15. Crime and the Law

15. Crime and the Law

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Well, we’ve looked at a number
of ways in which the late Elizabethan and early
seventeenth-century period was a rather anxious age,
and one of the things that the authorities in Elizabethan
England and under the early Stuarts were very generally
concerned about was the problem of order,
which naturally raises the question of just how disorderly
society was at the turn of the sixteenth and seventeenth
centuries. And today I want to approach
that in one way by looking at two of the kinds of crime which
provided much of the serious criminal activity dealt with by
Elizabethan and early Stuart courts and which will help us to
approach this general problem. One aspect of crimes of
violence and the other crimes against property and how they
were dealt with. Okay. We’ll start with violence.
So how violent a society was
Elizabethan and early Stuart England?
It’s a question which has quite
seriously divided historians. Prior to the 1970s I suppose
there was a general consensus that it was indeed an
exceedingly violent society by modern standards.
Lawrence Stone,
the great Princeton early modernist, provides one of the
most forthright statements on this point.
He was a historian who was good
at really forthright statements, and in his book The Crisis
of the Aristocracy he writes that “the behavior of the
propertied classes and that of the poor was characterized by
the ferocity, childishness,
and lack of self-control of the Homeric age”–
imagine Brad Pitt in Troy–and unless we can “grasp
these basic psychological premises”
we cannot hope to understand”
the scale of the problem which the Tudors faced.
Well, that’s Lawrence Stone.
He continues,
“their nerves seemed to have been perpetually on
edge,” breeding language in quarrels “so intemperate as
to be almost deranged,” and “a readiness to resort
to direct action with no holds barred and a general contempt
for legal restraint.” Well, a couple of decades later
Alan Macfarlane in a book on crime in the north of England,
The Justice and the Mare’s Ale,
took an almost diametrically opposed view.
He quotes contemporary
travelers and diarists of the seventeenth century and
concludes, “the very strong
impression these works give” me is of “a
society in which people were not moved by irrational anger and
fury, where they did not live or
travel in fear, where despite physical hardship
there was a great deal of tenderness and affection.”
Well, what I want to suggest in
looking at some of the evidence today is that both of these
positions have some merit, but they’re also partial
because both are in different ways one sided.
And if we’re to approach this
problem adequately we really need to make a number of
distinctions, distinctions geographically
between different parts of the kingdom,
distinctions socially between the behavior of different
groups, and we need also to look at
these matters chronologically with a sense of the changes
which took place over time, and I’ll try to do these things.
But let’s begin by looking at
some of the special cases geographically and socially
which will give us a little drama to start with.
There’s no doubt for example
that in the late sixteenth century and into the early
decades of the seventeenth century there were some areas of
England and Wales which were indeed quite seriously
disorderly and in which violent crime was more or less endemic.
The most notable area of all
was the Scottish border area running between Carlisle and
Berwick and consisting of high bare hills dividing England from
Scotland. This whole area and the
counties to the south of it were periodically disturbed by the
threat of what was called ‘reiving’,
raiding, conducted by members of the so-called ‘surnames’,
members of certain border clans who might be situated on either
side of the border, also known as ‘moss-troopers’.
Men who belonged to families
like the Armstrongs, the Grahams,
the Ridleys, the Robsons,
the Halls, the Fosters, the Elliots,
the Dicksons. I noticed looking through the
roster we have a Dickson in this class, which is quite worrying.
>
These were people who would set
out when the opportunity provided itself on their little
Galloway ponies– generally armed with a leather
jerkin and a steel cap, dagger at the back,
crossbow on the saddle, lance and sword–to raid,
and they raided on both the other side of the border and in
their own kingdoms also. It was said of the Armstrongs
and the Grahams, there was a contemporary
proverb, “Armstrongs and Grahams ride thieves all.”
Well, these were the
moss-troopers, the border reivers.
I’ve actually looked at the
indictments for the courts for the county of Northumberland
between Newcastle and Berwick and they reveal a great deal of
the activities of these people. They’re quite distinctive
compared to other criminal records.
