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

(For a book length treatment of this topic, compare my e-book Markus Eder:At

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

the

handling of

capital

punishment

in

an

area, the Western Circuit, whose

predominantly

rural nature

was more

representative for England as whole

than

such

more urban

areas

close

to

the

centre as,

for example, London

and

Middlesex, Surrey and

Essex. The

of

geographical spread of the

increase

balanced picture than Chester.

Against this background,

large

population

of

six

basis

of

this

Circuit, about

one

the great

fifth

the

whole

population

early Modern England,

counties of

further, allowing

of single counties

tendencies

of

and

the Western Circuit should

for

this representativeness even

any study

several

a

fuller and

Essex,

or

more

as Surrey,

the

administration of capital

punishment in early study.

Modern

England

have

surfaced in

the

course of

this

1) Strong differences in punishment and indictment

patterns

to

more urbanized

English jurisdictions

2) Ever increasing numbers of executions and increasing

till passage of

transportation

act

of

3) Benefit of clergy as no privilege for

execution rate for

women

than

for

men

1718

men over

execution rate

women

despite higher

4) Greater overall

severity in

times

of crisis

if not counteracted

by

imperatives of state

5)War/peace as alternating catalysators for crime levels

6) Hierarchization between

7) Regional

and execution rates their punishment

capital crimes

categories

in

of crimes

and

and

punishment of

variability

incidence

1) Strong difference in English jurisdictions

2

punishment

and indictment patterns

to more urbanized

One result

of

this

study undoubtedly is, that

it

reveals the

tremendous

differences in

the patterns and

punishment of

capital

crime on

the Western

Circuit and more urbanized areas of early Modern England.

Assize, which was a

If

we

put

the

Bloody

very extraordinary

and somewhat uncommon event aside,

several

of these differences deserve

our special

attention.

First

of

all,

there

is

the

low incidence of

homicide. Recent

research

has

assumed for

the

early

Modern

England of

the

period 1600-1750 an

average

homicide rate of

4

per 100000 inhabitants, which

had

dropped from

about

7

in

about 1600

to

about

2

in

about 1750. 1 However, neither

the assumption of

such

high

homicide

rates

for early Modern England

nor

such

a

continuous

 

drop of

the

homicide

rate

is

substantiated by

my

research on the records of

the

Western Circuit. Quite

to

the

contrary, we

find

a

rise

in

the annual

minimum 2 homicide

1670-1679 to 1,2-1,3

its

rate from

for

the

previous

annual

level

about 0,8 per 100000 inhabitants from

period 1680-1709, before

it dropped

the

period

back

to

of

about

0,8

in

the

period 1710-1729. In

my

opinion, this discrepancy

to previous

research

might

very well

stem

from

the

fact,

that

this

previous research

has concentrated

perhaps too

much

on fragmentary evidence

representativeness for, predominantly rural early

Seventeenth and eighteenth century homicide legislation as the stabbing act

the stipulation

should be

the

so called

the Western Circuit, not seem execution rate for murder. 3

on

from

more urban areas

of

England lacking

as

a

Modern England

whole.

and

of the Waltham Black act,

that

murder attempts with

to

have

holds

its

had

true

firearms

on

the

least

punished capitally, in

turn, seemed

little effect

with

regard to

execution rate in homicide

Murder act

of

cases. 1752 which, despite

The same

intentions, does, at

an increase

in

the

to have effected

With

the

exception of high treason against

the

coinage

and,

perhaps, horse

theft,

non-clergyable property crime

likewise

was

far less frequently

indicted on the Western Circuit

the

theft, housebreaking and burglary were much higher on the Western

in more urbanized

than

in

the

more urban

areas

of

England. At

as

same

time, however, execution rates for serious

areas

like London, Essex

or

property offences

horse

Circuit than

Surrey. Only high treason

3

against

serious property crimes comparatively frequently indicted on the Western Circuit,

carried a

the coinage convicted in more urbanized jurisdictions.

the coinage,

which -as indicated

before-

was

one

of

the

few

lower execution rate than those suffered

by high traitors against

Moreover, with

serious

property crimes being

even

less frequently indicted

than homicide,

the

proportion of the

number of executions

for

homicide was

much higher than

it

was

the

case

in more urbanized

areas.

