber of executions leave a lasting visible example, forbetween 1750 and 1775 no executed property offenders weresubsequently hung in chains in Wales, Cornwall orCumberland.23

The geography of the Bloody Code in the third quarter of theeighteenth century exhibited a truly stark centre–peripherydivide. These were different worlds. In London (3.85 per100,000 population) and in the three counties nearest to it(Surrey, 1.98; Hertfordshire, 1.58; and Essex, 1.51) the gallowswere extremely regularly used against property offenders. Herethe Bloody Code was a major plank of penal policy. In manycounties on the western periphery, that is, the far west andnorth-west of England and most of central and western Wales,it was virtually unused. However, behind this incredibly sharpcontrast between the metropolis and the sparsely populatedrural and mainly pastoral west and north-west lay a more subtlegeneral pattern. The impact of the Bloody Code was like theripples caused by a stone thrown into a pond. At the centre thewater was greatly disturbed, but while the impact was stillsignificant in the immediate regions around the capital,

23 TNA, Sheriffs’ Cravings, T 64/262, T 90/148–66, Sheriffs’ Assize Calendars, E389/242–8; NLW, Crime and Punishment.


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COUNTY EXECUTION RATES FOR ALL PROPERTYOFFENCES, 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 forEnvironment and Human Health, University of Exeter Medical

School, for generating the map (using ArcGIS 10.1, Esri,Redlands, Calif.).


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especially in the southern counties and in the east midlands, theresistance of distance (as Scott has termed it) meant that it rapidlyfell away as one moved into northern England, into the south-west (Devon excepted) or into Wales. London’s annual rate ofexecutions for property crime was about twenty times greaterthan that found in either Lancashire or the midlands countiesof Nottinghamshire, Derbyshire and Leicestershire. In relationto the far north (Northumberland, Cumberland, Westmorlandand Durham) it was over thirty times greater. Journeying westfrom London produced a smaller initial drop, but by the time wereach the far western county of Cornwall the figure for Londonwas thirty-two times greater.24 Journeying into Wales producedan even greater fall. The London rate was thirty-five times greaterthan it was in the five counties on the western seaboard of Wales:Anglesey, Caernarfonshire, Merioneth, Cardiganshire andPembrokeshire.25 In three Welsh counties there were noexecutions at all, and Wales’s reputation as ‘the land of thewhite gloves’ was clearly well deserved.26 This ripple effect wasnot uniform. Counties like Devon and Radnor stand out asexceptions, with less drastic differences in relation to London.Overall, however, there can be no doubt that historians havegreatly underestimated the significance of the regionaldimension of the capital code in this period.

The Scottish data is more provisional, but if we begin in 1755instead of 1750 in order to avoid the immediate aftermath of the1745 Jacobite rising, which temporarily increased the willingnessof the Highland authorities to hang property offenders, it is clearthat the Scots were even less willing to use the capital sanctionthan the Welsh (Table 1).27 The annual rate of executions forproperty offences in England in 1755–75 was 0.81. In Wales it

24 London’s rates were four times higher than those in Gloucestershire, Wiltshire,Oxfordshire and Hampshire. A similar pattern is found to the east. London’s annualrate of executions for property crime was between two and three times that of Surreyand Essex, but it was more than eleven times greater than in the rest of East Anglia:Suffolk, Norfolk, Cambridgeshire and Huntingdonshire.

25 The ratio was equally great in relation to central and southern Wales.26 White gloves were traditionally given to the assize judge if the assizes had been a

‘maiden’, one with no capital convictions: see Jones, Crime in Nineteenth-CenturyWales, 1. It was custom for the sheriff to pay 5s. ‘glove money’ at the conclusion of amaiden assizes. This was frequently charged by sheriffs in the cravings, but neverallowed by the Treasury: TNA, T 90/168.

27 Rachel Bennett’s data on hangings in the records of the High Court of Justiciaryfor the period 1755–70 is used here.


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was five times lower at 0.16, and in Scotland it was nine timeslower at 0.09 (1755–70).28 Anne Crowther’s observation that inthe early nineteenth century the Scottish courts were reluctant ‘toemploy capital punishment on anything like the scale of England’is clearly even more applicable to the third quarter of theeighteenth century, while Anne-Marie Kilday’s suggestionthat Scottish justice ‘was more . . . exacting’ than ‘the infamousBloody Code’ gets no support from this data.29 Even though theabsolute numbers involved are very low, there were alsosignificant regional differences in execution rates for propertycrime within Scotland. Once the Jacobite rising was a decade inthe past, the Northern and Western circuits both had incrediblylow rates of 0.05, but the Scottish Home Circuit (which includedthe capital, Edinburgh) had an overall rate more than four timesgreater at 0.21, a differential pattern that was still in place in 1805,when parliamentary returns first offer data on Scotland.30 Thus,

TABLE 1EXECUTION RATES FOR PROPERTY OFFENCES IN ENGLAND AND

WALES (1755–1775) AND SCOTLAND (1755–1770)*

Country Executions forproperty

Offences (no.)

Populationa Years of data(no.)

Execution ratesfor property

offencesb

Englandc 1,056 6,211,289 21 0.81Wales 16 477,105 21 0.16Scotland 20 1,317,582 16 0.09

TOTAL 1,092 8,005,976AVERAGE 19 0.72

* See the sources cited in nn. 13, 15 and 16.a Population estimates for England and Wales are based on the year 1765, and for

Scotland on the year 1762.b Execution rates are per 100,000 population per annum.c Including Cheshire and Monmouthshire.

28 Gatrell noted in passing that ‘Scotlandhad few hangings anyway’: Hanging Tree, p. ix.29 Crowther, ‘Crime, Prosecution and Mercy’, 21; Kilday, ‘Contemplating the Evil

Within’, 152.30 In the years 1805–14 there were no executions in the Northern Division of

Scotland, and the North-Western and North-Eastern divisions averaged 0.08, theGlasgow area 0.28 and the South-Eastern Division (encompassing Edinburgh)0.46: see Scotland: A Return of Persons, Male and Female, Committed, in the Years . . .to the Several Gaols in Scotland, P.P., 1812–13 (45), x, 217–32; 1814–15 (163), xi,293–312.


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within Scotland the centre and the more highly cultivatedLowlands once again had higher rates than the western andnorthern periphery. The contrast between southern,metropolitan England and the Scottish Highlands was trulyenormous, the overall rate for the Highlands being seventy-fivetimes lower than that in London.31 The Scottish data thereforereinforces our picture of the marginal role played by the BloodyCode on the northern and western periphery of Britain in thethird quarter of the eighteenth century. However, thegeography of executions for non-property crime, primarilymurder, was very different. When it came to responding tomurder, spatial differences were much less important andattitudes were more uniform.

The western and northern counties of England and Walesshowed little reluctance to send murderers to the gallows, andas a result hangings for murder played a larger role inexecutions on the periphery than they did at the centre. InGlamorgan between 1750 and 1775 all of the five executionswere for murder. In Monmouthshire the figure was 80 per cent;in Westmorland, Montgomeryshire and Caernarfonshire 50 percent; in Cornwall 42 per cent. The contrast with counties nearLondon was stark. In Essex only 9 per cent of hangings were formurder, in London only 12 per cent. In England and Wales as awhole, 19 per cent of hangings were for murder. On the HomeCircuit the figure was 17 per cent; on the Western Circuit 25; onthe Northern Circuit 35; in Wales 41; in Scotland 53.32 At thecentre hangings were clearly about preserving property, but as wemove away from London the gallows ceased to be dominated bythose executed for property crimes and became increasingly amatter of an eye for an eye.33 If you killed someone and werefound guilty of murder rather than manslaughter, you wouldalmost certainly hang in later eighteenth-century Britain. The

31 Using population estimates for 1760 based on Scottish Population Statisticsincluding Webster’s Analysis of Population, 1755, ed. James Gray Kyd (Edinburgh,1952), 82, and the execution data kindly provided by Rachel Bennett as set out inn. 27.

32 Scottish figure based on the years 1755–70.33 Hanging rates per 100,000 population per year for murderers also reflected this.

Unsurprisingly, given what we know about the urban dominance of indictment ratesfor murder, Middlesex had the highest rate of executions for murder (0.57). However,areas like Monmouthshire (0.54), Radnor (0.40) and Glamorgan (0.33) were all in thetop ten counties, while the ripple effect was hardly noticeable at all.


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extreme reluctance to hang property offenders found in manyregions on the periphery was not, therefore, a product of ageneral refusal to use the gallows under any circumstances. Norwas there a reluctance to make the execution of murderers morevisible by hanging them in chains. Fifteen of the 134 murderersgibbeted in England and Wales between 1752 and 1834 werefrom areas on the periphery.34

III

The lack of systematic sources from before 1750 makes italmost impossible to determine whether this highly polarizedcentre–periphery pattern in relation to the hanging ofproperty offenders had been in existence for some time.35

What is much clearer, however, is that during the crisis of the1780s, when large-scale demobilization was accompanied byrapidly rising crime rates and increasingly severe punishmentpolicies, the Bloody Code not only claimed many more lives insouth-eastern England but also made some limited inroads intopenal policy on the margins.36 The combination of poor harvestsand post-war demobilization in 1782–3 brought rapidlyincreasing indictment rates for capital property crimes inLondon, and on the Home and Norfolk circuits.37 Thiswould have led to rising execution rates for property crime evenif punishment policies had not grown harsher, but this period alsowitnessed a considerable rise in the proportion of capital convicts

34 In other words, between the introduction of the Murder Act in 1752 (whichdirected that executed murderers should be subjected to the further punishment ofeither dissection or hanging in chains) and the abolition of hanging in chains as apunishment in 1834: see TNA, Sheriffs’ Cravings, T 64/262, T 90/148–66,Sheriffs’ Assize Calendars, E 389/242–8; NLW, Crime and Punishment.

35 If Howard’s research on rural Denbighshire between 1660 and 1730 is anyguide, differences may have existed earlier. Her work suggests a minimumexecution rate for property offenders of 0.42 per 100,000, while the returns for1819 indicate that the rate for the Home Counties in 1689–1718 was 2.9. SharonHoward, Law and Disorder in Early Modern Wales: Crime and Authority in theDenbighshire Courts, c.1660–1730 (Cardiff, 2008), 133–5; Report on the CriminalLaws, 164–7. Population estimates for Wales are taken from Phyllis Deane and W.A. Cole, British Economic Growth, 1688–1959, 2nd edn (Cambridge, 1967), 103.