Instead of finding someone
accused for example of stealing of a hen,
or a piglet, or something like that,
kind of commonplace thefts, in this area you find people
accused of stealing twenty cattle or forty sheep,
of attacking houses, of taking people for ransom.
So many of those involved
belonged to these particular surnames,
particular families who were notorious,
that they were frequently given nicknames because so many of
them had the same name, and these survive also in the
records. So, for example,
amongst the men who were accused in Northumberland in the
1580s and ’90s of reiving, or of slaying,
used with–using swords, daggers or lances,
we find, for example, Thomas Armstrong,
known as “Geordy’s Tom.”
His father was called George,
so he’s “Geordy’s Tom.”
We have William Ridley,
known as ‘Slack Will.’ We’ve got William Hall,
known as “Saucy Will.”
We have John Dobbs,
alias “Crooked Jock”; John Foster,
alias “Red John”, and so one could go on.
I think you get the general
idea. My favorite border reiver was
in fact a Scotsman, Clement Crosier,
who was known by the wonderful nickname of “Nebless
Clem,” “Nebless Clem.”
A “neb”
in the dialect of the area was the tip of your nose;
that’s your neb. And Nebless Clem had lost the
tip of his nose in a sword fight.
A broadsword stroke had taken
off the end of his nose, so he was known ever after as
“Nebless Clem,”>
and so one could go on.
So, in 1603 when Elizabeth I
died, the Graham family on the border
decided that until King James VI of Scotland reached the south of
England and was crowned as James I of England the laws were
temporarily suspended and they set off to take advantage of
that fact. In a week they raided south–as
far south as Penrith in Cumbria and it became known as ‘Busy
Week’. They took 5,000 cattle,
they did almost 7,000 pounds’ worth of damage to property,
they captured fourteen men whom they held for ransom,
and in the course of attempts to resist them they killed
another six. So this is the kind of thing
which could happen, though it’s an extreme example.
Now, none of this of course is
typical, but it existed. It was going on,
in the border, in the border counties and it
needs to be considered, and in fact the Welsh border
though less bad was also an area which was known for its relative
lawlessness because of the possibility of criminals
slipping between jurisdictions across the border.
Right.
So if the geographical
periphery of the kingdom had some rather special problems,
then so too did the social periphery of the aristocracy and
the gentry. Lawrence Stone in The Crisis
of the Aristocracy cites far too many specific cases of
aristocratic and gentry violence to be ignored.
These were people who could be
exceedingly touchy about personal honor and willing
sometimes to resort to extreme measures to revenge slights
against their honor. Some of them indeed were
virtually above the law in their capacity to get away with it.
So, for example,
it’s a fact that in 1589 Sir Thomas Langton and eighty of his
men besieged Sir Thomas Houghton and thirty of his men in Lea
Hall in Lancashire, up in the northwest,
and when they broke in they killed Houghton and several of
his defenders. When the government established
a special commission to look into this particularly bad
example of feuding amongst the gentry,
only three of the jurors who were appointed dared to turn up.
The rest were too intimidated
by the local power of those responsible, and in fact no
formal presentment of this offense was ever made at law.
The privy council had to deal
with it in other ways. Or to take another example,
in 1580 the Earl of Oxford, the man whom some people think
wrote Shakespeare’s plays, begat an illegitimate child on
a gentlewoman who was under the protection of Sir Thomas
Knyvett, and that resulted in a feud
between the two which included an assassination attempt on
Knyvett in London and several armed affrays between their
retainers and servants in the streets of London in which four
men were killed and three were seriously wounded.
And yet the courtiers
responsible were too powerful to be actually indicted in the
courts. Again the privy council
pacified it in other ways. Well, that kind of aristocratic
and gentry violence could be added to from all over the
kingdom. It was the result of a code of
behavior which laid a stress on competitive assertiveness in
defense of a man’s face and pride and reputation and one
which could assume, in some cases at any rate,
that resort to violence was both natural and justifiable.