While the

proportion of executions for homicide (infanticide included) in late

seventeenth

and eighteenth

century Surrey

lay

at

about

9

per cent,

and while

in early

eighteenth century

property offences, about

happened

only

London

21

89

per cent of all executions per cent of all executions

or

took

place for

on

the Western Circuit

either for

murder, petit treason

infanticide. As a consequence, occured for property offences,

about three quarters

of all executions

compared to

88-89

per

cent

in

the

moral urban

areas of

London and

Surrey. 4

Although we

can not

be hundred per cent

certain on

this point, the

tendentially

rural character

of new legislation on the strictness

particular, the

house seems

the percentage of executions

at daylight.

property offences as

of

the Western

Circuit might

also

have limited the influence

from the

of verdict

and sentencing patterns. In

to robbery or larceny

legislation of 1691 with regard

have

exerted

no

in

to

This

strong influence on the

verdict patterns and

and

housebreaking

cases

of robbery, burglary

does not necessarily mean,

that execution rates for serious

been

robbery, burglary and housebreaking might not have

higher

after 1690 than before,

but

the reasons

for

this lie probably

rather

in

the

far

reaching economic and political

developments

discussed

in

chapter III

of

this work,

than

in

the

letters

of

the new legislation.

2)Ever increasing

passage of transportation act of 1718

number of executions and increasing execution

rate

till

Although

the number of executions might,

perhaps,

have

in

certain areas of

England been higher

in

the first

half

of

the

seventeenth

century

than

in

the

first

half

of the eighteenth

century, it would be inappropriate

to

assume a

continuous drop

the

Circuit of

in

executions over the seventeenth century. On

the Western

period 1670-1729

we

even

find,

despite the passage of

the

4

transportation act of 1718, a steady rise

in

the

absolute number of executions.

The

special

case

of

the

Monmouth rebellion

and

the

high pardoning rate

connected with

it aside,

the transportation

act

we even tendentially witness

of

1718

a steady

rise

in

the

till

the

passage of

execution rate. 5 In

the

decade 1720-1729 the execution rate admittedly declines, but

be

higher

statute, which then

words, juries who before

desirous to spare human lifes

verdicts, might

centage of full capital verdicts

that

full capital

it might

quite well

a

the case,

the transportation act

of

encouraged

juries to

pronounce

of

this

per centage

verdicts than before the passage

increasingly were commuted

into transportation. In other

had been

per centage of partial

higher

rendered a

most

of

the passage of the transportation act

by rendering a

high

passage of

in

the

statute

have

the expectation, that

after

the

per

these full

capital verdicts would

recognised

a higher

be

per

commuted into

centage of

transportation. As full verdicts

I

have indeed

the Western Circuit

in

the

period

after

1718 than before, jury behaviour of

on the above mentioned

kind

was

probably very

much

a

reality.

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

an equivalent to it, was theoretically

not

available

to

women,

this factually led to

nearly

no

discriminatory

treatment of the female sex. Several factors accounted

for

this. In cases

of

theft, juries tended

the theft

to „downrate“ the value of

the statute

of

fell

under

1623 and

the stolen

goods

could therefore

so far, that

be

punished by

mere

burning in

the

hand.

Alternatively, they also could downrate the value of

the

stolen

goods

so

far,

that

the

theft amounted to

no

felony

at

all, but

merely to petit

take

for women led to capital convictions, royal pardons tendentially ensured, that the

life of the convicted

If, nevertheless, the execution rate of capital convicted

we exclude the overproportionally

convicted male

they

that

larceny. This, too, ensured that

the few instances

females

where

no capital

conviction was to

place. In

non-availability of benefit

of clergy

were spared.

high

females

for

the

fact, that

-at

least

if

pardoning rate

54 per

due

many

Monmouth rebels- was with about

with about 52 per cent, this

is

cent

slightly higher than

women, if

for

men

to the

5

were brought to trial at all, were overproportionally often indicted for witchcraft and non-clergyable homicide as petit treason and infanticide. Crimes of that serious a

nature left little room for

offenders having

nearly all

than those for men. Tenderness to

to pardon, with

traitors, all pregnant female offenders provided the main reasons for this

benevolent treatment of women.

royal pardons, and the great

majority of female

With

committed such crimes

were therefore executed.