36 The returns for 1819 contain good data for an increasing number of areas by thefinal quarter of the eighteenth century, and Figures 1 and 2 use this data, along withinformation from the sheriffs’ expense records prior to 1780.

37 Well discussed in Douglas Hay, ‘War, Dearth and Theft in the EighteenthCentury: The Record of the English Courts’, Past and Present, no. 95 (May 1982).


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left for execution.38 This partly reflected changing governmentpolicy. In 1782 the administration announced its determinationto offer ‘no pardon’ to those found guilty of robbery and othercapital offences.39 In 1785 the Home Circuit judges — partly inresponse to a pamphlet by the clergyman (and ex-barrister)Martin Madan demanding that no capital offenders bepardoned — announced that they would be following preciselythat policy and then hanged all those they had sentenced to deathat the Essex, Kent and Sussex assizes.40

This policy of extreme severity was immediately attacked in thepress and was soon modified, but its effect, along with the rise incapital indictments, was to create the large rise in execution ratesfor property crime seen in Figure 1.41 In London and on theHome and Norfolk circuits they more than doubled, peaking inthe five years centring on 1785 at around 9 and 4 and 2 per100,000 per annum. The fourth and lowest line on Figure 1,which represents the pattern in the five counties on the westernperiphery with the best data, Cornwall, Westmorland and thethree Brecon Circuit counties, had rarely crept above 0.1 in thetwenty years before 1782 and had been 0.0 for over half a decadeup to that point. However, although the levels reached were stillextremely small compared to the other circuits in Figure 1, andalthough the change came somewhat later, this pattern waseroded in the later 1780s as overall execution rates for propertycrime in these five peripheral counties rose to a peak of 0.66

38 On the Home Circuit it rose by a third; on the Norfolk Circuit it increased by 50per cent: see King, Crime, Justice and Discretion in England, 275; Hay, ‘Hanging and theEnglish Judges’, 134.

39 Ipswich Journal, 14 Aug., 23 Nov. 1782; Simon Devereaux, ‘In Place of Death:Transportation, Penal Practices, and the English State, 1770–1830’, in CarolynStrange (ed.), Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver,1996), 57.

40 King, Crime, Justice and Discretion in England, 276–7. The Chelmsford Chronicle, 1and 8 July 1785, announced these two judges’ imminent arrival, but then noted thatMansfield was detained on business in London. Mansfield joined Eyre at the nextassizes in Kent: TNA, ASSI 31/14; Chelmsford Chronicle, 15 July 1785. They thenhanged fourteen of the seventeen sentenced to death at the last assizes on the circuitin Surrey. The home secretary clearly backed Lord Mansfield’s view that ‘the judgesought not to interpose discretionary mercy, but leave the law to take its course’:Chelmsford Chronicle, 29 July 1785; TNA, HO 13/3/167–8, 172–3, HO 47/2/222.

41 Times, 20 Sept., 20 Oct. 1785, 9 Jan. 1786. In London the year 1785 saw adoubling of the number hanged and 1787 witnessed a similar number before areturn to the levels found in the late 1770s: see Simon Devereaux, ‘Imposing theRoyal Pardon: Execution, Transportation, and Convict Resistance in London,1789’, Law and History Review, xxv (2007), 122.


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around 1789. Figure 2, which magnifies the scale and allows us tolook at the Cornwall and Brecon Circuit patterns individually,indicates that these two areas followed a very similar path. Risingindictment rates probably played a role in generating thesepatterns, but once again the policies of certain judges alsohad an influence. In the mid 1780s a Montgomeryshire judgeannounced that ‘hanging was again a necessary expedient’,and the Brecon Circuit judge George Hardinge gave repeatedwarnings of his ‘determination to execute’.42 In 1789, havingdescribed his disgust at the ‘dangerous lenity’ inherent in thefact that ‘no capital punishment had been inflicted’ for sheep-stealing ‘these twenty or thirty years’, Hardinge promptly brokethis pattern by leaving two sheep-stealers to hang.43 There wereclearly good reasons why Byron made Hardinge the model forthe ‘waggish Welsh Judge, Jefferies Hardsman’ in his poemDon Juan.44

By 1790 execution rates everywhere had fallen back to pre-crisis levels (Figure 1), but the period 1800–1 witnessed a briefresurgence of provincial execution rates. On the Brecon Circuit,where no property offenders were executed between 1792 and1796, rates briefly peaked at over 0.6, while in Cornwall and onthe Home Circuit they more than doubled, in part because of asimilar (if less drastic) change of policy to that seen in the early1780s. Faced by severe dearth, food riots and rising crime rates,Lord Kenyon announced a ‘rigorous execution of the laws’, andin Wales, Judge Hardinge was again prominent in pursuingstricter policies.45 In 1801 he hanged two Merthyr food riotersfor robbery because he believed that ‘it would be dangerous to

42 Jones, ‘Life and Death in Eighteenth-Century Wales’, 542.43 TNA, HO 47/8/15. Hardinge was correct: Report on the Criminal Laws, 254–7,

indicates that none of the twenty sheep-stealers sentenced to hang on the BreconCircuit in the years 1753–88 were executed. In England in the years 1740–80 fewerthan 10 per cent were executed (King, Crime, Justice and Discretion in England, 274),but in the mid 1780s this rose to 20 per cent and continued at this level into the 1790s(Hay, ‘Hanging and the English Judges’, 135).

44 Lord Byron, Don Juan (1819–24), canto xiii, stanza lxxxviii. A subsequent lack ofindictments for animal theft put before the Brecon Circuit in the two years followingthe capital punishment of these two sheep-stealers led Hardinge to claim that theexecutions had worked as a deterrent. However, it seems unlikely that the hillfarmers of Wales suddenly gave up their regular habit of stealing one another’ssheep ( Jones, ‘Life and Death in Eighteenth-Century Wales’, 540) and more likelythat Welsh victims, finding execution repugnant, were dissuaded from prosecuting.

45 King, Crime, Justice and Discretion in England, 277.


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intimate that, where a hope to reduce the market price is the soleobject, a rioter will be deemed innocent who pursues that objectby force’.46 However, in 1802, as food prices returned to normaland the rioting ceased, this stricter policy disappeared andhanging rates settled down at new lower levels.

In the period that followed, execution levels remainedsignificant 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 period1750–75. When contemporary newspapers reported in 1785that ‘there has not been an execution in the county of Angleseyfor upwards of thirty years’ and in 1822 that ‘an execution has notoccurred at Presteign for the last seventeen years’, they were notpedalling a convenient myth but reflecting real experience.48

Overall, therefore, between the mid eighteenth century and thelate 1820s (with the exception of brief periods in the 1780s and1800–1) the hanging of property offenders followed a verydifferent pattern on the periphery from that observed at thecentre. On the western and northern periphery of England, inmost of Wales and in Scotland outside the south-centralbelt, the Bloody Code was very rarely used in relation toproperty offenders.

IV

Explaining these huge differences in the use of the Bloody Codebetween the centre and the periphery involves peeling away asuccession of layers within the deeply discretionary process that

46 Hardinge referred to his duty to guard ‘the properties of men against that worst ofall tyrants — a rabble unlawfully assembled’, and made it clear that this was not aboutpunishing property crime or about the character of the accused but about socialcontrol in a period of widespread riots and incendiarism: ‘Mr Justice Hardinge’sAddress to the Convicts Who Were Tried at the Cardiff Sessions, 8 April 1801’, inGlyn Parry, Launched to Eternity: Crime and Punishment, 1700–1900 (Aberystwyth,2001), 26. Hardinge reduced the court to tears: see The Diaries of John Bird of Cardiff,Clerk to the First Marquess of Bute, 1790–1803, ed. Hilary M. Thomas (Cardiff, 1987),130.

47 A change described by Devereaux as ‘a retreat in the scale of execution thatconstituted a kind of dress rehearsal for the real changes of the 1820s and 1830s’:Simon Devereaux, ‘Recasting the Theatre of Execution: The Abolition of the TyburnRitual’, Past and Present, no. 202 (Feb. 2009), 174.

48 Times, 4 Oct. 1785; Cambrian, 4 May 1822. See also a thirty-year claim in Breconin A Circumstantial Account of the Evidence Produced on the Trial of Lewis Lewis theYounger (Brecon, 1789).


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was the eighteenth-century criminal law, and addressing a rangeof questions. Were fewer crimes committed on the periphery, orwere the inhabitants of those areas less inclined to prosecuteproperty offenders? If they did decide to prosecute, were theyless willing to choose a capital charge? Was the local magistracymore inclined to divert potential felony accusations at thecommittal stage? At the assizes were the grand jurors morewilling to dismiss the accusation as ‘not found’, and if theindictment was sent on to the petty jurors, were they lesswilling to convict, and/or more willing to use partial verdictsto reduce the conviction to a non-capital one? Finally, oncecapitally convicted, were property offenders in these regionsmore likely to be pardoned? Some of these stages cannot beanalysed quantitatively. For example, victims’ decisions aboutwhether or not to prosecute were very rarely recordedand magistrates’ preliminary decisions are equally hardto reconstruct.49 However, jurors’ decisions can be analysed fora sample of counties, and the pardoning process can befairly systematically surveyed through the sheriffs’ cravings,while one other potentially useful index — the parliamentaryfigures on county indictment rates — is also worthconsideration.50

Unfortunately this indictment rate data only begins in 1805and offers only one figure per county, which covers all felonies,including non-capital thefts, murder and other non-propertyoffences.51 Overall, however, these figures confirm what wewould expect from the work of J. M. Beattie and others onindividual counties.52 Indictment rates per 100,000 populationbetween 1805 and 1811 were much higher in the predominantlyurban counties and often lowest in the rural and pastoral ones ofWales and the north and west of England.53 However, these

49 King, Crime, Justice and Discretion in England, 18.50 Report on the Criminal Laws, 133.51 Non-property crimes were a small proportion of the overall figures, but the

county totals also included all minor theft tried at the quarter and borough sessionsand the many non-capital ones heard at the assizes.