Well, the special problems that
were posed by both the geographical and the social
peripheries were fully recognized by contemporary
authorities, and the Tudor and early Stuart
state did its best to try to deal with them.
The northern and Welsh borders
were under the special jurisdiction of particular
councils established after 1560 to deal with their special
problems: the Council of the North sitting in York,
the Council in the Marches of Wales sitting in Ludlow.
And they labored to bring
offenders to heel. Wardens of the Marches were
appointed who also had the duty of cooperating with their
opposite numbers on the other side of the border in order to
bring offenders to heel. Some of them did so
successfully, some not so successfully.
In Northumberland,
Sir John Foster, who was the warden of this part
of the border, was notoriously in league with
most of the border reiving families himself,
but he was succeeded by others who did the job better.
One of them,
Robert Carey, loved it.
He wrote with enthusiasm to one
of his friends in the south how he spent every day in the saddle
pursuing people across the border.
When Elizabeth died he was
selected to be the man to carry her ring to Scotland to give to
James VI as a token of his succession.
They chose him because A,
he was a good rider,>
and B, they thought he could
get through the border safely. Border commissioners were
appointed by James VI and I, when he became King of England,
in order to cooperate even more closely,
and indeed the level of violence in the border counties
steadily diminishes from that point onwards.
By the 1620s,
it was largely over. By the 1640s,
in some local histories it was being recalled as a rather
romantic past, rather than a rather terrifying
present reality. Again in dealing with feuds and
quarrels amongst the aristocracy and gentry the privy council did
its best to try to pacify and restrain people.
It heard complaints,
alternative channels through which feuds could be settled.
It made inquiries.
It summoned offenders before it
to answer. It forced arbitration upon
people whose feuds might lead to violence.
It put them under bond to keep
the peace. The Court of Star Chamber
sitting in Westminster was particularly active in dealing
with riotous and violent behavior amongst lesser
offenders, doling out fines and
imprisonments and so forth, and the use of crown patronage
could also help to keep people in line if they wanted to retain
royal favor. Gradual success in measures of
this kind can be traced. That kind of behavior became
less common as the seventeenth century advanced and it was
probably accompanied by something of a shift in social
values. Humanist educators of the
period were beginning to teach an alternative notion of honor
and nobility which laid greater stress upon civility and
restraint and service to the state,
rather than on a prickly form of individual honor.
There was the influence of
Protestant preachers too who preached a sober and restrained
model of manhood. All this was slow to affect
behavior but perhaps significant in the long run in changing the
expectations of what was tolerable behavior amongst the
elite. Indeed, it could be said in
some ways that they were providing a model of a sort of a
‘new man’ for the period. There were limits to the
success of all that. Competitive assertion was still
commonplace. Even in such a peaceful
environment as the University of Cambridge in the late sixteenth
century outbreaks of violence amongst the students were
actually quite common. There are many records of
students disciplined for such activities as pulling one
another’s beards, which was a way to insult
someone if you were in a quarrel with him,
pull their beard–it was thought to be terribly
humiliating– or activities such as in 1601,
I think it was, when the students of St.
John’s College attacked Trinity
College en masse armed with clubs.
They were repelled by the
students of Trinity College who climbed to the top of the tower
and threw pieces of masonry down on the attacking mob.
This had to be quelled by the
university watch and many of the students concerned were whipped
in their college halls or put in the stocks in their college
halls as a means of discipline, and so one could go on.
The records of the University
of Cambridge are extremely interesting in this respect.
On one occasion in the 1590s,
a group of students pretended to be the city watch and went
around forcing taverns which had closed for the night to open and
serve them. They trashed the Cross Keys
Tavern and again there was a major disciplinary action as a
result of this. One of those who trashed the
Cross Keys Tavern was a future Bishop of Durham.
>
He was there training for the
clergy. One could go on.
The duel also remained,
of course, a feature of aristocratic culture for a long
time. There are examples of dueling
right through to the nineteenth century.
