Between 1600 and 1800 the number of crimes punishable by death quadrupled whilst the number of execu Between 1600 and 1800, the number of recorded capital felonies in England augmented dramatically, whilst the proportion of executions dropped tremendously. How could these fluctuations and discrepancies in the law be accounted for? Why was there this pattern of punishment and what was the logic behind it? This are a multiplicity of factors which the modern criminologist must take into account, when studying the phenomenal rise in capital crimes during the early modern period.
The whole concept of criminal activity is a dynamic and constantly changing one: each generation evaluates and reassesses what is considered to be socially acceptable behaviour, and what is perceived to be deviant activity. One such example is that in the early nineteenth century, many public misdeameanors against property, such as breaking and entering, setting fire to a haystack, and defacing Westminister Bridge became crimes became punishable by death. This act legitimising the administration of the death penalty for a greater variety of criminal activities remarkably influenced the number of capital offences being brought to court.
Another component that contributed to the rise in crimes punishable by death is that there were many social upheavals during this period, such as the Civil Wars between 1626-40 and 1646-51; in times of moral panic, deviant behaviour which would be ignored in more stable periods were prosecuted, and a higher proportion of deviant behaviour consequently appeared in the court records. Lord Macaulay, investigating the widespread violence in England during the reign of Charles the Second, quoted, "No traveller ventured into that country without making his will…
The irregular vigour with which criminal justice was administered shocked observers whose life had been passed in more tranquil districts. Juries, animated by hatred and by a sense of common danger, convicted housebreakers and cattle stealers with the promptitude of acourt martial in a mutiny; and the convicts were hurried by scores to the gallows. " Similarly, Douglas Hay, studying on the county of Lancashire, concluded that the emergence of a Puritan regime following the Civil Wars accompanied a 156 per cent rise in felonies during these periods of social instability.
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.