216

Equalizing Justice

though all the felonies were originally subject to this saving clause.'

As late as the reign of Henry VII. there were apparently but two forms of felony excepted from benefit of clergy— namely highway robbery and wilful burning of houses. In 1496, a statute, 12 Hen. VII., C. 7, took away this privilege from laymen "prepensedly murdering their lord, master or sovereign immediate" (thus committing petty treason); giving as a reason that "many and divers unreasonable and detestable persons, lacking grace, wilfully commit murder"

"in trust to eschew the peril and execution of the law by the benefit of their clergy."3 This was the first of a series of statutes which, during the next century, made justice more equal in the land, and must have largely increased the number of criminals. In 1512, persons committing murder in churches, on highways, etc., were deprived of clergy. In 1531, petty treason, "wilful murder with malice prepensed," robbing churches or other holy places, certain other kinds of robbery, and some forms of arson, were declared non-clergyable for all laymen. Clerks in orders, guilty of these crimes, were to be imprisoned for life, unless -note how easily they escaped punishment even yet-" they could find two sureties in £20 each for their good behaviour." In 1536, piratical offences were excluded from clergy. In 1547, benefit of clergy was taken away in all cases of murder, certain cases of burglary and housebreaking, highway robbery, horse stealing and robbing churches.? In 1565 "felonious taking of money, goods, or any chattels, from the person of any other, privily without his knowl

1

5

1 Stephen, i, 463. However, the Church did not always interfere to save even clerical offenders from severe punishment at the hands of the temporal courts. See Traill, ii, 475.

edge," was excluded from benefit of clergy.

The courts

2

interpreted this to mean above a shilling in value.' In 1576, any manner of rape or burglary" was declared "without any allowance of the privilege of clergy;" but the sections of this statute relating to burglary were very unskillfully framed. Abduction and forced marriage of heiresses was made a simple felony, with benefit of clergy, which must have practically negatived the law, by 3 Hen. VII., c. 2.3 This offence seems to have been regarded as quite in the natural order of things. 39 Eliz., c. 9, 1597, declared former statutes " insufficient," and decreed the death penalty without clergy.

From this legislation it is evident that the severity of the criminal law was greatly increased under the Tudors, for the terrible laws which had hitherto reached, for the most part, only the utterly illiterate and low-born, were now to be applied to the punishment as criminals of the educated, the powerful, the priestly classes of the nation, as well as to all men who for some slight knowledge of reading had been classed among the clerks, or servants of the Church. But these statutes were so special and so variously worded that many loopholes still remained through which men could plead and obtain benefit of clergy. In this way, doubtless, many malefactors continued to escape the just reward of their deeds."

To sum up this change in the laws: By the close of the sixteenth century death was the penalty decreed for the following crimes whether the offender could read or not: 18 Eliz., C. 4. * i8 Eliz., C. 7

Also 4 and 5 Ph. and Mary, c. 8.

* See Pike.

5 Women, not being eligible for holy orders, could not plead benefit of clergy. Mark the inequality of justice.

"This evil was not remedied until (3 Will. and Mary, c. 9, § 2), 1691, and (1 Anne, Stat. 2, c. 9). As the number of those who could plead benefit of clergy increased, the crimes to which this privilege extended became fewer and fewer.

218

Sturdy Rogues and Vagabonds

High treason, petty treason, piracy, murder, arson, burglary, housebreaking and putting in fear, highway robbery, horse stealing, stealing from the person above the value of a shilling, rape and abduction with intent to marry. For all persons "who could not read, every kind of felony, including manslaughter, every kind of theft above the value of a shilling, and all robbery were capital crimes.'

