Crime and the Law in Early Modern England


Mural on the wall of St Thomas the Martyr, Salisbury / Wikimedia Commons


Dr. Wrightson examines the problem of order in early modern society, focusing on crimes of violence and upon property crime. In examining violence, he notes the existence of special cases geographically (the borderlands) and socially (aristocratic violence) before looking at the lower (and gradually declining) levels of homicide in general. He then considers property crime, distinguishing the various categories of theft and the manner in which cases were brought to, and handled in, the courts. The late sixteenth and early seventeenth centuries witnessed a peak in prosecution, but while the law could be harsh and bloody in meting out punishment, it was also characterized by discretionary extension of mercy. Interpretations of the use of such discretion are compared and assessed — as are the limits that existed on its use in a society that believed in the deterrent effect of “exemplary punishment.”


Lecture by Dr. Keith Wrightson / 10.22.2009
Randolph W. Townsend, Jr. Professor of History
Yale University

The Question of Violence

The Night Watchman, an Arrest. A young man, leaning against a railing and evidently drunk, is being arrested by a nightwatchman. / Museum of London

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.

Examples

“…Armstrongs and Elliots! And how should they forget The pride their fathers gathered round the roving, reckless names? Can’t you hear the horses neighing, and the riders jesting yet Above a thousand driven steers and fifty farms in flames?…” (W. G. Ogilvie in “The Land We Love” 1909) Border Reiver families / Wikimedia Commons

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,” [laughter] 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.1 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.

The taking of Guy Fawkes (Sir Thomas Knyvet wearing the breastplate), by Henry Perronet Briggs / Laing Art Gallery

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.

Responses

Portrait of Sir John Foster, portrait by Gilbert Stuart, 1790 / Nelson-Atkins Museum of Art

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. [Laughter] He was there training for the clergy. One could go on.2

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.

Homicide

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.

17th century street brawl in London / From The Streets of London through the Centuries, by Thomas Burke

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.

Property Crime: Capital and Non-capital, Clergyable and Non-Clergyable

Wikimedia Commons

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.

Incidences

18th century illustration of perjurer John Waller pilloried and pelted to death, 1732 / The Newgate Calendar

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.

Responses

Portrait of Geroge Herbert by Robert White / National Portrait Gallery, London

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.

Essex in 1600 / Wikimedia Commons

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.

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