52 Beattie, Crime and the Courts in England, 158–61; King, Crime, Justice andDiscretion in England, 138–45.

53 Population estimates for each county for the middle year, 1808, were calculatedusing figures for the year 1801 provided by Wrigley, ‘English County Populations inthe Later Eighteenth Century’, and David Williams, ‘A Note on the Population ofWales, 1536–1801’, Bulletin of the Board of Celtic Studies, viii (1937), combined withthe figures for 1811 in the census of that year, which can be found at Histpop: The


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differences in recorded crime rates in no way account for thesignificant differences in execution rates. In the counties ofKent, Surrey and Essex, for example, indictment rates for1805–11 were three times higher (at about 60 indictments per100,000 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 timeslower than London’s (142), yet its execution rate was thirty-twotimes lower.54 In the absence of comprehensive indictment datafor 1750–75 conclusions must be very tentative, but whileindictment rates almost certainly played a substantial role increating differences in execution rates between the centre andthe periphery in the third quarter of the eighteenth century, it isclear that this was only part of the explanation. Although thelower indictment rates found on the periphery may have beenpartly a response to the longer journeys usually necessary tofind a magistrate in upland areas, they were also evidence ofdifferent underlying attitudes. A number of historianshave argued that various areas on the periphery dealt with ahigher proportion of potentially serious crimes informally,using informal compensation or community-basedpunishments, such as ceffyl pren (a kind of ‘rough music’), toavoid taking offenders to the formal courts, and these informalapproaches in their turn may well have been founded on a deepopposition towards the capital code in relation to propertyoffenders and a consequent commitment to avoid indictmentwhenever possible.55

The data on jury decision-making at the centre and on theperiphery seen in Tables 2 and 3, which is based on fourcontrasting areas — London and Essex at the centre, andCornwall and Wales on the periphery — indicates that both

(n. 53 cont.)

Online Historical Population Reports Website, 5http://www.histpop.org/ohpr/servlet4(accessed 7 Nov. 2013).

54 To give a further example, the average indictment rate in the northern counties ofCumberland, Westmorland, Durham and Northumberland was seven times lowerthan London’s, yet its execution rate was thirty-one times lower.

55 On the strong Welsh traditions of informal punishment, compounding etc., seeSharon Howard, ‘Investigating Responses to Theft in Early Modern Wales:Communities, Thieves and Courts’, Continuity and Change, xix (2004), 413–15;Jones, Crime in Nineteenth-Century Wales, 2–13.


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http://www.histpop.org/ohpr/servlet

grand and petty jurors played a vital role in the creation of thehighly polarized execution rates seen in the Map.56 Unfortunately

TABLE 2GRAND AND PETTY JURY VERDICTS, ROBBERY, WALES AND ESSEX,

1750–1775*

Wales Essex

Grand jury verdictsNot found 31 13Found 16 103Total 47 116% not found 66 11

Petty jury verdictsNot guilty 11 35Partial verdict 0 1Guilty on full charge 5 67Total 16 103% not guilty 69 34% partial verdict 0 1% guilty on full charge 31 65

Combined grand and petty jury verdictsGuilty on full charge 5 67Total 47 116% guilty on full charge 11 58

* Sources: TNA, ASSI 31/2–11; NLW, Crime and Punishment.

TABLE 3PETTY 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 704Partial verdict 52 54 91 655 758Guilty on full charge 41 19 96 789 849Total 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

* See the sources cited in n. 56.

56 Using selected raids into the labyrinthine records of different assize circuits:TNA, ASSI 23/6–7, ASSI 31/2–11, ASSI 94/782–900; along with ‘Statistics’, The


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‘not found’ indictments were often thrown away, and only two ofthese four areas, Wales and Essex, can be used to look at grandjury decisions. The results are, however, extremely thought-provoking. On the Brecon Circuit in 1750–60, 34.2 per cent ofassizes indictments were ‘not found’ by the grand jury.57 In thesame period at the Essex assizes only 11.9 per cent of offendersavoided punishment in this way, a similar figure to thatfound by Beattie in Surrey over the period 1660–1800.58

Overall, therefore, Welsh defendants were three timesmore likely to escape a public trial because of the leniency ofthe local grand juries.59

The petty jurors had more options. If they did not want to putthe offender at risk of being hanged, they frequently resorted tothe use of a partial verdict, reducing the offence in order to avoid acapital sentence. Some capital offences, most notably horse- andsheep-stealing, were very difficult to redefine.60 The same wastrue of robbery. It was widely believed in this period that ‘robberycould not be reduced to simple theft’ and partial verdicts were

(n. 56 cont.)

Proceedings of the Old Bailey,5http://www.oldbaileyonline.org/forms/formStats.jsp4(accessed 23 Mar. 2015), tabulating verdict category where the offence category isburglary, housebreaking and theft from a specified place, between 1750 and 1775, andcounting by verdict; and NLW, Crime and Punishment, searching the database for theoffence categories of burglary, housebreaking and theft from a dwelling house,1750–75.

57 Minkes, ‘Wales and the ‘‘Bloody Code’’ ’, 693, lists a further fifty-six cases inwhich the result was not recorded. These have been excluded from the calculation.

58 TNA, ASSI 35/189–215. Among indictments for capital property crimes inSurrey in 1660–1800, 11.5 per cent were dismissed by the grand jury: see Beattie,Crime and the Courts in England, 404. The figure for all indictments for property crimewas higher, at 15.2 per cent. It is conceivable that some ‘not found’ indictments inEssex were not kept.

59 This difference may have had a long history: 28 per cent of known verdicts inDenbighshire in 1670–1730 were ‘not found’: see Howard, Law and Disorder in EarlyModern Wales, 134. In Essex between 1620 and 1680 the figure could be as low as 9 or17 per cent: see J. A. Sharpe, Crime in Seventeenth-Century England: A County Study(Cambridge, 1983), 96, 108.

60 Occasionally juries tried to redefine the nature of the stolen beast (for example,describing a horse as a mule), but these offences very rarely resulted in partial verdicts:see Beattie, Crime and the Courts in England, 428–9. Over two hundred cases of horseand sheep theft in Surrey in 1660–1800 produced no partial verdicts. In Essex the ratesof partial verdicts in 1740–1805 were 1.5 per cent for horse theft, 2.7 per cent for sheeptheft, but 33.7 per cent for housebreaking and burglary together: see King, Crime,Justice and Discretion in England, 232.


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http://www.oldbaileyonline.org/forms/formStats.jsp

very rare.61 By contrast, in housebreaking and burglary casesjuries frequently brought in verdicts such as ‘guilty of stealingonly, not guilty of breaking and entering’, and the same wastrue of stealing in the dwelling house without breaking in,which was only a capital offence if the goods stolen were worthat least 40s.62 Since these four offences — robbery, burglary,housebreaking and stealing from a dwelling house — were alsothe main forms of property crime that created large numbers ofcapital convictions in both rural and urban areas, this analysisfocuses mainly on them.63

When the data for both grand and petty jury decisions is puttogether, a quite startling difference emerges for the offence thatwas the greatest source of candidates for the gallows: robbery. AsTable 2 indicates, the Welsh jurors, both petty and grand, madeextensive efforts to prevent offenders from being found guilty ofrobbery. The Welsh grand jurors rejected an astounding 66 percent of the robbery indictments as ‘not found’, whereas theirEssex equivalents only allowed 11.2 per cent of the accused toescape in this way. Welsh petty jurors were equally generous. Overtwo-thirds of those they tried were found not guilty comparedto 34 per cent in Essex. Overall these two sets of decisionsmeant that only 11 per cent of Welsh robbers were found fullyguilty and therefore at risk of being hanged. The Essex figure wasover five times higher at 58 per cent.64

Essex and Wales may have been exceptional, but for petty jurydecision-making alone all four sample counties can be used and avery similar pattern emerges. Table 3 compares acquittals, partialverdicts and full convictions for Wales, Cornwall, Essex andLondon for the three most important types of capital case inwhich a partial verdict was a viable option — burglary,

61 Beattie, Crime and the Courts in England, 429. In Essex 1.4 per cent of robberycases in 1740–1805 ended in a partial verdict: see King, Crime, Justice and Discretion inEngland, 232.

62 Juries often brought in verdicts of ‘guilty of stealing goods to the value of 39s’ evenwhen the evidence clearly indicated that the goods were worth much more: Beattie,Crime and the Courts in England, 424.

63 Shoplifting and pickpocketing also had to involve goods above a minimum valueto be capital and were therefore targets for partial verdicts, but these charges were veryrare in rural England: Beattie, Crime and the Courts in England, 168; King, Crime,Justice and Discretion in England, 139.

64 This pattern can also be seen in cases involving burglary, the offence thatproduced more capital convictions in Essex than any other apart from robbery.Here the overall figures were 25 per cent in Wales and 50 per cent in Essex.


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housebreaking and theft from a dwelling house — and althoughsample sizes are inevitably smaller in Cornwall and Wales, thepattern is clear. In Cornwall over 56 per cent of these offenderswere given partial verdicts, compared to fewer than a third inLondon. Welsh jurors mainly used a different method: theywere much more willing to acquit fully these types of offender.While only 20 per cent of Essex offenders were fully acquitted, inWales the figure was nearly 40 per cent. As a result of thesedifferent decisions, overall fewer than a fifth of Cornishoffenders and only a quarter of Welsh ones suffered a fullcapital conviction for these offences, compared to 38 and 41per cent in London and Essex.

‘The independence of juries should not be overestimated’,Gatrell has argued, but in areas such as Wales and Cornwallhistorians may well have underestimated it.65 Grand and pettyjuries on the periphery deliberately ensured that a very muchsmaller proportion of indictments for capital property crimesresulted in a hanging. ‘The jury’, E. P. Thompson pointed out,‘attends in judgement, not only on the accused, but also upon thejustice and humanity of the Law’.66 The jurors of the peripheryclearly found the law wanting in both respects. Moreover, sinceprosecutors were drawn from much the same social groupsas jurors, historians have suggested that they would haveresembled jurors in their outlook.67 If this was the case,prosecutors on the periphery would almost certainly have beenmore reluctant to prosecute, and more reluctant to use capitalcharges, which may help to explain why indictment rates forcapital property crimes were much lower.68 It is therefore likelythat the pattern of differential erosion in conviction rates forcapital property offences, which we can definitely trace acrossjury decision-making, may well have begun much earlier inthe prosecution process.69

This pattern was also mirrored after the trial in the geography ofpardoning. Between 1760 and 1775 the proportion of capitally

65 Gatrell, Hanging Tree, 523.66 E. P. Thompson, Writing by Candlelight (London, 1980), 108.67 Hay, ‘War, Dearth and Theft in the Eighteenth Century’, 154.68 Prosecutors may also have been more willing to create an acquittal by

inadequately presenting the evidence at the assizes.69 Occasional remarks indicate potential links. ‘Hanging is at such a discount now’,

one Scottish observer remarked, ‘that the prosecutor would have got no convictionunless he had restricted’: Crowther, ‘Crime, Prosecution and Mercy’, 27.


