Although never actually applied fully, one more topic comes under the process of rationalisation. The idea of Codification of the criminal law has long been in debate and is still ongoing even now. This principle entails the full collection and integration of the common law and statutes relevant to criminal law. The aims of codification are to make the law more accessible, comprehensive and uniform for all. Despite many advantages to this, the disadvantages have meant that it has never happened, largely due to time and cost needs.
Furthermore, some see this as making the law too rigid, removing the limited scope for judicial 'creativity'. This topic was first dealt with following the French Revolution in the mid eighteenth century, and between 1833 and 1849, thirteen reports had been created by the law commission, with two propositions rejected. Many objections for codification came from the legal profession itself. Why do lawyers want the law to be simple, even for the common layman?
As the changes to everyday life in this period occurred in a relatively short period of time, it is also apparent that the law (in many circumstances) was playing 'catch up' to the desires of the masses5. The worries of a mass revolution, such as that in France, were ever prominent in the upper classes minds, and following enfranchisement also the new bourgeoisie, causing many moral panics about these groups of 'mobs' developing in urban areas. These fears are represented by a quote from a London newspaper: "… there is no possibility of stirring from our habitations after dark, without the hazard of a fractured skull"6
It is apparent that an almost unwritten code was produced by the lower classes, and this often differed from that of actual law. This 'social' crime is seen by many historians as a result of resistance to the many changes occurring during this time7 and the crime figures shows that the system was not working. Hearings about issues that differed in opinion between classes were often frequented by crowds, often resulting in attacks in which the military would have to restore order, as there was no police force yet (discussed later).
The powerful elite did not know what to do and so reacted in the only way those they new how, by increasing the number of capital offences, believing that the threat of physical harm would be a good deterrent. In 1723 the 'Black Act' introduced fifty more offences to which execution would apply and this included not just murderers, rapists and forgers but also many petty crimes such as poaching and fishing on private land. By 1800, over 200 offences could result in the death penalty. Lea tells us that between 1774 and 1776, records show that people were even hung for 'destroying silk on a loom' and swearing a false oath7.
However, this increase in the 'Bloody Code' had the opposite effect to that which it was intended. Executions were more than just the hanging of someone who was believed (by those in power) to have committed a serious crime, it was also the opportunity for a demonstration of power, aiming to encourage obedience of the law. Executions were a spectacle to which everyone was invited to see, and often encouraged to participate with excitement. People would give speeches, sing and look on with amazement and awe.
In London, the condemned were forced to take a three mile walk from the prison in Newgate to the gallows at Tyburn, where church bells would ring along the route, only to end up on a raised platform, humiliated in front of many onlookers. To the ruling classes, this procession and ceremony was as important as the execution itself, a symbolism of power – the condemned are not just killed, but humiliated and shamed. However, this should not be viewed as the harshness and brutality being carried out by evil men on a power trip caused by fear.
This was the only way that these men understood how to deal with people who had chosen to break the law set by the King, and the elite still had a strong symbolic link and loyalty to the monarch. This humiliation was made worse in 1752 with the introduction of the "Act for the Better Preventing of Horrid Crimes of Murder" which allowed the Surgeons Guild to commandeer the bodies of the executed for whatever they saw fit, including dissection and research. As mentioned, this caused many problems and conviction rates decreased.
The ceremonial part of the execution gave rise to an opportunity for further public disorder and also assisted the organisation for opposition to this method of dealing with offenders. In 1749, fourteen sailors were condemned to death and during the 'Penlez Riots', several thousand protestors took part in demonstrations, only being stopped by the promise that the body would not be taken for medical purposes. As well as public opposition, it became apparent that juries would be loathed to convict a person that may carry the death sentence if they believed this was too harsh.
Public opinion was changing and death was no longer acceptable to many, with growing respect for the dead themselves. Those who saw the problems tried for change and in 1755 Henry Fielding, a magistrate, proposed that the procession should be stopped and that the executions should take place in Newgate itself. Despite this attempt at change being rejected, in 1783 the authorities announced that the procession will be stopped as it was becoming increasingly disruptive "to traffic and business", and thus avoiding the subject of opposition. However, the hangings were still held publicly outside the walls until 1868.