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Capital Punishment in early modern England, 1670-1730 (Synopsis)

Markus Eder:At

(For a book length treatment of this topic, compare

my e-book

the Instigation of the Devil: Capital Punishment and the Assize in the early Modern England, 1670-1730, sold on the website of ebookguides4life for 7,50
Canadian Dollars)

The

central aim of this synopsis is to outline in an area, the Western Circuit, whose representative for England the centre as, large as whole

the handling of predominantly such more

capital rural urban Surrey one nature areas and fifth

punishment was close more to

than and

for example, London basis of of this

Middlesex,

Essex. The of the

population population

Circuit, about England,

whole

early Modern counties even of

and the great Circuit should for a fuller and Essex, or more

geographical spread of the six increase this representativeness

the Western allowing

further,

balanced picture than any study Chester. Against this background, punishment study. in early Modern several

of single

counties

as Surrey,

tendencies have

of the

administration the

of capital this

England

surfaced in

course of

1) Strong

differences

in

punishment

and

indictment

patterns

to

more urbanized 2) Ever

English jurisdictions and of for men of crisis if not counteracted by increasing 1718 men over women despite higher execution rate

increasing numbers of executions

till passage of

transportation

act

3) Benefit of clergy as no privilege execution rate for 4) Greater overall imperatives of women than for

severity in state

times

5)War/peace as alternating catalysators 6) Hierarchization between 7) Regional variability in categories incidence

for

crime levels and

and their

execution punishment

rates

of crimes and

punishment of

capital

crimes

2 1) Strong

difference in

punishment

and indictment patterns

to more urbanized

English jurisdictions

One

result

of this study undoubtedly is, that punishment of

it capital

reveals the crime on If

tremendous the Western Bloody

differences in the patterns and

Circuit and more urbanized areas of early Modern Assize, which was a several First of very extraordinary

England.

we put the

and somewhat our special

uncommon event aside, attention. Recent research has

of these differences deserve all, there is the early

the low incidence of Modern England of the

homicide. period had

assumed for

1600-1750 an dropped from

average about 7

homicide rate of 4 in such about high 1600 to

per 100000 inhabitants, which about 2 in

about 1750.1 However, neither Modern England

the assumption of continuous

homicide rates for early

nor such a

drop of the homicide rate is the

substantiated by

my research on the records of find a rise in the annual the period to my from much

Western Circuit. Quite to the contrary, we


2

minimum

homicide

rate from the

about

0,8 per 100000 inhabitants from before the it dropped

1670-1679 its

to 1,2-1,3 for annual

period 1680-1709, of about 0,8 in research has

back In

previous

level

period

1710-1729. stem

opinion, this discrepancy the on fact, that this

to previous previous from research more

might

very well

concentrated of

perhaps too

fragmentary evidence

urban rural

areas early

England lacking as a whole.

representativeness for, predominantly

Modern England

Seventeenth and eighteenth century homicide the stipulation of the Waltham Black should be the so on punished capitally, in

legislation as the stabbing murder to have holds its attempts had true with

act

and

act, that

firearms on the least

turn, seemed

little effect with regard to

execution rate in homicide cases. The same called

Murder act

of

1752

which, despite to

intentions, does, at an increase in the

the Western Circuit, not seem rate for murder.3 exception of high treason

have effected

execution With theft, the

against

the

coinage was

and,

perhaps, horse

non-clergyable property crime

likewise the

far less frequently areas of England. At as horse

indicted on the Western Circuit the same

than in

more urban

time, however, execution rates for serious

property offences

theft, housebreaking and burglary were much higher on the Western in more urbanized areas like London, Essex or

Circuit than

Surrey. Only high treason

3 against the coinage, which -as indicated beforewas one of the the few

serious property crimes comparatively carried a the lower execution rate than

frequently

indicted on

Western Circuit, against

those suffered

by high traitors

coinage convicted in more urbanized jurisdictions. with serious property crimes being of even less frequently indicted for homicide was

