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What do historians do?
What do historians do?

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3.4 Sentenced to death: the end of the road?

A satirical drawing in colour. A man in a black robe and white wig reads from a large official document. He stands side-on and appears to address someone out of frame. Behind the man stands another individual in dark robes and a white wig. The features of both men are greatly caricatured. To the left of the image, another man in a dark robe and white wig sits with his back to the viewer.
Figure 22 ‘A Counciller’ (i.e. lawyer) by Thomas Rowlandson, c.1810.

If the Bloody Code was not implemented evenly, what was happening instead? Being found guilty of a crime under the Bloody Code could lead to a number of outcomes, as John Walliss has argued: ‘those who died on the gallows, after all, only represented a small percentage of all those who were sentenced to death’ (2018b, p. 3). Even in cases where the defendant had been found guilty and a death sentence was passed, often indicated in the court records as ‘death recorded’, all hope was still not lost. Juries could recommend mercy, judges could order transportation instead, or convicts could hope for a reprieve or pardon for their crimes. Pardons were granted by the Crown as a result of petitions from the friends, family and often the wider community of the condemned prisoner asking for mercy. Surprisingly, such petitions were often organised by people involved in the criminal justice system. Sheriffs performed regional law enforcement and administrative duties. Among other things they were responsible for the safe custody of prisoners and the proper execution of death sentences, yet they were often found collecting support and signatures for clemency requests especially in rural areas.

Women convicted could ‘plead their belly’, in other words claim that they were pregnant, which, if confirmed by a jury of matrons, could lead to a reprieve or commuted sentence. Women with ‘babes in arms’ were very likely to be reprieved. A condemned woman would hope that the local midwives could find some evidence of pregnancy on examination, and most could. Even where a guilty verdict had been reached and sentence had been passed, hanging was not inevitable or even the most likely outcome for the convict.

Activity 10

Timing: Allow about 25 minutes

Even where the verdict was ‘guilty’ and a sentence of death had been passed (recorded), the chances of it being carried out were low. Listen to Matthew Sweet interviewing the writer Naomi Wolf. Using your knowledge of operation of criminal justice in Britain and how historians do history consider the following:

Where did Wolf go wrong?

What steps could Wolf have taken to avoid making such errors in the interpretation of evidence?

Tip: Listen carefully to Sweet’s questions as they will give you clues!

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Wolf and Sweet are talking about a completely different category of crimes to those you have considered under the Bloody Code, but this discussion shows how very important it is to be accurate with records, statistics and language comprehension when handling legal and justice issues. Wolf has a literal understanding of the written word in British law, which you now know from your study of the Bloody Code was not necessarily how the law actually worked. Sweet’s responses show how this misunderstanding could have been avoided or corrected; Wolf should have kept going with her research and found out what happened to these men. It needed to be established if they did, in fact, hang and newspapers are a helpful source for this information. Wolf needed to read carefully what criminal justice historians had already written on the operation of the law and punishment in the nineteenth century. If several historians say that the last person executed for sodomy was in 1835, they are probably correct and your evidence to challenge this must be checked, corroborated and watertight!