Most prime ministers of Britain
fought a duel at one time or another right up to the Duke of
Wellington in the early nineteenth century,
but that was a kind of individual one-on-one violence,
not as common as is sometimes thought,
and very different from open feuding with gangs of armed
retainers, which had been the kind of
thing which had existed earlier. But to move on,
what about the heart of the kingdom and less elevated
offenders? And that can be approached by
looking at the records for homicide.
The records of the Assize
Courts or the King’s Bench, which met in London,
contain many inquests and indictments for homicide.
They’re pretty full.
And these provide a fair
opportunity to examine the actual incidence of crimes of
this kind. It was a hard crime to conceal
when someone was killed and investigation by coroners was
virtually automatic, which could lead to criminal
prosecution. J.A. Sharpe in his book,
Crime in Early Modern England,
has attempted, for part of the mid-seventeenth
century, to produce an actual rate of
homicide, crimes per hundred thousand
population, and he calculates that the
homicide rate in mid-seventeenth century England was about three
times that of modern Britain. It may indeed have been
somewhat higher since sometimes coroners’ inquests would fail to
bring a charge in circumstances where today it would almost
certainly be listed as a homicide.
Others have also attempted
calculations of this kind, and what they tend to bring
out, they all agree– the figures vary but they all
agree– that the levels of indictment
for homicide were actually gradually falling from the late
sixteenth century right through to the late eighteenth century
in fact. And some of the figures that
have been produced are there on one of the tables on your
handout. If you look at table two,
it’s worth looking at in detail but if you just look at the last
two columns there you have the– a–rate calculated per hundred
thousand population for the counties of Surrey and Sussex.
Urban Surrey is London,
south London. Then you have rural Surrey,
then a total for the whole county, and we also have the
figures for Sussex. Surrey is here to the south of
London, Sussex is on the south coast.
And what you’ll see there is a
steady decline in the rate of homicide.
A gradual process of
pacification one could say. So this suggests,
perhaps, that it was indeed a period with more serious
violence than our own, but not one which was inured to
simply casual slaughter. We seem to be somewhere in
between Lawrence Stone’s violent and unrestrained emotional
infants and Alan Macfarlane’s nice, orderly Englishmen.
The circumstances of the cases
that were heard bring that out even more.
In the sixteenth and
seventeenth centuries, people killed their families
less and their neighbors more than is the case today.
In seventeenth-century Essex,
and indeed in late sixteenth-century Essex too,
violent slaying was much less confined to the family.
In modern Britain about 50% of
homicides take place within the family.
In Essex in the early modern
period, it was only 21%, even if you include the killing
of servants. So violence is more broadly
spread in society. But the killing was rarely
premeditated. It usually arose from quite
spontaneous resort to violence in the course of a quarrel.
In many ways the homicide cases
that survive in the records were actually cases of aggravated
assault. J.A. Sharpe has analyzed the
weapons that were used. He finds that poisoning,
a very calculated act of homicide, was very rare.
Guns and swords and knives were
rarely used, which is perhaps surprising since nearly everyone
carried a knife to cut up their food.
Even housewives generally
carried two knives. It was a badge of their
position in the family. They had double sheaths with
two knives to use about their duties.
The commonest weapons used for
homicide in this period were simply tools which people had
picked up in a moment of anger, or sticks, or cudgels,
or fists and feet. In more than two thirds of the
cases examined by Sharpe, people killed others with their
fists or their feet. These were brawls then which
resulted in a death. So homicide emerges as largely
a question of violence arising amongst neighbors in the course
of day-to-day quarrels. It does indeed suggest that
there was a degree of willingness to strike out with
relatively small provocation, which is unfamiliar.
At least among men.
Women are very rarely involved.
They turn up in homicide cases
usually only in the very special circumstances of accusations of
witchcraft or of infanticide. So before coming to the
conclusion that this was a significantly more violent
society than our own we should also take into account the fact
that in the seventeenth and twentieth centuries the figures
are not strictly comparable. Many of those who died as a
result of such casual violence in the seventeenth century would
actually have been saved today by modern medical techniques.