Moreover, than much

homicide, the proportion of the higher than it was the case

number

executions

in more urbanized (infanticide

areas. While the in late and while place seventeenth in early for

proportion and

of executions for homicide

included) per cent,

eighteenth

century Surrey lay at about 9 London

eighteenth

century

89 per cent of all executions took 21 per cent of all executions on or

property offences, about happened only

the Western Circuit a consequence,

either for murder, petit treason

infanticide. As occured for

about three quarters of all executions

property offences, London and Surrey.4

compared to 88-89 per cent in the

moral urban

areas of

Although we can not be hundred per cent certain on this point, the rural character of the Western Circuit might also and have limited sentencing

tendentially the influence

of new legislation on the strictness

of verdict

patterns. In from the

particular, the legislation of 1691 with regard house the seems to have exerted no strong

to robbery the

or larceny

influence on

verdict patterns and housebreaking

percentage of executions

in cases of robbery, burglary and

at daylight.

This does not necessarily mean,

that execution rates for serious been rather in

property offences as higher in the

robbery, burglary and housebreaking might not have the reasons political the for this lie probably discussed

after 1690 than before, but far reaching economic and of this work, than in

developments of

chapter III

letters

the new legislation.

2)Ever increasing

number of executions and increasing execution

rate

till

passage of transportation act of 1718

Although

the number of executions might,

perhaps, have in seventeenth be

certain areas of century than in to the

England been higher in the first half of the first half of the eighteenth drop

century, it would

inappropriate

assume a

continuous

in executions over we

the seventeenth century. On even find,

the Western the

Circuit of the period 1670-1729

despite the passage of

transportation act of 1718, a steady rise


The special case of the

in the and

absolute the high

number

of

executions. rate

Monmouth rebellion

pardoning

connected the

with it aside, we even tendentially

witness

till the

passage of

transportation

act of 1718 a steady rise

in the execution rate.5 In the it might quite well a

decade 1720-1729 the execution rate admittedly be the case, that the transportation act

declines, but encouraged

juries to

pronounce of this other

higher

per centage of full capital increasingly were

verdicts than before the passage commuted into transportation. In

statute, which then

words, juries who before

the passage of the transportation by rendering a the the

act had been

desirous to spare human lifes

high per centage of partial have rendered that a higher these per full

verdicts, might after the passage of centage of full capital verdicts capital verdicts would recognised the was a higher in

statute

expectation,

most of

be commuted into per centage of

transportation. As on

I have indeed Circuit kind in

full verdicts

the Western

period after 1718 than before, jury behaviour of probably very much a reality.

the above

mentioned

3)Benefit

of clergy

no privilege for

men over

women

despite a higher

execution rate for women than for men

Although till 1693 benefit of clergy, or not

an equivalent to nearly no for

it, was theoretically discriminatory this. In cases of goods so far, that be punished by value of

available to women, this factually led to of the female sex. Several

treatment

factors accounted

theft, juries tended the mere the theft fell

to downrate the value of the statute of 1623 and

the stolen

under

could therefore

burning in the hand.

Alternatively, they also could downrate the theft amounted to that no felony at

stolen goods so far, that the

all, but was to

merely to take for life

petit larceny. This, too, ensured

no capital

conviction

place. In the few instances where women

non-availability of

benefit

of clergy

led to capital convictions, royal pardons tendentially ensured, that the females were spared. convicted females for the -at least if

of the convicted

If, nevertheless, the execution rate of capital we exclude the overproportionally high

pardoning rate 54 per

many than they

convicted that for

male Monmouth rebels- was with about

cent

slightly higher

men with about 52 per cent, this is due

to the fact, that women, if

5 were and brought to trial at all, were overproportionally often indicted for witchcraft

non-clergyable homicide as petit treason and infanticide. Crimes of that serious a for royal pardons, and the crimes were great majority of female With much the regard to higher

nature left little room offenders having

committed such

therefore executed. to be

nearly all other crimes, pardoning rates for women tended than to those for men. Tenderness to the female sex as

well as

preparedness

pardon, with the exception of petit the main reasons for this

traitors, all pregnant female offenders provided benevolent treatment of women. was In this context,

it is worth remembering, that

benefit of the belly essentially

not comparable

to benefit of clergy, as benefit of clergy offence, pregnancy while with regard to

referred to the seriousness of the the issue at hand was female

benefit of the belly

4)Greater

overall

severity in

times of internal

crisis if not counteracted

by imperatives

of state

As

becomes

very

clear

from

the

lecture of in times

preceding of crisis.

