Sep 6, 2018
If you were living in England in the 18th century, you could be hanged for all these offences. From 1688 to 1815, law makers in England introduced the death penalty for a myriad of offences in a bid to deter property loss. Poaching of deer, stealing of rabbits, looting from shipwrecks, pickpocketing… every page of the statue book dripped with the threat of the hanging noose.
By 1800, there were over 220 property-related crimes in the English criminal law that were punishable by death. George Savile said “Men are not hanged for stealing horses, but that horses may not be stolen.”
Historians referred to this era of criminal law as the “Bloody Code”.
The Bloody Code
“Every page of our statue book book smelt of blood. We hanged for everything — for a shilling — for five shillings — for forty shillings — for five pounds! We hanged for a sheep — for a horse — for cattle — for coining — for forgery — even for witchcraft — for things that were and things that cannot be.”
— Charles Phillips, 1857
Capital crimes in the Bloody Code included cutting down of young trees and blackening your face at night.
In 1723, the British parliament passed the Black Act which sentenced to death anyone who was found with a blackened face in a forest or a hunting ground. The Black Act also criminalised anyone who fish, hunt or destroy trees in the these locations. People could also be executed if they set fire to corn, hay, straw or wood in the area. In total, the Black Act added the death penalty to over fifty crimes.
These laws was passed in response to a gang of poachers based in Hampshire and Windsor Forest. They would hunt deer with blackened faces to avoid being identified. A short while after the law was passed, seven such poachers known as the Waltham Blacks were caught and hanged.
As the death penalty was introduced to even more criminal acts over the years, the multitude of capital crimes soon became staggering and incongruous.
In a Letter to His Excellency Patrick Noble, Governor of South Carolina, On the Penitentiary System, German-American jurist Francis Lieber pointed out the inconsistency of the laws:
“He who steals from my pocket a handkerchief above a value of twelve pence shall, according to the letter of our law as it stand on the book, atone with the forfeiture of his life.
But the thief who steals from a jeweller’s shop a most costly article, is punished with whipping and imprisonment only, while at the same time a petty theft from a booth or tent in a market or fair by breaking in, is punishable with death.
Robbing a bank at night time by breaking into the building is not a capital offence, but the second conviction of horse stealing is.”
The Reluctant Jurors
In practice, the judiciary administrators were not unaware of the harshness of the Bloody Code. They would find ways to circumvent some of the laws. Jurors would be reluctant to pass a guilty verdict when the punishment was the death penalty. Judges would reduce the severity of the crime so that the accused no longer faced the prospect of hanging. Death sentences were commuted to exile or deferred.
In 1750, Ann Flynn was accused of stealing a shoulder of mutton from a butcher. She admitted to the theft, but pleaded that she had resorted to stealing in order to feed her two young children. Her husband was ill and he had been out of work for three months. The jury was sympathetic. She was sentenced to a fine of only one shilling, which the jury paid. The prison officer gave Flynn a shilling before she left.
In 1763, John Cox was on trial for stealing 6lb of sugar. The jury, on hearing that Cox was in dire straits and that his wife and five children were suffering from small pox, recommended mercy and collected money to help Cox’s unfortunate family.
Still, despite these spotlights of mercy, the law was the law. People in pre-Victorian times had been sentenced to death for reasons we would find appalling today. From stealing twelve pence to finding malice in a child, here are some of the shocking things that people could be hanged for in 18th and early 19th century England.
Stealing More Than 12 Pence
Stealing more than 12 pence (or one shilling) could get you the death sentence.
Though historical currency conversion is a notoriously fiddly matter, the UK Archives currency converter estimates that a shilling in mid-1700s is the equivalent of £5.83 in 2017. Imagine being sentenced to death for stealing anything that costs more than eight dollars!
In 1741, nineteen-year-old Elizabeth Hardy from Norwich was sentenced to hang for stealing goods worth 13 shillings and 6 pence (around $100 today). Abandoned by her husband and alone in London, she had been driven to theft out of desperation. She was given a last minute reprieve at the gallows and her sentence was commuted to transportation instead.