The crimes concerned would be
down as serious assault rather than as homicide and one has to
allow for that. But nevertheless something was
going on in the period, a gradual decline in the rates
of homicide even though modern medical techniques had not come
in during the period of the– covered by the tables that you
have there. So something is going on.
Overall then,
one can say some areas of the kingdom which had provided
special problems were being pacified,
some social groups who presented a special problem were
being pacified, and it seems likely that the
higher degree of spontaneous violence amongst otherwise
respectable people was gradually being reduced.
There were limits to the
violence of the period, limits to what was regarded as
tolerable, serious efforts to try to
contain it, and the figures suggest that
they were meeting some success. Well, let’s turn now to crimes
against property. If violence might seem to us
the principal indicator of the orderliness of a society,
contemporaries were actually much more concerned with the
problem of trends in theft. Many of them believed that they
were witnessing in the– at the turn of the sixteenth
and seventeenth centuries something of a wave of crimes
against property. And when you look at the court
records it’s always property crimes which predominate in the
evidence that survives. If you look at your handout,
table one, that breaks down the crimes
dealt with by various court jurisdictions in the counties
I’ve marked on the map here and overwhelmingly property offenses
dominate those statistics. Property crimes of all sorts,
in fact, seem to have been rising in
most of the areas of England for which we have evidence from
roughly the 1580s through to roughly the 1620s and then
gradually diminishing. And there’s an example of that
in table three on your handout where we have the figures for
Chester in the northwest, which has very good records,
and you get that upward trend followed by a significantly
lower level of property offenses later in the seventeenth
century. Well, certain trends can be
discerned then; a real problem at the turn of
the century getting somewhat better later on.
But when we talk about property
crime of course it’s a rather blanket term and it covers a
multitude of specific offenses. There are two principal
distinctions in property crime that we need to take note of.
First of all,
they made a distinction between capital and noncapital forms of
theft. Capital forms of theft were
those which were punished by death and they included highway
robbery, burglary, and housebreaking and
also thefts of goods worth more than one shilling;
that’s about a day’s wage for a London laborer,
twelve pence, one shilling.
If you stole goods worth more
than twelve pence or one shilling, you were guilty of
‘grand larceny’ and that carried the death penalty.
Then there were noncapital
thefts, ‘petty larceny’, goods of lesser value valued at
less than one shilling; that was punishable by whipping.
So they distinguished capital
and noncapital. Secondly, they distinguished
forms of property offense which were ‘clergyable’ and those
which were non clergyable. What did that mean?
A clergyable offense was one
which was subject to ‘benefit of clergy’, benefit of clergy.
That meant that a person found
guilty, even of a capital crime,
could escape hanging by claiming benefit of clergy,
by claiming to be a member of the clergy.
It was a hangover from the
medieval laws which had exempted the clergy from the jurisdiction
of the state’s courts. By this period it was a
complete fiction but they continued to use it in the
procedures of the courts. You proved that you deserved
benefit of clergy by proving that you could read,
and you proved that you could read by reading what was known
as the “neck verse” because it saved your neck,
the neck verse. Psalm 51, verse 1.
It’s very appropriate:
“Have mercy upon me, O Lord, according to thy loving
kindness, according to the multitude of
thy tender mercies, blot out my transgression.”
If you could read that
successfully, you would be spared.
Grand larceny was clergyable
though some offenses were considered so serious that
clergy was not permitted: house breaking,
burglary, highway robbery and some other offenses.
Clergy applied only to men
because only men could be members of the clergy,
but a woman found guilty of a capital offense was allowed to
“plead her belly” as they put it;
that’s to say she could claim that she believed herself to be
pregnant. If so, she would be spared
since it was clearly unjust to hang a pregnant woman,
and if so spared she might ultimately be reprieved after
the birth of the child. So much for definitions then.
The problem in discussing
property crime is that, though one can understand the
system of how they dealt with it well enough,
it’s impossible to establish the actual incidence of these
crimes, because what we have in the
court records are not the records of all crimes committed,
but simply the records of those that got prosecuted.
And that leaves us with what
people refer to as the “dark number”
of offenses that we just don’t know about.
