The period 1650-1750 saw the longest, best-documented set of violent events recorded in the northern Assizes; this was an era of extreme socio-economic and political upheaval, in which the feudal hierarchy of medieval England was being replaced by the progressive mechanised system of the industrial revolution.
In evaluating the increase in the number capital felonies during the early modern period, one must take into consideration the various problems associated with the interpretation of statistics and records. A significant 'dark figure' of unrecorded crime is known to have existed in early modern England; one only has to study the verdicts in felony cases in the Norfolk and Suffolk assizes during the period 1734-37 to observe that thirty-seven per cent of all cases brought to court were acquitted, and that three per cent of all such charges received ignoramus status - that is, these cases were insubstantial to the point that they were dropped before they even reached court. This discrepancy between theory and practise gives an inaccurant picture of the true extent of criminal activity in post-medieval England. Additionally, the Middle Ages were notorious for the lack of information relating to the recording of crime. Somerset Justice of the Peace Edward Hext estimated during the 1590's that only one in five crimes in Somerset reached the attention of the authorities. Patrick Calquhoun, writing about crime in London in 1796, claimed that only ten per cent of all offences were actually reported. Many offenses were therefore unreported; hence the assumption that crime quadrupled during the early modern period is an erroneous one: it is far more likely that due to the combination of more deviant behaviour being criminalised, better access to information, and periods of social turmoil and moral panic,
better records were made about crime in the early modern period.
Despite the fact that capital crime was seen to be on the increase between 1600 and 1800, there was a fundamental reduction in the number of executions during this period. There was a growing leniency towards the individual following the great civil wars in 1642-8 and 1648; prior to these nationwide battles, the position of prisoners was far less democratic and egalitarian: the accused was incarcerated in a clandestine manner, and was prohibited from preparing his defence; he was examined, he was barred from seeing the evidence produced against him, he had no counsel, either prior to or during the trial, witnesses could not be summoned on the prisoner's behalf, nor could their aatendance in court be procured by the inmate.
However, improvements on the civil liberties of prisoners were made, following the civil wars: in 1695, anyone indicted for high treason or misprison of treason was permitted to see a copy of the charges five days before the trial, to have counsel, and witnesses testifying under oath. In 1702, an Act of Parliament was passed, entitling those accused of treason and felony to have sworn witnesses, in addition to those of the Crown. In 1708, the prisoner was allowed to retain a list of the witnesses and of the jury ten days prior to his trial.
There was additionally a widespread effort by the courts to mitigate the death sentence of many individuals: this was done in a variety of ways. One way in which to escape execution was to be granted benefit of the clergy, in which any cleric who was declared guilty by the courts would be handed over to the clergy courts for their nemesis. The church rarely imposed the death sentence, and was known to administer lighter punishments, the most popular being the branding of murderers on the base of their thumb, which was supposed to deter recidivism. In order to qualify for benefit of the clergy, the accused were required to read a specific passage out of the Bible; it soon became common practise for many illiterate offenders to memorise this passage of text, in order to escape exe
cution. The reading test was not being administered with any great stringency, and towards the end of the Seventeenth Century, it became the accepted norm to allow benefit of the clergy for known illiterates. Twenty-six per cent of those accused of lesser felonies, theft and manslaughter at the Devon assizes in the first ten years of the eighteenth century were spared the death penalty in this manner; just under twenty-six per cent of those tried for felony in Elizabethan Essex and almost twenty per cent of those accused in Middlesex between 1600 and 1625 were granted the benefit of the clergy. It was only possible to claim this protection of the church for a first offence, in order to discourage recidivism.
Another way in which capital offenders could escape the death penality lay through the administration of remands or pardons. A woman could escape capital punishment by claiming preganacy: in this case, her execution would be postponed until after her child was born, as condemning her to death beforehand would be seen as carrying out the murder of an innocent child; in most cases, the charges against the woman would be conveniently forgotten or pardoned after childbirth. S. Cockburn, examining records of the area around the Borough of London estimated that approximately thirty-eight per cent of women accused of felony during the early modern era claimed to be pregnant in order to escape the gallows; this figure does not in any way correspond with the childbirth rates of the time; although it would have been physically impossible for such a high proportion of felons to be pregnant, the courts accepted these mitigations.
Another escape route for capital offenders was to have their crimes dropped to lesser misdemeanors. One example is that in the case of larceny, there was a great distinction between what was defined as grand larceny, the theft of goods worth over a shilling, a capital crime, and petty larceny, stealing goods valued under that amount, usually punishable by whipping. Judges often deliberately undervalued the worth of stolen goods, so that offenders received lighter sentences. Additionally, inflation by the sixteenth century "removed such sense as there had ever been in such a division, and judges, jurors, and prosecuters alike seem to have been happy to have permitted the less dangerous thief to escape by altering the value of goods as given on the indictment, or by finding him or her guilty only to the value of a few pence."
Judges frequently ignored capital felonies or gave offenders a lighter, alternative punishment; the early eighteenth century saw the start of such felons being transported to labouring in the British colonies as a common practise. In the Norfolk and Suffolk assizes during the period 1734-37, twenty-one per cent of all felons faced transportation to the American colonies; of those transported, twenty-eight had been charged with larceny, three percent with highway robbery, seventeen per cent with burglary, and eight per cent with other misdemeanors.
Whipping was frequently imposed as an alternative to the death sentence; this particular punishment was particularly administered on women, the reason for this being that in the early modern period, men were expected to assume responsibility for their wives actions; therefore, a married woman who committed a capital offence was often considered to be less guilty than her male counterpart, and received a lighter punishment.
There were therefore a wide variety of means of escaping the gallows in early modern England, so much so that by 1750, only about ten per cent of felons were executed in the normal assizes. The logic behind punishments lay in the belief that sentences such as death, branding, shaming punishments and whipping would deter criminal behaviour and recidivism; there was also a belief in retribution, that offenders deserved to suffer for their crimes. However, analyses prove that a wide disparity existed between theory and practise, that towards the end of the early modern period, the number of capital punishments decreased significantly.
Between 1600 and 1800 the number of recorded crimes punishable by death quadrupled whilst the number of executions fell sharply. This phenomenal augmentation in the number of recorded capital crimes is due to many contributing factors: in times of moral panic, such as in the Puritanist period following the Civil Wars in 1642-6 and 1648, deviant behaviour which would be ignored in more stable periods was prosecuted, and a higher proportion of deviant behaviour than usual appeared in the court records; many crimes which had not previously been capital offences were made punishable by death. However, despite this fundamental growth of capital offences during the Early Modern period, the number of executions administered during this era declined tremendously. This apparent paradox can be accounted for by a multitude of factors, including the fact that the courts mitigated the death sentence by introducing circumstances such as benefit of the clergy and pregnancy. Judges often provided alternative punishments to felons, such as transportation or whipping for women, and judges often ignored capital felonies or gave felons lesser punishments. Therefore death was imposed much less than it should have been, had people been following the law of the time.
Bibliography
J. A. Sharpe; Crime in Early Modern England 1550-1750 ; Longman Group UK Limited; 1984
Alan Macfarlene; The Justice and the Mare's Ale ; Basil Blackwell Publisher; 1981
A. T. Carter; A History of the English Courts; Butterworth & Co., Ltd.; 1944