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convicted propertyoffenders who were actually hanged was muchhigher at the centre than on the periphery.70 The pardoning ratewas lowest in London where only 52 per cent were reprieved fromthe death penalty. This may be partly due to the different ways inwhich the pardoning process worked in the metropolis. In theprovinces the key decisions were usually made by the assizesjudge, but in London the recorder reported to a committeewhich included key members of the government and the kinghimself.71 The attitudes and policy imperatives that leadingpolitical figures brought to these discussions, and the morediffuse nature of patronage networks in the metropolis, maywell have been part of the reason why pardons were moredifficult to obtain.72 However, this cannot explain thesystematic variations in pardoning rates outside London, wherecounties nearer to the capital also had much lower pardoningrates than those on the periphery. In the Home Circuit countiesof Essex, Surrey and Hertfordshire, for example, the average was70 per cent. By contrast, in thirteen counties, all of which were onthe periphery, over 85 per cent were pardoned. Denbighshire,Northumberland, Montgomeryshire, Cornwall andMonmouthshire had rates of 85–97 per cent, while inGlamorgan, Anglesey, Merioneth, Brecon, Caernarfonshire,Pembrokeshire, Cumberland and Westmorland it was 100 percent. These figures on overall pardoning rates need to betreated with care. Not all forms of property crime produced thesame reprieve rates. In Essex two-fifths of those convicted ofrobbery and a third of burglars were hanged, while only about atenth of sheep-stealers and horse thieves, and virtually none ofthose accused of privately stealing from shops or from people’s

70 Pardons and executions have been identified using the following sources: TNA,Sheriffs’ Cravings, T 64/262, T 90/148–66, Sheriffs’ Assize Calendars, E 389/242–8;Cal. Home Office Papers (George III), 1766–9; NLW, Crime and Punishment. Thanksagain to Simon Devereaux for providing us with his database of London capitalconvictions.

71 J. M. Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and theLimits of Terror (Oxford, 2001), 346–7, and on the role of the recorder, 450–2; SimonDevereaux, ‘Peel, Pardon and Punishment: The Recorder’s Report Revisited’, inDevereaux and Griffiths (eds.), Penal Practice and Culture.

72 For a detailed analysis of the prime minister’s and the home secretary’sinterventions leading to a hanging, albeit a provincial one, see Drew Gray and PeterKing, ‘The Killing of Constable Linnell: The Impact of Xenophobia and of EliteConnections on Eighteenth-Century Justice’, Family and Community History, xvi(2013).


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pockets, went to the gallows.73 This meant that the types ofcapital convict prevalent in a particular region had a big impacton overall hanging rates. However, there is clear evidence ofmajor differences in hanging rates for the same offencebetween different types of area and particularly between thecentre and the periphery.

To isolate those differences Table 4 compares pardoning ratesbetween 1760 and 1775 for each major category of capital offencein four different types of area: the city of London and Middlesex;five counties around London with low overall pardoning rates;five southern rural counties not adjacent to London; and fourteenhigh pardoning rate counties on the periphery. The pattern isclear. For almost every individual type of offence for whichthere are sufficient numbers to make meaningful comparisons,pardoning rates are much higher on the periphery than at thecentre. Only about half of those accused of robbery or burglaryin London avoided the gallows. On the periphery nearly two-thirds of robbers and seven out of every eight burglars werepardoned. Stealing from a specified place (almost always adwelling house) led to pardons in three-fifths of London casesbut always ended in a pardon on the periphery. Forgeryfollowed roughly the same pattern, as did both horse-stealingand housebreaking. Across each of the four geographicalgroupings used in Table 4, pardoning rates tended to follow thepattern one would expect from the ripple effect observed earlier.Pardoning rates for burglary, for example, were 46 per cent inLondon, 64 around London, 78 in the rural counties and 88 percent on the periphery. These results suggest that differences inoverall pardoning rates were not created primarily by the differentmixes of capital crimes in different regions but by real differencesin pardoning policies between the centre and the periphery. Sincethe process of granting a pardon often implied, as Cesare Beccariapointed out, a ‘tacit mark of disapproval’ towards the capitalcode itself, these differential pardoning rates may well beevidence of a much more widespread dislike of the capital codeon the periphery.74

73 The period covered was 1755–1815: see King, Crime, Justice and Discretion inEngland, 274.

74 Cesare Beccaria, Of Crimes and Punishments (1764), cited in Radzinowicz,History of English Criminal Law and its Administration, i, 128.


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By analysing the large differences in ‘not found’ rates, in pettyjury verdict patterns, in pardoning rates and in more generalproperty crime prosecution rates between London and majorparts of the periphery, this quantitative approach has begun touncover the key mechanisms that led to the huge differences inexecution rates for property crimes seen in the Map. Individuallythey do not entirely explain the twenty- or thirtyfold differencesbetween London and the far western periphery, but interactionsbetween these different decision-making patterns almostcertainly created a particularly potent set of mutuallyreinforcing mechanisms for mercy. If local preferences on theperiphery reduced the proportion of victims willing toprosecute for property crimes (and the proportion using capitalcharges such as housebreaking), the much smaller assizecalendars (and the lack of major capital charges within them)that resulted could generate very powerful arguments againstthe need to hang the few offenders who were capitallyconvicted. Petitions such as that sent to the Home Office by thesheriff of Cornwall pleading in mitigation ‘that the number ofoffences contained in the calendar at the late and the Springassizes was very inconsiderable’ and ‘that the crime ofhousebreaking did not occur in the late calendar except in thissingle incidence’ were not confined to the periphery, but they hadparticular force there because indictment rates were so muchlower.75 Just as high indictment rates could lead to harsherpardoning policies, as they did in the 1780s, so low indictmentrates in particular regions on the periphery tended to reduce thedesire to hang property offenders. This mechanism, combinedwith the ways in which jurors on the periphery systematicallyreduced the proportion of offenders who were fully capitallyconvicted, seems to have created a scarcity of executions forproperty crime that sensitized the public in a unique way. If weturn to more qualitative sources, to the fragmentary insightscontained in newspapers, government correspondence andmore particularly in the pardoning archives, it becomes clearthat communities on the periphery (and key officials such as thesheriffs) were particularly sensitive to, and often willing tochallenge directly, the use of capital punishment against routineproperty offenders.

75 TNA, HO 47/7/34.


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V

Although the Home Office pardoning archives of the lateeighteenth and early nineteenth centuries, and the morescattered pardoning papers that survive for the period beforethe establishment of the Home Office in 1782, only contain arelatively small number of cases from counties on the westernand north-western periphery, they include importantindications of the depth of communal hostility to the hangingof property offenders.76 This evidence on the cluster ofattitudes most prevalent on the periphery is difficult tointerpret, embedded as it often is within a range of issues raisedby each specific case. Its typicality is also hard to gauge, in partbecause underlying attitudes were often made explicit onlyin moments of crisis. However, the private nature ofthe pardoning process did occasionally create records in whichthe role of local sentiment is explicitly revealed. The attitudes ofthe inhabitants of Cornwall, for example, come over clearly in thesurviving letters relating to two offenders awaiting execution in1767. ‘My Lord’, a Cornish Member of Parliament wrote,

I beg the favour of you to intercede with His Majesty to . . . pardon the twocriminals whose petitions I . . . inclose . . . I can’t avoid interceding for’emas the Borough of Launceston which I represent, also that of Newportwhere I chuse two members both interest themselves that they should besaved. This you may imagine must make me anxious about it.77

Borough elections could be expensive to win and the Member ofParliament for Launceston continued to come under tremendouslocal pressure.78 ‘The people of this neighbourhood are now moreanxious than ever’, he wrote a week later, ‘how apt they are tofancy one has not done one’s uttermost if one fails of success in apoint they have set their hearts upon’.79

By mobilizing their Member of Parliament in this way the localinhabitants succeeded in saving the sheep-stealer Richard

76 The less complete pardoning records that survive for before 1782 are foundmixed with other correspondence in Cal. State Papers, Domestic. On the distributionof pardon requests between circuits, see Simon Devereaux, ‘The Criminal Branch ofthe Home Office, 1782–1830’, in Greg T. Smith, Allyson N. May and SimonDevereaux (eds.), Criminal Justice in the Old World and the New: Essays in Honour ofJ. M. Beattie (Toronto, 1998), 297.

77 TNA, SP 37/6/37–9. See also Cal. Home Office Papers, 1766–9, 184–8, 251.78 For the expense of elections that year, see Public Advertiser, 11 Aug. 1767. The

borough of Newport in Cornwall elected two members.79 TNA, SP 37/6/37–9.


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Williams, even though the judge had left him to hang.80 Localopinion clearly opposed his being sent to the gallows, and it waslocal opinion that won the day in this case (though not in the caseof the man capitally convicted for wrecking at the same assizes).81

Apart from one hanging in 1742, which occurred immediatelyafter the passing in 1741 of the Act that made sheep theft a capitaloffence, no other Cornish sheep-stealer had been hanged underthat Act by 1767, and none would be until the crackdown of thelater 1780s.82 Although sheep-farming was an important partof the local economy, many influential Cornish inhabitantsclearly disagreed with the use of capital punishment against thiscrime.83 When a Cornish sheep-stealer was again left to hang bythe assize judge in 1786, ‘the general wishes of his neighbourhoodto prevent his execution’ were vehemently expressed.84 Innormal times (though not in the crisis of the 1780s) localopposition effectively turned the Act of 1741 into a dead letter,as it did in Cumberland, and in most of the sheep-rearing countiesof Wales, where there were no hangings of sheep thieves in theAct’s first forty years.85 In relation to the Bloody Code more

80 Cal. Home Office Papers, 1766–9, 256. The assize records for the summer assizesof 1767 indicate that two offenders were left to hang: TNA, ASSI 23/7. However, thesubsequent assize records indicate that Williams was later transported.