chapters, the severity This is particularly currency and

of punishment true with

tended

to increase crimes around

regard to such wandering

as high treason as soldiers or

against the

desertion/illegally against the

mariners. High

treason of

the currency was particularly the 1690s. The same

seriously holds true

punished during for

the crisis

coinage in

desertion/illegally

wandering

around after the Monmouth rebellion of

1685, when deserting were very severely however, held Time and dealt only true,

soldiers/illegally wandering soldiers with. This if after

and mariners

rule of increased severity during

crisis,

overruling imperatives of state suppressed armed insurrections

did not invalidate it. the as

again, the

government felt unable it feared to

to execute large

majority of convicted sections of society

high traitors, through

alienate

excessive

severity.

5) War/peace
A

as

alternating catalysators for crime levels


with regard war by to times

and execution rates


of official warfare, among

somewhat different picture emerges boom created by

when the economic the rates poor of

increased

time production reduced committing

the temptation to secure their serious property crimes, in turn

living

offences. Reduced show

induced the

authorities to

6 a greater prepareness towards granting a pardons for such offences. Consequently,

war periods were also marked by Execution rates in

lower

execution rate. reduced by to offer the fact, that the

times of war were

further tended

state, being in need of troops for warfare felons in exchange for their

pardons to convicted

entering the armed

forces. of then unemployed in turn, led to convicted after

Demobilisation, on the other hand, unleashed thousands warriors, quite often resorting to serious and a high no

property crime. This,

many capital convictions

execution means

rate for capitally

property offenders. This was by officially and after

limited to demobilisations after the

declared wars. Troops` demobilisations

Monmouth rebellion
the same effects,

skirmishes with Spain during the years 1727 had troops after the

although in the case of the demobilzed royal

Monmouth

Rebellion,

execution rates for serious property offenders seem to have been somewhat other demobilisation periods.6

lower than during

6) Hierarchization between categories of crime and their punishment

If

one

takes a look at the

pardoning easily

rates

for

individual a

categories

of

non-clergyable capital between these

crimes, one

recognizes

hierachy

in mercy

categories:

1)Crimes

against

god

and nature

as

sodomy

and

buggery

2)non-clergyable homicide 3)violent 4)violent crime crime against against a person a person`s a property property

5) non-violent 6) crime

crime

against

person`s

against

the state

Sodomy, as the greatest challenge to the all. Next in severity of punishment came

moral

order,

received

no mercy at

non-clergyable

homicide with an

overall execution rate of about 82 per cent. Within this category, petit treason dominated

7 with 89 an execution rate of 100 per per cent, and infanticide violent we cent, followed 66 per by murder with about

with crime

about against a an

cent. robbery, 71 per with one at

Within the category rape cent. least is per The and witchcraft,

person, which includes rate of about held

determine this

execution category, per

Within the spectrum of 85

crime 100

witchcraft

per cent, possibly even

cent ( as the fate of by robbery with

witch 71

unknown), the cent and rape

highest execution rate, with about 63 against per a

followed cent. person`s at

about

category

violent

crime

property,

comprising theft,

such

crimes bull and wool with

as arson,

burglary, as

housebreaking well as

daylight, horse with 55 intent

nocturnal

horse killing

housebreaking

to destroy a Housebreaking capitally was with Arson housebreaking None of the an

machine, intent

held an execution to destroy wool

rate of about machines, which person, set cent most while

per cent. saw one

only aside,

convicted execution followed carried two

and ultimately rate suit execution of with

executed

burglary

about 54

67 per per cent,

heavily horse

punished. theft and

rates of 48,2 and for nocturnal

47 per cent respectively. bull and horse

capital

convicts

killing was

actually

executed. Non-violent capital all mere property crimes 29 per cent of crimes against concerning a person`s property the highest received of among mercy. A