Of how this system worked in practice we have but scanty evidence. It is probable that serious crime was very prevalent in the country districts, but not nearly so common in the cities. In 1514 the royal treasure-wagons were attacked and robbed upon the road, and eighty men were executed for the crime. The disorder and suffering of the times, the large amount of unemployment, created a great multitude of vagabonds and idle rogues, whom the oftrepeated penal statutes charge with "contynuall theftes," "robberyes and all evill actes and other mischiefs;" driven to such actions often, as the Act of 1533-4 declares, by their "myserye and povertie." Whether from public sympathy for such unfortunates, or for some other reason, the terrible penalties against vagabonds were very negligently enforced, as the statutes themselves bear witness. Thus the preamble to 1 Edw. VI., c. 3, 1547, states that former laws had accomplished almost nothing for the suppression of vagrancy, because of the "folishe pitie and mercie of them which should have seen the godlie Lawes executed." It is very doubtful whether mere vagabondage can be considered a crime in that age. In the cities - London for examplethere does not seem to have been a very great amount of serious crime. A fearful murder, like that of Arden of Feversham (1551), created, apparently, just as much excitement as it would to-day. No criminal statistics of convictions or executions were kept till long afterward. But many of the 1 Stephen, i, 467.

depositions and other records of the courts of Quarter Sessions, held at Exeter Castle, have been preserved. They begin in 1592.

"At the Lent Assizes of 1598 there were one hundred and thirty-four prisoners, of whom seventeen were dismissed with the fatal S. P., it being apparently too much trouble to write sus. per. coll. Twenty were flogged; one was liberated by special pardon and fifteen by general pardon; eleven claimed benefit of clergy, and were consequently branded and set free." "At the Epiphany Sessions preceding there were sixty-five prisoners, of whom eighteen were hanged. At Easter there were forty-one prisoners, and twelve of them were executed. At the Midsummer Sessions there were thirty-five prisoners and eight hanged. At the Autumn Assizes there were eighty-seven on the calendar and eighteen hanged. At the October Sessions there were twenty-five, of whom only one was hanged. Altogether there were seventy-four persons sentenced to be hanged in one county in a single year, and of these more than one-half were condemned at Quarter Sessions." *

Hamilton believes there was a special crusade against criminals in Devonshire at this time; but if each of the forty English counties averaged twenty executions in the year, or a little more than a quarter of the number of capital sentences in Devonshire in 1598, this would make a yearly average for all England of eight hundred criminals who paid the death penalty for their offences. The population of the country at this time was about 4,000,000, and it is quite possible that one in every 5,000 of the inhabitants was sent to the gallows every year. At all events, the number was notoriously very great. As Coke writes in the conclusion of his Third Institute: "What a lamentable case it is to see so many Chris

'Hamilton, History of Quarter Sessions, pp. 30-1, compiled from Exeter Records.

220

Murder and Homicide

tian men and women strangled on that cursed tree of the gallows, insomuch as if in a large field a man might see together all the Christians that but in one year throughout England come to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart to bleed for pity and compassion." Coke points out three remedies: Education, laws to set the idle on work, and "that forasmuch as many do offend in hope of pardon, that pardons be very rarely granted." Evidently there had been a very great change since the fourteenth and fifteenth centuries, when the great lords overawed or corrupted the courts of justice for the protection of their guilty followers, and the ecclesiastical courts shielded another large section of Englishmen from punishment as criminals.

Murder. - The history of the death penalty for murder well illustrates this change. It was not until Tudor times that a clear legal distinction was drawn between murder and homicide, and "unlawful killing with malice aforethought" was excluded from benefit of clergy, thus making that portion of the criminal law bear equally upon all men.' How necessary was this change which the increasing intelligence and moral sense of the nation demanded, a few facts will clearly prove, but it must have largely increased the number of serious criminals.

"Till 1487 any one who knew how to read might commit murder as often as he pleased, with no other result than that of being delivered to the Ordinary to make his purgation, with the chance of (its) being delivered to him ‘absque purgatione.' That this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. Even after 1487, a man who could read could com'The statutes which by degrees intraduced this important change are: 12 Henry VII., c. 7 (1496), which applied to petty treason; 4 Henry VIII., c. 2 (1512); 23 Henry VIII., c. 1, §§ 3 and 4 (1531); 1 Edw. VI., c. 12, § 9 (1547).