Well, 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.
 
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,"
>
 
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.
 
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.
 
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.
 
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.
 
>
 
He was there training for the
clergy.
One could go on.
 
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.
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.
 
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.
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.
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.
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.
 
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.
There we can leave it.
 
Next time I'll go on to look at
another aspect of order,
the small-scale forms of
popular protest,
demonstrations and riots which
one finds in this period.
 
 