In 1596 for example,
one justice of the peace for Somerset said that in his
opinion only about a fifth of the property offenses which were
committed ever came before the courts;
the rest went unprosecuted, largely because people didn’t
consider it worth the time and trouble and charge of bringing a
case over goods which were of low value.
Nevertheless,
as the figures show, there was a considerable rise
in the numbers of people who were prosecuted at the turn of
the sixteenth and seventeenth centuries.
That might possibly be
accounted for partly by population rise,
but also there appears to have been a real increase over and
above what can be accounted for by simply a rising population.
So then are we dealing with a
real increase in property crime, a crime wave,
under Elizabeth and the early Stuarts,
or, on the other hand, is it just a tightening up of
the law, not an increase in crime but an
increase in prosecution? Well, I’d suggest that it was a
bit of both. In considering the problem,
it’s helpful to ask the simple questions: who were the thieves,
what were the circumstances of their offenses,
and so forth?. There’s very little evidence in
the court records of the existence of a professional
criminal class in England. It certainly existed in London.
London is another special case
and London certainly had a corps of professional criminals,
but elsewhere it’s rare to find people repeatedly prosecuted in
the courts from whom– for whom one can reconstruct a
criminal career. They exist and their careers
were not necessarily cut off by being hanged for their first
offense, as we’ll see,
but there seem to have been few of them.
The nearest thing you get to a
criminal class in the countryside were vagrants who
might steal as part of the way in which they managed to get by
and occasionally delinquent families,
in particular villagers who seem to have been held
responsible for a lot of petty offenses.
In one village I worked on in
Lancashire for example, there was a man who was known
locally by the nickname ‘Desperate Tom’ because of the
frequency with which he was involved in petty crime of one
kind or another. There were such people,
but not a professional criminal class in the sense that we might
expect it. Most offenders turn out to have
been drawn from the lowest ranks of the rural population:
laborers, poor craftsmen, servants.
These are the people who are
disproportionately represented. You very rarely find yeoman
farmers, or husbandmen, or craftsmen of substance being
presented. They’re overwhelmingly men.
You very rarely find women
being prosecuted. Only about 15% of those accused
of property crimes in the county of Hertfordshire for example,
to the north of London, were women,
and other counties have similar figures.
Most of the offenses they
committed also turn out to have been rather opportunistic acts.
What you get is someone
stealing perhaps a small animal which had strayed or taking
small goods which they happened to have the opportunity to
pilfer. And most students of the
problem suggest that for many of the rural poor occasional petty
pilfering of that kind may have been part and parcel of the way
they got by. That’s certainly brought out
vividly in years of bad harvest or trade depression.
In the town of Manchester for
example, in the fairly normal years 1615
to 1621, there were about thirteen
people tried for property offenses each year.
In the bad harvest year of 1622
to 1623, the figure shot up to
thirty-eight, and that kind of fluctuation in
particular crisis years is something that has been found in
every county that’s being studied.
Sometimes you have the detailed
circumstances of cases in the examinations or the confessions
of those who were brought to trial,
and that provides supporting evidence.
For example,
in 1626 in the county of Worcestershire a man called
William Bride was prosecuted for stealing a sheep and he said–
he confessed and said in his own defense “that the same
sheep was rotten”– that’s to say it was sick–and
that he took it “for want of food to relieve his
wife.” Or again in 1623 Robert
Whitehead, a laborer from the village of Terling in Essex,
stole and with his family ate a sheep and he confessed and said
that he did it “having a wife and seven small children
and being hungry.” They actually identified him as
the thief because they found the skin of the sheep in his
cottage; it had been eaten.
These things considered,
it may very well appear that the general rise in the
incidents of theft in the court records at the turn of the
sixteenth and seventeenth centuries,
especially these petty thefts, may relate to the general
process of pauperization of the rural poor which we’ve already
observed being at its worst in this period,
and there’s an excellent study of this which you find on the
reading list by Peter Lawson called “Property Crime and
Hard Times.” However,
of course, that’s only part of the explanation.