81 Gazetteer and New Daily Advertiser, 4 Sept. 1767. There were limits to the impactof local opinion, and William Pearce, who had stolen from a shipwreck, was stillhanged despite the fact that he was over 70. ‘The country people’, being ‘toonumerous to be repelled’, had pillaged the stranded vessel and, ‘as there were manycommon people in court’, the judge ‘took the opportunity of inveighing against sosavage a crime, and of declaring publicly that no importunitieswhatever’ would inducehim to reprieve. For the government’s backing of the hanging, see TNA, SP 37/6/41and 45. See also John G. Rule, ‘Wrecking and Coastal Plunder’, in Hay et al. (eds.),Albion’s Fatal Tree, 168, 187. Even on the gallows Pearce maintained that he wasinnocent: Public Advertiser, 22 Oct. 1767.

82 Radzinowicz, History of English Criminal Law and its Administration, i, 675–8;TNA, ASSI 23/6–7; Report on the Criminal Laws, 176–7.

83 On average nearly one sheep thief a year was convicted in Cornwall in 1760–85:TNA, ASSI 23/6–7 (checked against notifications of pardons in TNA, SP 44/87–92, E389/243–5).

84 TNA, HO 47/4/29.85 In March 1786 Judge Eyre, fresh from his policy of executing everyone on the

Home Circuit in the previous year, came down on the Western Circuit and broke thepattern at the Cornwall assizes. Seven sheep-stealers were tried: he left two to hang.TNA, ASSI 23/8, HO 47/4/29. The pattern was also broken in 1786 in Cumberland:see TNA, E 389/247, T 90/165; NLW, Crime and Punishment, searching the databasefor the offence category of sheep-stealing for the years 1730–1800. The inhabitants ofthese areas were not averse to finding sheep-stealers guilty; the judges sometimesthought that Welsh jurors were too willing, but they did not usually want themhanged: see TNA, HO 47/6/4, HO 47/16/28.


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generally, outside the tiny minority of cases in which thegovernment was determined to make an example, andexcluding brief periods of high tension such as the 1780s, localopinion in areas like Wales and Cornwall seems to have played aconsiderable role in shaping everyday policies towards theexecution of property offenders. This influence almost certainlygrew in the early nineteenth century, encouraged by the moregeneral growth of opposition towards the capital code.

Similar evidence about potent local opposition to executionsfor burglary can be seen in 1813 when William Morgan was left tohang at Cardiff against the explicit recommendation of the jury.The ‘public mind’ was described as having ‘very hostile feelings’about ‘a man suffering death’ for this offence, and, ‘strengthenedby the decided voice of his own neighbourhood for saving his life’,a large-scale petition by Cardiff ’s inhabitants was eventuallysuccessful. Even though the judges ‘thought it necessary . . . tomake an example’, the Glamorgan jurors and petitioners won theday, their key counter-arguments being that the condemned manhimself was a ‘victim’ of this policy, and that

the execution of the sentence would undoubtedly operate unfavourably inthis country by preventing prosecutions in future . . . and the frequency ofsuch offences is certainly likely to be increased . . . by resorting to suchextremes as will deter humane sufferers from arraigning futureoffenders.86

In Caernarfon in 1822 it was reported that ‘in a county such asthis, not used to crime . . . the feelings of the people revolt at theidea’ of a highway robber being condemned to hang, since therehad been ‘no execution in Caernarvon for the past twentyyears’.87 In the same county in the following year a reprieve wasobtained, against the judge’s wishes, for a man left for executionfor stealing from a relative’s house after petitions were receivedfrom all levels of the society including many ‘country people at aloss for want of education’. ‘Public humanity does not permit thatjudgement to be executed’, it was argued, while it was alsostressed that in places such as this, where an execution forproperty crime very seldom occurred, ‘everyone connected withthe country’ was desperately keen for the county to be ‘spared an

86 TNA, HO 47/52/27. There are echoes here of the more general arguments putforward a few years later during the reform debate.

87 Gatrell, Hanging Tree, 422; TNA, HO 47/63/9.


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execution’.88 In 1803 Carmarthen’s inhabitants were equallycritical when the judge left a horse thief to hang, arguing thatthey did ‘not think the convict . . . judiciously selected as anobject of public example’.89 Petitions sometimes argued that anexecution would blot ‘the county’s reputation’, and on theperiphery, where very few property offenders ever reached thegallows and mercy was the rule, it is clear that hangings oftencreated a sense among the local community both that theircounty’s reputation was on the line, and that the convictconcerned was in a real sense the victim, thus putting thejudges increasingly on the defensive.90

There is also considerable evidence that county sheriffs, whowere responsible for organizing hangings and thereforeexperienced them much more directly, were especially prone tooppose the capital punishment system in areas on the periphery.In every county these officials were occasionally active incollecting signatures for pardon, but in both Cornwall andWales county sheriffs seem to have been particularly averse toexecuting property offenders. 91 ‘I cannot endure the thought ofhaving a human being executed during the time I am in office’, thesheriff of Caernarfon wrote in relation to an offender left to hangfor robbery.92 Some sheriffs went further and illegally delayedexecutions. In 1784, for example, a Cornish undersheriffwas threatened with prosecution for neglecting to execute ahousebreaker from Truro, leaving both the judge and LordFalmouth quietly recommending to the Home Office that aconditional pardon would now be the best solution, eventhough ‘the man richly deserved hanging’.93

Six years later the Home Office took an even dimmer view ofthe sheriff of Carmarthen’s decision to obstruct the execution of ahorse thief specifically left to hang by the judge.94 Acting with thebacking of the ‘first nobility, gentry and freeholders ofCarmarthen’, and having ‘a conviction . . . that he is by no

88 TNA, HO 47/64/14; Gatrell, Hanging Tree, 422–3.89 TNA, HO 47/36/4.90 Gatrell, Hanging Tree, 58.91 TNA, HO 47/7/31, HO 47/53/20, HO 47/64/14.92 TNA, HO 47/63/9; Gatrell, Hanging Tree, 422.93 TNA, HO 47/2/10. In 1798 once again a Cornish execution was delayed by the

sheriff — a delay which the Home Office described as ‘an unwarrantable act’ thatcould lead to disciplinary measures: TNA, HO 47/22/34.

94 The following account is based on TNA, HO 47/36/4.


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means a fit object for example’, the sheriff chose to ignore theexpiration of the initial respite, when the convict shouldautomatically have been hanged.95 Aware that a change ofministry was imminent, he took matters into his own hands.‘I have on my own authority’, he admitted, ‘respited him’, hisexcuse mainly being ‘a legal doubt . . . as to the power of asheriff in executing a criminal after the day first appointed forhis execution has elapsed’. The Home Office clearly regardedhim as ‘guilty of a high misdemeanour’, and in ‘great contemptof justice’, and when the new home secretary also refused topardon the convict, he was eventually forced to hang theoffender about a month after he should legally have done so.

Radnor’s officials went a step further in 1814, conniving in theescape of an offender in gaol awaiting execution. Sarah Chandlerhad been convicted of forging banknotes, and despite petitionsfrom the county’s sheriff and magistrates, as well as from manyordinary citizens, Judge Hardinge was adamant that she must beexecuted. Her case excited great sympathy, however. She had ababy still suckling, seven children under 10 and a cruel husbandwho refused to support them. Judge Hardinge, angered by ‘theobstinate and frantic zeal of the country for this wicked creature’slife’ and the connivance of the magistrates with the ‘sagacity of themob’, stood firm, but this clash between the mood of the countryand an obstinate judge was resolved when Sarah broke out of gaoland disappeared. The judge was clear who was responsible.‘When she escaped the cell was not locked’, he pointedout, because the sheriff had failed to provide locks and bolts. The‘magistracy itself’, he concluded, was guilty of ‘culpable negligenceif not connivance’. She was under the ‘wing and shield ofthe country’ and her escape, he claimed, was no accident.96 TheHome Office was not always powerless in such situations, but thedifficulties they experienced in extracting sufficient information,and their desire to keep such matters out of the public eye, oftenforced them tocompromise. Local elites ineverypartof thecountryinvolved themselves deeply in the pardoning process, but at

95 The sheriff also wrote that he was determined that ‘nothing within my line of dutyeither as chief executive of the county or as a man of humanity’ would be ‘left un-attempted’: TNA, HO 47/36/4.

96 For another Welsh offender awaiting execution for sheep theft who escaped fromgaol in 1801 owing in part to the neglect of the gaoler and lack of proper locks, see DewiDavies, Law and Discord in Breconshire, 1750–1880 (Aberystwyth, n.d.), 58–9.


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this stage of research it appears that it was only on the peripherythat local officials were fairly regularly prepared to delay or directlyconnive against the execution of property offenders.97

On the periphery this especially strong reluctance to hangproperty offenders extended right across the social scale. Thepetty jurors, whose decisions prevented a large proportion ofcapital property offenders from being sentenced to hang, weredrawn from the middling sort and often from the ranksof minor freeholders and farmers.98 They rarely recordedthe reasons behind their decisions, but occasionally newspaperreports give some clues.99 One Caernarfon juror told acorrespondent surprised by an acquittal that ‘neither my fellowjurymen nor myself had the least doubt of the prisoner’s guilt: butwe were unwilling to bring in a verdict of guilty because we wereaware the prisoner would have been punished with death, apenalty we conceived to be too severe for the offence’.100 Themerciful Welsh jury was something of a stereotype. Arguingthat ‘the Pembrokeshire personality’ had ‘a deep aversion tohanging’, Audrey Philpin quotes the foreman of a local jurywho, when asked for the verdict, announced, ‘not guilty, myLord, but he must not do it again’.101

Since the labouring poor rarely played any part in judicialdecision-making, their attitudes are even more difficult to gauge,but some sense of their antipathy towards the hanging of propertyoffenders can be inferred from their unwillingness to take on the

97 Further research is needed, but a fairly extensive search of pardoning cases notarising from the periphery has failed to find similar cases in which sheriffs deliberatelysubverted the system.

98 Welsh jurors in particular were drawn from a lower social class than Englishones: see Mark Ellis Jones, ‘ ‘‘An Invidious Attempt to Accelerate the Extinction of ourLanguage’’: The Abolition of the Court of Great Sessions and the Welsh Language’,Welsh History Review, xix (1998), 250. On the occupation and wealth background ofEnglish jurors, see P. J. R. King, ‘ ‘‘Illiterate Plebeians, Easily Misled’’: JuryComposition, Experience and Behaviour in Essex, 1735–1815’, and Douglas Hay,‘The Class Composition of the Palladium of Liberty: Trial Jurors in the EighteenthCentury’, both in J. S. Cockburn and Thomas A. Green (eds.), Twelve Good Men andTrue: The Criminal Trial Jury in England, 1200–1800 (Princeton, 1988).