to

well

be

as

regard to

other crimes, pardoning rates for women tended

the female sex

as

the exception of petit

In

this context,

it

much higher the preparedness

is worth remembering, that

benefit of the belly

was

not

comparable

to benefit of clergy,

as

benefit of clergy

 

essentially

referred

to

the

seriousness of the

offence,

while

with

regard to

benefit of the belly

the

issue

at

4)Greater

by imperatives

overall

severity in

of state

hand

was female

pregnancy

times of internal

crisis if not counteracted

As becomes

very

clear

from

the lecture of preceding

of

punishment

tended

to increase

in times

of crisis.

chapters, the severity This is particularly

true with

regard to

such

crimes

as

high treason

against the

currency

and

desertion/illegally

wandering

around

as

soldiers

or

mariners. High treason

against

the currency was particularly seriously

punished during

the crisis

of

the

coinage in

the 1690s. The

same

holds true

for desertion/illegally

wandering around after the Monmouth rebellion of 1685, when deserting

 

soldiers/illegally wandering soldiers and mariners were

very severely dealt

 

with. This

rule of increased severity during crisis,

however, held

only

true,

if

after suppressed

majority of convicted

society

sections

overruling

imperatives of state

did not invalidate

it.

Time and

again,

armed insurrections the government felt unable to execute

high traitors,

through

as

excessive

it

feared

severity.

to alienate

large

of

the

5) War/peace

as

alternating catalysators for crime levels

and execution rates

A somewhat different

picture emerges with

regard to

times of official warfare,

when the economic

boom created

by

increased war

the

poor

the

temptation to secure their

living

time production reduced among by committing offences. Reduced

rates

of

serious property

crimes, in

turn

induced the

authorities to show

6

a greater prepareness towards granting

war periods were also marked by a

pardons for such offences. Consequently, lower execution rate.

Execution rates in

times

of

war

were

further

reduced by

the

fact,

that

the

state, being

in need of

troops for warfare

tended

to

offer pardons to convicted

felons in exchange for their

Demobilisation, on the other hand, unleashed thousands of then unemployed

warriors, quite

many capital convictions

property offenders.

officially declared wars. Troops` demobilisations after the Monmouth rebellion

entering the armed forces.

often

resorting to serious property crime. This,

and a high execution

by

no means

in

turn,

led

rate for capitally convicted limited to demobilisations after

This was

to

and

after

skirmishes

with Spain

during the

years

1727 had

the same effects,

although in the

case of the demobilzed royal

troops

after the

Monmouth

Rebellion,

execution rates for serious property offenders seem to have been somewhat

lower than during other demobilisation

periods. 6

6) Hierarchization between categories of crime and their punishment

If

non-clergyable capital

one

takes

a

look

at

the

pardoning

crimes, one

easily

rates for individual categories of

in mercy

recognizes

a hierachy

between

these

categories:

 

1)Crimes

against

god

and nature

as

sodomy

and

buggery

2)non-clergyable homicide

3)violent crime

against

4)violent

5) non-violent

a

crime

against

crime

against

person

a person`s

property

a

person`s

property

6) crime

against

the state

 

Sodomy, as

the

greatest challenge to the moral

order,

received

no

mercy at

all.

Next

in

severity

of

punishment

came

non-clergyable

homicide with an

overall execution rate dominated

of

about

82 per cent.

Within

this category, petit treason

with

an execution

rate

of

100

per

7

cent,

followed

by

murder

with

about

89

per cent,

and

infanticide

with

about

66

per cent.

 

Within the category

rape

and witchcraft,

violent

we

crime

determine

against a

person, which includes

about

execution

rate

of

robbery,

71 per

cent.

Within the spectrum of

an this crime category,

witchcraft

held

with

at

least

is unknown), the

per

The category

85

per

and

cent, possibly even

rape

violent

100

per

cent ( as

by

the

fate of

with

one

witch

71

highest execution rate, followed

with

about

crime

63

against

per cent.

a

robbery

property,

about

cent

person`s

comprising such

crimes

as arson,

burglary,

housebreaking

at

daylight, horse theft,

nocturnal

bull and

horse killing

as

well as housebreaking

with

intent

to destroy

a

wool machine,

held an execution

rate

of about

55

per cent.

Housebreaking

with

intent

to destroy

wool

machines, which only

saw

one

capitally

convicted and ultimately

executed

person, set aside, burglary

was

with

an

execution

rate

of

about

67

per

cent most

heavily

punished.