One can’t simply equate poverty
and theft. Clearly, most of the poor
didn’t steal and of those who did not all were prosecuted.
And various other
considerations are at work in the kinds of figures that we
have from the court records. Often cases weren’t brought
because victims of crime simply couldn’t be bothered with the
expense and trouble involved, having to bring a case
themselves, especially if the goods had been recovered,
which they sometimes were. When goods were found missing
there was often a search by the constable.
If they were recovered,
the victim quite frequently declined to prosecute.
That was sometimes partly out
of pity for the thief, not least because the person
responsible might very often be a neighbor,
someone well known to them. There was definitely a
preference for mediation in settling disputes of all kinds
at the local level. The early seventeenth-century
clergyman, George Herbert,
clergyman and poet, wrote and advised that in such
cases “gentle and neighborly admonition”
was the best course to take. One should prosecute in the
courts only if a delinquent persisted in delinquent
activity. So what’s at issue in
understanding how these cases came up to be recorded in the
court records is of course the whole tenor of social
relationships within particular neighborhoods,
and it’s not surprising that people have found when they look
very closely at cases heard in the courts that those who were
prosecuted as thieves very often have particular characteristics.
They were often outsiders,
not members of the village community, not sheltered by
being known, perhaps even liked, within the village.
They were often,
if they weren’t outsiders, very marginal people,
the kind of people who were accused of witchcraft for
example. They were sometimes known
delinquents who had finally exhausted the patience of the
local community by persisting in their activities.
But even when they were
actually brought before the courts there were various ways
in which the full rigor of the law could be spared.
Sometimes having brought a
prosecution in order to scare someone, the victim would allow
it to lapse by not turning up to see the case through.
The grand juries which had to
look at the cases in the courts vetted the indictments which
were brought before them very carefully and they could be very
conscientious in weeding out cases in which they considered
the evidence to be deficient, or they suspected that there
might be an element of malice in the prosecution,
or where they simply decided that in the circumstances of the
case they were going to be merciful.
They vetted each case.
If they wanted it to go to
trial they endorsed the indictment billa vera,
a true bill, and it went forward.
If they thought it could be–it
should lapse, they endorsed the bill
ignoramus; they wrote the word
ignoramus on the bill, literally “we do not
know,” and the case would be dropped.
In the county of Sussex in the
early seventeenth century, as many as a quarter of
indictments were actually dropped in this way by the grand
jury. Or again, if the case came to
trial, trial juries of neighbors frequently failed to convict.
Some of them were moved
probably by a degree of compassion for the person before
them. They frequently indulged in the
practice of reducing the valuation of the goods which had
been stolen, so that a person would get a
lesser conviction. So for example they might have
someone before them for stealing a sheep valued at two shillings,
which would have carried the death penalty;
they decide that the person needs punishing but not that
severely, and so they would find them
guilty but reduce the value of the sheep to ten pence or eleven
pence, which would mean petty larceny
and the person concerned would be whipped,
rather than hanged. All of that was extremely
common. For example,
in Elizabethan Essex a fifth of all property offenses had the
valuation reduced in that manner.
And finally there was the use
of benefit of clergy. This was very important indeed.
In Elizabethan Essex,
only a tiny proportion of those who were convicted of stealing
sheep, which was clergyable, were actually sentenced to
hang; could be as low as six percent
in particular years. The rest were permitted clergy
and, since the levels of literacy
were so low in this period that it seems highly unlikely that
such a high proportion of felons could actually read,
it’s perfectly clear that the magistrates and the judges were
permitting any kind of stumbling through the neck verse,
often from memory probably, in order to allow them to have
this means of escaping the death penalty.
Of the–to give you the precise
figures– of 790 people who were allowed
to attempt to read in the courts of Elizabethan Essex,
only nine failed to do so. And finally,
convicted and condemned felons were not infrequently reprieved
if the judge thought that there was a case for mercy.
The judge ended every assize
court by recommending those who would be reprieved,
especially if there were respectable members of the
community who were willing to speak for them.