Roderick Audrey was a young thief with a way with birds. At nine years old, he had mastered the art of training his pet sparrow to fly into London townhouses. He would knock on the door with tears in his eyes and beg the butler to let him in to retrieve his pet sparrow. Once he was inside, he would grab silver cutlery and stuff them down his pants. If he was seen before he could finish his thievery, he would run out of the house as if he was chasing his sparrow like the innocuous boy he appeared to be.
Audrey was so prolific at his stealing that country towns and villages within ten miles of London soon knew that the boy who played with the sparrow was a thief. Audrey’s luck ran out in his teens. In 1714, he was arrested and sentenced to hang at Tyburn. Unlike Elizabeth Hardy, he did not get a reprieve. Audrey was sixteen years old when his life ended.
Returning From Transportation
“Returning from transportation” refers to unlawful escape from exile. After 1615, it became common for criminals to be sentenced to exile to Australia, America or Africa for life or several years. Any deported convict caught returning to England before the expiration of their sentence risked being hanged.
Jenny Diver was one such person.
Her real name was Mary Young. Birthed as an illegitimate child by a lady’s maid, she was abandoned by her mother at a young age. She grew up in several foster homes in Ireland and gained a reputation as a skilled seamstress. She later emigrated to London and fell in with a gang of pickpockets. She was so skilled at stealing that she became the leader of the gang. She was nicknamed Jenny Diver for her exploits.
In one of her famed scams, she would dress up as a baroness and knock at the door of a great townhouse. Once the door opened, she would faint straight into the arms of the butler. The grand household would be stirred into a great panic as they fussed over the fainting noblewoman. Meanwhile, her sidekick disguised as her footman would ransack the house for valuables. Once her “footman” had looted the premises, Jenny would speedily recover, present her calling card to the overwhelmed mistress of the house, and leave the house flouncily with their silver plates and cutlery.
Jenny was also known to put on a custom-made dress with a fake pregnancy stomach bulge and false wooden arms. She would sit piously in church with the false arms over the stomach bump and pickpocket the people around her.
In 1733 and 1738, Jenny was arrested and sentenced to transportation twice. However, on both occasions, she bribed the captain of the ship to take her back to London. In 1741, she was arrested again. This time, she was indicted with returning from transportation, a capital crime.
She was sentenced to hang.
Because of her fame as a notorious criminal, she was taken to the execution grounds in a mourning carriage. It was reported that she went to her fate calmly in a black dress and a hat with a veil.
Strong Evidence of Malice in a Child
Children, specifically between the age of seven and twelve, could be sentenced to death if there was evidence of strong malice in them.
In 1629, a boy described as “an infant between eight and nine years” was hanged for setting fire to two barns. His name was John Dean. He was one of the youngest persons to be sentenced to death in England.
In the trial documents of Old Bailey, a note regarding the law specifies that
“An infant… seven years old, cannot be guilty of felony, whatever circumstances… may appear.
If he be above seven years old, and under twelve years, and commit a felony… he is likely to be [judged] not guilty, because he is… not of [discretion] to judge between Good and Evil...
...yet if if it appears by [strong] and pregnant Evidence and Circumstances, that he had [discretion] to judge between Good and Evil, Judgement of Death may be given [against him].”
Judges have applied this law using their discretion. In 1758, a woman was accused of receiving stolen goods from a young boy charged with shoplifting. When the judge learnt that the boy was only nine years old, he stated that “as the boy was not capable of distinguishing between good and evil, so no felony, and if no felony no accessory, wherefore they were both acquitted.”
English judge William Blackstone gave his appraisal of this law in his treatise Commentaries on the Laws of England.
He advocated that sparing a young criminal child “on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all judges that he was proper subject of capital punishment. But in all such cases, the evidence of that malice… ought to be strong and clear beyond all doubt and contradiction.”
In the case of eight-year-old John Dean, however, court notes recorded that jurors found the boy “upon Examination, that he had Malice, Revenge, Craft and Cunning, he had Judgement to be hanged, and was hanged accordingly..”
That was all we know of young John Dean in historical records. He was judged to have malice in him and he was hanged for it. Sadly, we will never know his story. His passing was a mere footnote in history.