99 Jurors were not supposed to talk about their deliberations in public.100 Mary Aris, Julia Latham and Jo Pott (eds.), Nineteenth-Century Crime and Protest

(Caernarfon, 1987), 16–18.101 Audrey Philpin, ‘Crime and Protest, 1815–1974’, in David W. Howell (ed.),

Pembrokeshire County History, iv: Modern Pembrokeshire, 1815–1974 (Haverfordwest,1993). For a letter written in Wales in 1784 recording that the writer did not thinkpeople should be hanged for sheep-stealing, see letter from Walter Churchey: NLW,ARCH/MSS Ref. 1130; see also TNA, SP 44/87/237.


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duty of hangman. It was rarely easy to find a hangman in anyregion, but there is evidence that on the periphery this oftenproved practically impossible. In 1769 Flintshire’s sheriff, inpetitioning the Treasury concerning the costs of executing a localburglar, wrote of his ‘great difficulty and expense . . . in journeys toLiverpool and Shrewsbury to hire an executioner; the convictbeing a native of Wales it was impossible to procure any of thatcountry to undertake the execution’.102 Similar problems werereported by the sheriffs of Cumberland and Westmorland. Ontwo separate occasions the Cumberland sheriff was unable torecruit anyone to hang an offender and had to pay for someoneto travel up from London, while in the 1790s the sheriff ofWestmorland twice paid to bring an executioner in fromScotland.103 Locals might also refuse to supply wood to makethe gallows, and in both Merioneth and Anglesey localcarpenters refused to erect a gallows, so that men had to bebrought in from England.104 The direct impact of the labouringpoor on capital punishment rituals could also be significant. Riotsoccasionally occurred in response to capital convictions forproperty crime that were perceived as likely to result in ahanging, and in Cornwall in the mid eighteenth century the chiefjustice was forced to abandon his plans to gibbet an offender afterbeing informed that ‘his friends would cut him down’, whichwould give the mob an opportunity for a ‘new triumph’.105

A broad spectrum of social groups on the periphery thereforeseems to have adhered to a very different set of cultural norms andimperatives in relation to the hanging of property offenders. Alllevels of society were involved, from the ‘mob’ to the magistrates. If

102 Cambrian, 21 Apr. 1821, recalling events fifty years earlier in which a Shropshireman hired to do the hanging had absconded on the way to Flint and a fellow convictwas eventually persuaded to do the task on receipt of 12 guineas. Half a century laterthis was still the case when a person from England acted as executioner, ‘it beingimpossible to find anyone in Wales to execute the office’. However, the convict herehad committed murder: Cambrian, 28 Aug. 1830.

103 In 1809–13: TNA, E 389/252–3, T 90/169. One of these hangings cost thesheriff £31, a year’s wages for a labourer: TNA, T 90/167.

104 Parry, Launched to Eternity, 38 (a case in the 1870s); Margaret Hughes, Crimeand Punishment in Beaumaris (Llanrwst, 2006), 71–3. However, some of this evidencecomes from outside the period focused on here and involves the hanging of non-property offenders.

105 Hay, ‘Property, Authority and the Criminal Law’, 50. For a northern examplerelating to two highway robbers in 1790, see David Bentley, Capital Punishment inNorthern England, 1750–1900 (Sheffield, 2008), 20.


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the Bloody Code was often a dead letter on the periphery, it wasprimarily because the citizens of those areas chose to make it so.They remade justice from the margins in a unique and relativelymerciful way.106 During the early nineteenth-century debatesabout the capital code, those who advocated their repealmade virtually no reference to the patterns of executionavoidance we have traced on the periphery, but some of theirgeneral observations remain very appropriate as a description ofwhat was happening there.107 ‘If the community is dissatisfied withthe law’, Basil Montagu wrote, ‘the law’s strength is relaxed; theinjured parties and public withhold their assistance; the ministersof justice endeavour by different expedients to defeat itsoperation’.108

VI

The much higher degree of communal dissatisfaction with theBloody Code which lay behind its successful erosion on theperiphery is easier to establish than to explain. Before brieflyspeculating about the broader social and economic differencesthat may have played a role, two more easily identifiable factors— the unique nature of the administration of justice in Wales, andthe impact of linguistic differences — require discussion. Twoaspects of the administration of the Welsh Great Sessionsprobably made it easier for the local population to influence thejudges. First, the Welsh judges themselves were much lesser figuresthan their equivalents in England. English judges were full-time,and when not on circuit they sat in the prestigious Westminstercourts. Welsh judges were part-timers. They had an ‘amphibiousprofessional existence . . . being judges for six weeks and practisingor retired barristers’ for the rest of the year.109 They were

106 For the ways in which justice was remade more generally at the local level, seePeter King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins(Cambridge, 2006), ch. 1.

107 Although witnesses before the select committee on the criminal laws in 1819were almost all metropolitan in orientation, one did report after a recent tour of the‘western and southern counties’ that everyone he met thought hanging ‘ought to beinflicted only in cases of murder’: Report from the Select Committee on the Criminal Laws,102.

108 Basil Montagu, ‘Some Inquiries Respecting the Punishment of Death forCrimes without Violence’, Pamphleteer, xii (1818), 295.

109 Report into the Practice and Proceedings of the Courts of Common Law, P.P., 1829(46), ix, 454.


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appointed by ministerial patronage rather than by the lordchancellor, and had often obtained their posts because they wereMembers of Parliament or had parliamentary influence;110 JudgeHardinge, for example, was the Member of Parliament for therotten borough of Old Sarum.111 Most of the Welsh judgestherefore lacked both the natural authority, and the socialdistance from those approaching them for pardons, that theEnglish judges enjoyed.112 Secondly, unlike the English judges,who frequently changed circuits, the Welsh judges wereappointed to one circuit only and therefore went back to thesame few counties each year. Some served their circuit for manydecades: Judge Moysey, for instance, had already served fortyyears by 1817.113 Their appointments were for life, and theytherefore developed long-term relationships with key localfigures, from some of whom they might receive considerablepatronage.114 As a result, to quote the parliamentary report of1817 on the administration of justice in Wales, ‘by coming oftenamongst them’ the judges were able to become ‘more perfectlyconversant with the manners and feelings of the Welsh’.115

Among the local knowledge they would have accumulated wouldhave been an acute sense of the aversion the Welsh had for thehanging of property offenders, which may in part explain thevery high pardoning rates found in Wales.

The potential impact of linguistic differences was alsoparticularly great in Wales, though it may well have played anequally important role elsewhere on the periphery. In Wales the

110 Ibid., 453; Report of the Select Committee on the Administration of Justice in Wales,P.P., 1817 (461), v, 113–14.

111 ‘George Hardinge (1743–1816), of Pyrton, Wilts.’, The History of Parliament,5http://www.historyofparliamentonline.org4(accessed 7 Nov. 2013).

112 The History of the Great Sessions in Wales, 1542–1830, together with the Lives of theWelsh Judges, and Annotated Lists of the Chamberlains and Chancellors, Attorney Generals,and Prothonotaries of the Four Circuits of Chester and Wales Compiled from the Patent Rollsand Welsh Records in the Record Office, ed. W. R. Williams (Brecon, 1899), 23–4; GlynParry, A Guide to the Records of Great Sessions in Wales (Aberystwyth, 1995), p. xxv;Report into the Practice and Proceedings of the Courts of Common Law, 454. Before 1773the Welsh judges could also appoint deputies: see Report of the Select Committee on theAdministration of Justice in Wales, 9.

113 Report of the Select Committee on the Administration of Justice in Wales, 14, 68;Report into the Practice and Proceedings of the Courts of Common Law, 419.

114 For a Welsh judge holding another lucrative local office under LordCholmondeley, see Report of the Select Committee on the Administration of Justice inWales, 14.

115 Ibid., 42.


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http://www.historyofparliamentonline.org

majority of the population were Welsh-speaking, but theproceedings of the Great Sessions were primarily held in English,a language which many of those attending court as prosecutors,witnesses and jurors did not speak or fully understand.116 Sincefew of the judges appointed to the Great Sessions were Welsh-speaking, and since even those among the Welsh-speakingwitnesses who could also speak English often refused to do so,the court was plagued by language problems.117 As GeraintJenkins has pointed out, ‘many monoglot Welshmen who servedon juries were unable to make much sense of the proceedings . . .and were therefore prone to favour and protect their neighbours’,and this link between the relative leniency of Welsh jurors and thefact that the hearings were not conducted in their native languagewas also made by some judges of the Great Sessions.118 However,the systematic refusal of Welsh jurors to convict on the full chargeslaid against those accused of serious property offences such asrobbery and burglary was not just a function of their inability tounderstand the evidence. The language issue, Minkes hasargued, would also have emphasized a more important point: thegenerally alien nature of the legal system itself.119

The same would have almost certainly have been true inthe north-west Highlands of Scotland, where Gaelic-speakersremained very widespread, and to a lesser extent in Cornwall,even though Cornish speaking was dying out by the endof the eighteenth century.120 The extremely close geographical

116 As late as the 1891 census 54 per cent spoke Welsh: Paul O’Leary,‘Accommodation and Resistance: A Comparison of Cultural Identities in Irelandand Wales, 1880–1914’, in Connolly (ed.), Kingdoms United?, 124. Witnesses givingevidence in Welsh were examined by means of an interpreter: William Russell Oldnall,The Practice of the Court of Great Sessions on the Carmarthen Circuit, Much of Which IsCommon to All the Courts of Great Sessions in Wales, also the Mode of Levying a Fine and ofSuffering a Recovery on the Carmarthen Circuit: To Which Are Added the Rules of thatCircuit, and Some Precedents of Practical Forms (London, 1814), 24; Report of the SelectCommittee on the Administration of Justice in Wales, 6.

117 Howard, ‘Investigating Responses to Theft in Early Modern Wales’, 414; Jones,‘An Invidious Attempt to Accelerate the Extinction of our Language’, 232; Report intothe Practice and Proceedings of the Courts of Common Law, 443. Williams, History of theGreat Sessions in Wales, 19, suggests that fewer than 15 per cent were born in Wales andnot all of these would have been native speakers.