individuals

amount

persons who had shops,

committed theft from

either pickpocketing/secret warehouses, theft were executed. were with an execution house from

theft from dwelling Within rate

person, theft from

houses or nocturnal thefts this crime category, thefts

from rack from

warehouses

of zero

per

cent

lightly punished, while execution rate of 39

theft per

from cent. from

dwelling

carried

a comparatively high

Pickpocketing/secret theft from 29 shop per cent occupied with

from person,

nocturnal

theft

rack 21 per

and

theft and

execution rates of about ground within having

25 per cent,

cent

respectively a middle towards person` s those

this crime category. non-violent capital committing offenders

Even more mercy than crimes against a capital in

committed shown cent

property, was 21 per

towards at most there

criminals of all

crimes against category

the state. suffered

this crime

death.7 Admittedly,

were strong

8 variations against were in pardoning rates within this crime category. High traitors an authorizing pass

the coinage and deserters/illegal subject to execution rates of

wanderers without about

56 per cent and

50 per cent

respectively. Thieves about armed 33

of royal property, too, experienced an execution rate of and at most 18,7 per cent of all

per cent, while no rioter

insurrectionists were executed.

7) Regional variability in incidence

and punishment of capital crimes

Very

clearly, there

also existed strong

variations

in

the

regional witnessed due of number

incidence a to very the

and punishment of capital crimes. Hampshire and high share of theft of royal fact that in these two

Devonshire

property. This was particularly the dockyards high in rural

counties were situated an

Plymouth and Portsmouth. Cornwall of indictees for high treason

witnessed

overproportionally coinage, horse while

against the Somersetshire

Devonshire prevalent. while in

and, in

particular,

theft

was somewhat in Wilteshire,

Theft from shop was overproportionally to destroy wool

often indicted

housebreaking with intent

machines was exclusively indicted arms on the highway in

Wilteshire. Appearing disguised and with offensive was only indicted in Hampshire.

turn, With

regard to strictness of sentencing in property out, too.

cases,

Hampshire

seems

to

have stood

9 endnotes to synopsis: 1) Compare for this Pieter Spierenburg: A History

of Murder: Personal Violence in

Europe from the Middle Ages to the Present .(Cambridge, 2008), p.107, John Beattie : Crime and the Courts in England, 1660-1800 (Princeton, 1986), p.108.
2)The that could author of the present work is somewhat less confident nearly all murders and manslaughters Therefore, I use were the than Spierenburg, and

really discovered designation minimum!

consequently rate.

be indicted.

homicide

3) I consider it utmost likely, that rates as given in his book

Emsley`s

data on

post-1750

murder execution

Crime and Society in England, 1750-1900 (London,


right in rate this for assumption, murder on

1996), p.258. do not there the

include infanticide. If I should be no rise of in the the

would indeed have occured

execution

Western Circuit after the passage

Murder-Act of 1752. England.....(1986), p.433, 1675-1775

4)Compare table 8.6.

for this Beattie: Crime and the Courts in and Andrea

McKenzie: Tyburn`s Martyrs: Executions in England

(London, 2007), p.5 and p.70, endnote 14. 5) This is the general tendency for the Western Circuit taken as a

whole. Individual Assizes of the and

Western Circuit, particularly Dorsetshire, Cornwall decline in the

Somersetshire already witnessed for the period 1710-1719 a rate compared to the period 1700-1709. John Child`s opinion, also John holds true with

execution

6)This, contrary to war

regard

to

the

of 1672-1674. Compare for this

Childs: War, Crime Waves

and the English

Army in the late Seventeenth Century, in: War and 7)Due to the impossibility to ascertain the

Society, 15/2 (1997), 1-17.


number of executed for insurrectionary high

precise rate

Monmouth

rebels, this is the maximum execution figures might even be lower.

treason. Actual

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