All of this goes to show quite
clearly that the apparent savagery of the law did not in
practice vent itself on people quite as severely as one might
suspect, or certainly not in an
unrestrained manner. It was used with a great deal
of discretion, and discretion in the way the
law was used is something of a key word for historians of
criminal justice in this period. That issue, discretion,
and how it was used is absolutely central to the two
classic articles which you’ll be reading for next week’s section.
In one of them,
Douglas Hay has argued that this use of discretion was a
quite calculated policy by the magistrates to balance the
terror of the law with the practice of mercy,
and by doing so to retain the gratitude and the deference of
the poor. Make examples of a few;
pardon the rest. It’s conducive to order.
That’s his argument.
Cynthia Herrup takes a rather
different line. She argues that the operation
of the law involved many elements of participation by
rulers and ruled alike, not only the judges and the
magistrates but the members of juries and so forth.
As many as three dozen people
could be involved in a case from its earliest investigation
through to the actual trial. And she suggests that among
such people there were certain shared ideals of justice,
which meant that they tended to practice the gradual sifting out
at various stages of the case of those whom they deemed to be
truly culpable, truly criminal.
Those hanged were those who
stole for profit, who stole in a planned manner,
who were strangers, who failed to confess and
express remorse. And she argues that this
expressed what was fundamentally a religious attitude;
that all people are potentially sinful, that only some are so
hardened in evil that they are incapable of reformation.
Well, these are cases you can
read for yourself and debate next week.
So then discretion was widely
used, but nevertheless it should also
be emphasized that none of this leniency and clemency and
discretion could be guaranteed. The terror of the law was often
mitigated by justice and by mercy,
but that was at the discretion of prosecutors,
of neighbors, of jury men and judges,
and it wasn’t always forthcoming.
There was no ultimate guarantee
that only the most guilty would be sentenced to a flogging or
the hangman’s noose, and there’s also evidence that
in those difficult generations in the last years of Elizabeth
and the early years of the Stuarts,
something of a greater punitive harshness was being used in the
courts. A harshness greater than that
that was later to be the case. I mean more prosecutions,
less use of benefit of clergy, and indeed more executions.
In the final six years of
Elizabeth’s reign at the county town of Chelmsford in Essex they
were hanging twenty-eight– twenty-six–people a year in
public. In the 1620s,
seventeen a year were being hanged at Chester.
Between 1600 and 1610,
twenty-five a year were being hanged at Exeter down in the
southwest. It’s been estimated that
perhaps 600 plus people were publicly hanged every year in
the last years of Elizabeth and the early years of King James I.
And those are pretty high
figures by the standards of what we know about later periods,
especially the eighteenth and nineteenth centuries when most
counties saw only a handful of executions in each year.
To give you a comparison which
might be more meaningful, I read yesterday in the
Times that in Texas there have been 334 executions since
1997, which works out at an average
of almost twenty-six a year, the same figure as were being
hanged in Chelmsford, Essex in 1597.
But Essex had a population of
approximately 100,000; Texas has a population of 26
million. So in other words,
the rate per million in Texas of executions annually is just
over one, one per million. The rate in late Elizabethan
England was 150 per million. The point I’m making,
obviously, is that despite the many mitigating circumstances
which were used England still had a pretty bloody criminal
code and it was still pretty bloodily enforced;
on hardened evildoers certainly, but also perhaps
sometimes on those who simply didn’t have the position or the
connections, who were outsiders,
who were vagrants and could not escape the rigor of the law
through the use of discretion. We mustn’t exaggerate the
ferocity of the law, but equally we mustn’t forget
its very harsh realities in this period.
At its very heart were not only
certain social ideals of justice regarding who most deserved such
punishment, but also what’s been described
as “the logic of exemplary punishment.”
They believed that since they
could not deal with all crime they must make examples of some.
And they did on a scale which
by modern standards is shocking. There we can leave it.
Next time I’ll go on to look at
another aspect of order, the small-scale forms of
popular protest, demonstrations and riots which
one finds in this period.

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