118 Geraint H. Jenkins, The Foundations of Modern Wales, 1642–1780 (Oxford,1987), 334; Parry, Guide to the Records of Great Sessions in Wales, p. xxxi; Jones,Crime in Nineteenth-Century Wales, 221–2.

119 Minkes, ‘Wales and the ‘‘Bloody Code’’ ’, 675.120 Philip Payton, The Making of Modern Cornwall: Historical Experience and the

Persistence of ‘Difference’ (Redruth, 1992), 92; S. Dodd, ‘Language and Culture in


(cont. on p. 197)

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correlation between the peripheral areas with very loweighteenth-century execution rates and the parts of Britain thatstill maintained separate Celtic language traditions is striking.121

They were often coterminous. Devon, with no such tradition, didnot have low rates; Cornwall did. Moreover, two of the threecounties in Wales with less radically low execution rates wereamong the few areas where Welsh speaking was also lessprevalent.122 Unfortunately very limited evidence has survivedfor eighteenth-century Ireland, the other major Celtic regionthat could be used for comparison. However, S. J. Connolly’swork on the low numbers executed in Ireland before the 1790s,and on the incredibly high acquittal rates found in areas like Cork,suggests significant parallels. Here, too, execution rates were upto twenty times lower in Cork than in Dublin, and counties suchas Fermanagh proudly claimed to have no executions formore than two decades, leading Connolly to conclude that‘the frequent use of the gallows was very much a feature ofEnglish society rather than of any of the three CelticDominions’.123 It would be easy, given these parallelgeographies, simply to assert that the Celtic lands were bynature averse to capital punishment in cases not involvingviolence, but this is far too simplistic. While it is true that insuch areas, and particularly in Wales, legal traditions tended toemphasize restorative rather than punitive justice in cases ofproperty crime, many other forces were at work.124

(n. 120 cont.)

the Far South-West’, in Michael Ashley Havinden, Jean Queniart and Jeffrey Stanyer(eds.), Centre et peripherie: Bretagne, Cornouailles/Devon. Etude comparee / Centre andPeriphery: A Comparative Study of Brittany and Cornwall & Devon Compared (Exeter,1991), 228.

121 John Langton, ‘Languages and Dialects’, in John Langton and R. J. Morris(eds.), Atlas of Industrializing Britain, 1780–1914 (London, 1986), 203; Steven G.Ellis, ‘Languages, 1500–1800’, in Barry W. Cunliffe et al. (eds.), The PenguinAtlas of British and Irish History: From Earliest Times to the Present Day (London,2001), 152–3.

122 Radnor and Carmarthenshire. For the importance of English speaking in thesecounties, see the map of the principal language zones in Wales in 1750 in Jenkins,Foundations of Modern Wales, 398.

123 S. J. Connolly, ‘Unnatural Death in Four Nations: Contrasts andComparisons’, in Connolly (ed.), Kingdoms United?, 210–11; S. J. Connolly,‘Albion’s Fatal Twigs: Justice and Law in the Eighteenth Century’, in RosalindMitchison and Peter Roebuck (eds.), Economy and Society in Scotland and Ireland,1500–1939 (Edinburgh, 1988).

124 Howard, ‘Investigating Responses to Theft in Early Modern Wales’, 414.


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In England and Wales, the core area studied here, severalbroader social and economic factors also correlate well withvery low execution rates. The areas with extremely low rateswere predominantly upland pastoral regions. The areas ofsouthern and eastern England with a high hanging rate weredominated by lowland arable agriculture or mixed farming.125

While the simple juxtaposition of two commonly used sets ofconjunctions, upland–pastoral–disorderly and lowland–arable–deferential, is clearly far too simplistic, these configurationsmay well have influenced approaches to capital punishment.The precise vectors through which this occurred are difficult tounravel and cannot be investigated here, but different levelsof social inequality may well have been one link. As LeighShaw-Taylor’s recent work has shown, mapping the ratio ofmale farmworkers to farmers (a rough proxy for levels of ruralsocial inequality) produces a not dissimilar pattern to theexecution rates found in the Map, the ratios being lowest inwestern and northern England and highest in the south-east.126

Moreover, as Sharon Howard has pointed out, ratios of labourersto farmers in most of Wales were also very much lower than inarable England, where communities were more likely to bedivided between small groups of well-off farmers and manylandless labourers, for whom, as Crabbe succinctly put it, ‘thewealth around them makes them doubly poor’.127

Commentators frequently remarked on the relative absence ofinequality on the periphery. As a witness before the selectcommittee on criminal commitments of 1826 pointed out, ‘inCumberland both the farmers and the agricultural labourersare content with mean and scanty food’. The farmers’standards of living excited ‘no envy or discontent’ among thelabourers ‘because in point of fact it is very little better or more

125 Mark Overton, ‘Agriculture’, in Langton and Morris (eds.), Atlas ofIndustrializing Britain, 35.

126 Leigh Shaw-Taylor, ‘The Rise of Agrarian Capitalism and the Decline of FamilyFarming in England’, Economic History Review, lxv (2012), 50.

127 Sharon Howard, ‘Crime, Communities and Authority in Early Modern Wales:Denbighshire, 1660–1730’ (Univ. of Wales Ph.D. thesis, 2003), 29; Crabbe cited inChristopher Hill, Liberty against the Law: Some Seventeenth-Century Controversies(London, 1996), 19. Leigh Shaw-Taylor’s forthcoming work also establishes thatthe Welsh pattern is similar to that of northern and western England. We aregrateful to Dr Shaw-Taylor for allowing us to see his unpublished work.


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luxurious’.128 A few years later a commentator on policing in therural districts of the northern counties stressed the high levels of‘mutual dependence and attachment’ in such areas and pointedout that

in the thinly populated and mountainous tracts, the soil is parcelled outamongst petty proprietors between whom and their agriculturaldependants there is small distinction . . . Each village forms a littlecommunity approaching more nearly to a state of perfect equality thancan readily be conceived by those who have formed their opinions . . . fromobservations made in the more southern counties.129

Did relatively low levels of social inequality mean that pastoralcommunities on the periphery were less willing to prosecute inthe major courts? The survival and growth of many informalsanctioning systems in Wales in this period certainly indicatethat this is a possibility. Moreover, if Douglas Hay is correct insuggesting that ‘the violence of the law, measured by prosecutionsand punishments, was largely determined by the need to containthe effects, direct and indirect, of substantial social inequality’,then the propensity to prosecute and the willingness to hang maywell have been lower in areas like Wales, Cumberland andCornwall than they were in the south and east of Englandbecause levels of inequality were also much smaller.130

Detailed research on individual counties and areas is neededbefore we can unravel the deeper forces that lay behind the verylow execution rates for property crime found on the eighteenth-century periphery. However, beneath the higher pardoning ratesand the many levels of mitigating jury verdicts (and mercifulvictims’ decisions) that were the immediate causes, a group ofinterrelated but less easily quantified factors clearly shaped thementalities that undermined the power of the Bloody Codethroughout the periphery.

VII

This new research raises several broader issues that can only bebriefly discussed here. For example, if the geography of hangings

128 Report from the Select Committee on Criminal Commitments and Convictions, P.P.,1826–7 (534), vi, 56.

129 ‘On a Rural Constabulary Force by One of the People’, TNA, HO 73/4.130 Douglas Hay, ‘Time, Inequality and Law’s Violence’, in Austin Sarat and

Thomas R. Kearns (eds.), Law’s Violence (Ann Arbor, 1992), 151. On the fact that‘differences between social groups were never as clearly marked’ in Cornwall aselsewhere, see Payton, Making of Modern Cornwall, 88.


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was so uneven, and if property offenders were virtually neverexecuted in many areas on the periphery, this raises interestingquestions about the role that historians of criminal justice havegiven to the Bloody Code in maintaining the hegemony of theeighteenth-century elite, a role that is also advanced as oneof the main reasons why they wanted to leave the codeunrepealed.131 After describing the capital statutes as ‘the legalinstruments which enforced the division of property by terror’,Douglas Hay later points out that

the idea of justice was always dangerous . . . it was easy to claim equaljustice for murderers of all classes, where a universal moral sanction waslikely to be found . . . The trick was to extend the communal sanction to acriminal law that was nine-tenths concerned with upholding a radicaldivision of property.132

In relation to capital punishment at least, it is difficult not toconclude, in the light of the evidence produced here, that formuch of the eighteenth century the elite almost completelyfailed to pull off this trick in most of Wales, Scotland and thewestern periphery of England.

In this context, moreover, Gatrell’s statement that ‘the sanctionof the gallows and the rhetoric of the death sentence were central toall relations of authority in Georgian England’ also seemsproblematic.133 It might be argued, of course, that the rhetoricalone was largely sufficient and that very few actual hangingswere necessary in order to achieve this effect; but the completeabsence of hangings for property crime across long periods inmany counties in western Wales, Highland Scotland and the farwest and north-west of England, which were by no meansespecially orderly places, suggests that in significant parts ofBritain the penal system functioned equally effectively in its keyeveryday function, the protection of property, without the use ofthe death penalty. This is not to say that capital punishment wasnot vitally important to the governing elite when they facedextreme threats to the social and political order, such as theGordon riots, the extensive food riots of 1800–1 or the Jacobiterisings. Moreover, as Hay has shown, the gallows could also beused strategically in the middle of a period of rioting to deterfurther disturbances by threatening to hang those already

131 Hay, ‘Property, Authority and the Criminal Law’, 55–63.132 Ibid., 21, 35.133 Gatrell, Hanging Tree, 32.


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arrested if their fellow rioters did not desist.134 In such extremecontexts the widespreaduseof thegallows, andeven the threat of it,were a vital part of the armoury of the elite. However, the everydayuse of the Bloody Code to bolster the hegemony of the ruling eliteby schooling the people in ‘the lessons of Justice, Mercy andTerror’135 must surely have been constrained by the fact that incertain parts of the periphery mercy was almost universally therule. Perhaps in areas like Wales and Cornwall the elite were ableto reinforce their reputations as the natural leaders of thecommunity by using their roles as sheriffs, magistrates, Membersof Parliament and so forth to engage deeply and effectively in thevarious processes that prevented property offenders from beinghanged. However, the potential created by their private access to‘the levers of fear and mercy’136 would have been very seriouslyconstrained if local opinion almost always prevented them fromusing the former. If significant parts of eighteenth-century Britainsuccessfully avoidedusing the terrorof thegallowsagainst propertyoffenders for long periods, the role of capital punishmentin English, Scottish and Welsh social relations may have beenless central than we have assumed. Even if we accept thatthe reinforcement of hegemony involved using a changingcombination of terror and mercy at different times and places,we are still left with the question of how, for extended periods,the elite maintained their authority in large areas of Britainthrough the use of mercy alone.