Arson

followed

suit

with

54

per cent,

while

horse

theft and

housebreaking

carried

execution

rates of

48,2 and

47 per cent respectively.

None

of

the

two

capital

convicts

for

nocturnal

bull and

horse

killing was actually

executed.

 

Non-violent capital

crimes

concerning

a person`s property

received

among

all

property crimes

against

individuals

the highest

amount

of

mercy.

A

mere

29

per cent

of

persons who

had

committed

either pickpocketing/secret

theft from

person, theft from

shops, theft

from

from

dwelling

Within

houses or nocturnal thefts

thefts

this crime category,

warehouses, theft were executed.

with

from rack

from

warehouses

an execution

rate

of

zero

per

cent

lightly punished, while

were theft from dwelling

 

house

carried

Pickpocketing/secret theft

from shop

29 per cent

a comparatively high

of

nocturnal

occupied with execution rates of about

execution

rate

from person,

respectively a middle ground within

39

per

cent.

theft

25 per cent,

from rack

21 per

and theft

and

cent

this crime category.

Even more mercy than

towards

those

having

committed

non-violent

capital

crimes against a

person` s

property, was

shown

towards

criminals

committing

capital

crimes against

the state.

21 per

cent

at

most

of

all

offenders

in

this crime

category

suffered

death. 7 Admittedly, there

were strong

8

variations

in pardoning rates within

 

this

crime

category. High traitors

against

the coinage and deserters/illegal

wanderers without an authorizing pass

were

subject

to

execution

rates

of

about

56

per cent

and

50 per cent

respectively. Thieves

about

armed

of royal property, too, experienced an execution rate of

no rioter

and

at

most

18,7

per

cent

of

33

per cent, while

insurrectionists were executed.

all

7) Regional variability in incidence and punishment of capital crimes

in

incidence and punishment of capital crimes. Hampshire and

Very clearly, there

also existed strong variations

the

Devonshire witnessed

regional

a

very

high

share

of theft

of royal

property. This was particularly

due

to

the

fact

that

in these

two counties were situated

the

dockyards of

Plymouth and Portsmouth. Cornwall

witnessed

an overproportionally high

number

of

indictees

for

high

treason

against the coinage,

while

in rural

Devonshire and,

in

particular,

Somersetshire

horse

theft

was somewhat

prevalent. Theft from shop was overproportionally often indicted in Wilteshire,

while

in

turn,

With

have stood

was

housebreaking with intent to destroy wool machines was exclusively indicted

Appearing disguised and with offensive

indicted

in Hampshire.

arms

strictness of sentencing in property cases,

on

the highway

in

Hampshire seems to

Wilteshire.

only

regard to

out, too.

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

author of

the

present work is somewhat less confident than Spierenburg,

that

nearly

all

murders

and manslaughters

were really discovered

and

could consequently

homicide

3) I consider

rates

1996), p.258.

be indicted. Therefore, I use the designation „minimum!

rate.“

it

given

do

utmost likely,

in his

not

book

that Emsley`s data on post-1750 murder execution

this assumption,

as

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

right

in

include infanticide. If I should be

there would indeed have occured

no

rise

in

the

execution rate for

murder on

the

Western Circuit

after the passage

of

the

Murder-Act of 1752.

4)Compare

for this

Beattie:

Crime

and

the

Courts in

England

(1986),

p.433,

table 8.6. and Andrea McKenzie: Tyburn`s Martyrs: Executions in England 1675-1775

(London, 2007), p.5 and p.70, endnote

14.

5) This

whole. Individual Assizes of the Western Circuit, particularly Dorsetshire, Cornwall

and

execution rate compared to the period 1700-1709.

6)This, contrary to

war

Army in the late Seventeenth Century”, in: War and Society, 15/2 (1997), 1-17.

is

the

general

tendency for the

Western Circuit taken

1710-1719 a

as

a

Somersetshire already

John

witnessed for the period

Child`s opinion, also

holds

decline in

to

the

the

true with regard

of 1672-1674. Compare for this John Childs: “War, Crime Waves

and the English

7)Due

to the impossibility to ascertain

the

precise

number of executed

Monmouth

rebels, this

is

the

maximum execution

rate

for

insurrectionary high

treason. Actual

figures might

even

be

lower.