Historians’ accounts of the nature and timing of the growth ofopposition to the capital statutes may also need considerablemodification. A deep reluctance to use the Bloody Code wasalready well in place on the periphery before Beccaria’s Crimesand Punishments was published, and before influential utilitarianand evangelical advocates of reform such as Bentham and Buxtonwere even born.137 There were clearly more strands to the process

134 Hay, ‘Property, Authority and the Criminal Law’, 49.135 Ibid., 62–3.136 Ibid., 51.137 And before Blackstone’s brief but influential passage in his Commentaries, on

which, see Radzinowicz, History of English Criminal Law and its Administration, i, 3,276–86, 345–6. Both books were published in the 1760s. On Beccaria, seeRadzinowicz, History of English Criminal Law and its Administration, i, 277–83. OnBentham, see Radzinowicz, History of English Criminal Law and its Administration, i,chs. 11–12. On Buxton, see Richard R. Follett, Evangelicalism, Penal Theory and thePolitics of Criminal Law Reform in England, 1808–1830 (Basingstoke, 2001), 99–105.


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of opinion formation in relation to capital punishment than mosthistorians have recognized. If the notion that the hanging ofproperty offenders was wrong and should be avoided firstbecame dominant in precisely those areas, such as the farwestern and northern uplands of Britain, where literacy waslowest and where urbanization and more deeply market-orientated relationships had yet to gather much momentum,the relatively straightforward relationship many have positedbetween the emergence of opposition to the capital code andvarious aspects of the journey to modernity, such as theinfluence of the Enlightenment, will need to be considerablymodified. Gatrell’s emphasis on the ‘sudden revolution’represented by the ‘dramatic’ and rapid ‘retreat from hangingin the 1830s’ may also need revisiting.138 If, as he suggests, ‘itwas not obvious to most people before the 1830s that capitalpunishment for relatively trivial crimes was an inhumane way ofdealing with crime’, how can we explain the strong tradition ofwide-scale reluctance to execute property offenders that hadalready been in place for nearly a century on the periphery?139

Finally, the research presented here also offers new insights intothe nature and reach of the central state in the eighteenth century.For example, by showing that one of the most important weaponsin the armoury of the state’s social policy was used much moreintensively in England than it was in Scotland, in Wales or (mostprobably) in Ireland, this article has added further weight toJoanna Innes’s suggestion that the tendency of eighteenth-century historians to focus on English governance has created afalse impression of the homogeneity of the British state.140 Ineighteenth-century Scotland, outside periods of acute politicalcrisis, the use of the capital code against property offenders wasminimal compared to its widespread use in England. This waspartly because Scotland, which had a different legal system, hadlargely resisted importing new capital offences from England.141

138 Gatrell, Hanging Tree, 9–10.139 Ibid., 241.140 Innes, ‘What Would a ‘‘Four Nations’’ Approach to the Study of Eighteenth-

Century British Social Policy Entail?’, 199.141 Crowther, ‘Crime, Prosecution and Mercy’, 19. On the legislative process for

Scotland, see Joanna Innes, ‘Legislating for Three Kingdoms: How the WestminsterParliament Legislated for England, Scotland and Ireland, 1707–1830’, in JulianHoppit (ed.), Parliaments, Nations and Identities in Britain and Ireland, 1660–1850(Manchester, 2003).


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However, since Wales had the same legal code as England, the factthat Welsh policies towards the hanging of property offenderswere also much more merciful than those found in Englandsuggests that differences in statute law were not necessarily thekey factor, although administrative differences such as the lowerstatus of the Welsh judges may have played a role. It has beenargued that the case for distinguishing Welsh from Englishpolicies is much weaker than that for distinguishing Scottishfrom English, but in relation to the Bloody Code this does notseem to have been the case.142 Although Scotland had a differentlegal system from that of England and Wales, the actual policies itpursued in relation to capital punishment had much in commonwith the latter and very little with the former.

Since an extreme reluctance to activate the Bloody Code alsodominated criminal justice policy on the western periphery ofEngland, it seems, however, that these variations betweenScotland, England and Wales may have been less important thana much more general factor: overall distance from the centre. Thefact that almost every area on the far western and northernperiphery largely avoided using the Bloody Code for longperiods in the second half of the eighteenth century and the earlydecades of the nineteenth century suggests that, as James C. Scotthas argued, the sheer distance of regions from the centre, and theparallel erosion of central power in the western uplands caused by‘the friction of terrain’, set severe limitations on the cultural andpolitical influence of the British state.143 Research on other areas ofsocial and fiscal policy suggests that this pattern was not confinedto the capital code. From the beginning of the old poor law to theearly days of the new, the state experienced many problems inimplementing poor law policy in parts of the periphery. Forexample, while formal rate-financed poor relief was in operationin most parts of England by the mid seventeenth century, much ofWales did not levy poor rates until the early eighteenth, and

142 Innes, ‘What Would a ‘‘Four Nations’’ Approach to the Study of Eighteenth-Century British Social Policy Entail?’, 183.

143 Scott, Art of Not Being Governed, p. xi. Hechter’s conclusion that ‘the Celticterritories were only minimally integrated’during the long eighteenth century, while itoverstates the case, also gains support from this study: see Michael Hechter, InternalColonialism: The Celtic Fringe in British National Development, 1536–1966 (London,1975), 123.


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some parts were still not doing so in 1780.144 Thispattern continued through to the new poor law era. The deepresistance of the Welsh to the workhouse principle was alsoechoed in the south-west, these regions being the main areaswhere out-relief absolutely dominated poor law provision, andwhen the central poor law commissioners were forced to makepolicy exceptions, it was primarily the same regions thatbenefited.145 The poor law unions excluded from the GeneralOrder of 1845, for example, came almost exclusively from thenorth-west, the north-east, Wales and Cornwall, suchexceptions, as Keith Snell has pointed out, being particularly‘revealing of local opposition to central policy’.146 In the area ofprison building similar patterns can be found. By the 1630s almostevery area of England had implemented the legislation requiringthe building of county houses of correction, but the central statehad to wait another century before most of Wales came into line.147

Taxation policies could be equally difficult to enforce on thewestern periphery. Eighteenth-century land tax burdens werelightest in the north, Wales and to a lesser extent in the south-west, and heaviest in the south and east, which carried burdenssix or more times greater than those of Cumbria and westernWales.148 The avoidance of customs and excise duty, whilewidespread everywhere, was also particularly prevalent in areaslike Cornwall, where the jurors simply refused to convict. In1768, for example, the trial of four smugglers indicted for themurder of an excise officer in Penzance was reported as follows:‘the trial lasted upwards of eleven hours when the facts were fully

144 Jenkins, Foundations of Modern Wales, 168; Paul Slack, Poverty and Policy in Tudorand Stuart England (London, 1988), 184–5; Innes, ‘What Would a ‘‘Four Nations’’Approach to the Study of Eighteenth-Century British Social Policy Entail?’, 187. Onnorth and west against south and east spatial divisions in the nature and levels ofeighteenth-century poor relief, see Steven King, Poverty and Welfare in England,1700–1850 (Manchester, 2000).

145 David Englander, Poverty and Poor Law Reform in Nineteenth-Century Britain,1834–1914 (London, 1998), 29, 44; K. D. M. Snell, Parish and Belonging: Community,Identity and Welfare in England and Wales, 1700–1950 (Cambridge, 2006), 229–61.

146 Snell, Parish and Belonging, 240–1.147 Joanna Innes, ‘Prisons for the Poor: English Bridewells, 1555–1800’, in Francis

Snyder and Douglas Hay (eds.), Labour, Law and Crime: An Historical Perspective(London, 1987), 62; Innes, ‘What Would a ‘‘Four Nations’’ Approach to the Studyof Eighteenth-Century British Social Policy Entail?’, 185–7.

148 Donald E. Ginter, A Measure of Wealth: The English Land Tax in HistoricalAnalysis (London, 1992), 250–1; John Brewer, The Sinews of Power: War, Money andthe English State, 1688–1783 (London, 1989), 201.


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and clearly proved . . . notwithstanding which the jury (contrary tothe opinion of the whole court) found them not guilty’. Thispattern was not exceptional. A decade later the Cornishmagistrate Edward Giddy admitted that it was useless to bringrevenue cases to court because ‘a Cornish jury would certainlyacquit the smugglers’.149

Thus, it was not only in relation to the use of capital punishmentfor property offenders that attitudes on the periphery werecompletely different. In other key areas of policy, such as theraising of taxes or the building of institutions like prisons andworkhouses, the eighteenth- and early nineteenth-century state,based as it was on a multi-centred institutional framework thatwas less regulatory than it had been in the seventeenth century,often found it difficult to impose its policies fully on theperiphery.150 By looking at a central aspect of the state’s power,its monopoly of judicial violence (and in particular its use of the keycoercive force of the gallows), this article has added new weight to agrowing body of research which suggests that Scott’s ideas aboutthe relative autonomy experienced by regions on the peripheryhave important implications for our understanding of thelimitations of the central state in eighteenth-century Britain.151

The deep reluctance of the far western and northern peripheriesof Britain to implement the Bloody Code to any significant degreemay therefore require us to rethink not only some of our coreassumptions about the foundations of the elite’s hegemony andour narrative about changing attitudes to the abolition of capitalpunishment, but also our understanding of the geographicallimitations of the reach of the fiscal–military state in the longeighteenth century.

University of Leicester Peter KingUniversity of Sheffield Richard Ward

149 Paul Muskett, ‘English Smuggling in the Eighteenth Century’ (Open Univ.Ph.D. thesis, 1997), 319–23. Opposition to revenue officers was also strong nearerLondon, but murderous smugglers were sometimes convicted there without recourseto transferring the case to the Old Bailey: Cal Winslow, ‘Sussex Smugglers’, in Hayet al. (eds.), Albion’s Fatal Tree.

150 Innes, ‘What Would a ‘‘Four Nations’’ Approach to the Study of Eighteenth-Century British Social Policy Entail?’, 187.

151 Scott, Art of Not Being Governed.


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rethinking the bloody code in eighteenth-century britain

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