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."

I

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 porHow tion of the criminal law bear equally upon all men.' 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).

mit murder once with no other punishment than that of having M branded on the brawn of his left thumb, and if he was a clerk in orders he could, till 1547, commit any number of murders apparently without being branded more than once."

The passionate blow unintentionally causing death was probably too common, and seemed too highly natural among the higher classes, to be socially regarded as criminal in those days of unrestrained temper. It was simply a misfortune-an unfortunate accident. When the laboring classes were tied to the soil, the master who killed his serf in a fit of anger was certainly very far from being thought a criminal. So long as the social mind confused mere homicide with wilful murder, it was not ready to punish, or at any rate not to punish severely, the revered clergy or any member of the governing classes for such an act. Naturally the weight of the upper orders went to maintaining this good old custom of practical immunity. It was good not to be a criminal, and hang for it. But with the laboring masses all was very different. They should have learnt by long centuries of oppression to curb their tempers and not strike deadly blows. It was not good for society to let them get into so bad a habit. Consequently, the low-born, ignorant man-slayer paid with his life for the life he had taken. But when knowledge of reading became diffused among the common people-how then? The middle classes were attaining to power. People were thinking more clearly and intelligently. The upper classes had become discredited. Murder was distinguished from homicide, and the law was made equal for all men. Every murderer was henceforth (in theory at least) a heinous criminal, and his punishment was death.

1 1 Stephen, i, 463-4.

222

Prevalence of Serious Crime

CONCLUSION

England in the sixteenth century had great need of strong law, strongly enforced against all men, and this is what her Tudor sovereigns gave her. But all the great nations of Europe, and not England alone, then felt the need of a dictator. It was an age of great religious, political, intellectual and social upheaval, when the old feudal state was passing into the modern nation. Everywhere we find concentration of power in the hand of a despotic and often of an absolute monarch, strong enough to hold the nation firmly together and crush the growing forces of anarchy and confusion. It was a period of rapid growth and of very greatly increased crime and criminals. In England this flood of criminality largely took the direction of acts:

1. Against the life and person of the king: treasons, libels, etc.

2. Against national unity and the majesty of the law: statutes of maintenance and livery, etc., for the suppression of the anarchic feudal baronage and their followers, were now first enforced.

3. Against the established religion: heresy, præmunire and other laws, new and old.

4. In violation of the new laws, making justice more equal for all men, by excluding many serious crimes from benefit of clergy.

The criminal law was terribly severe in Tudor times, and punishments were largely enforced. Out of 387 persons presented for trial in a single county, Devonshire, in one year (1598), 74 were hanged. This is not far from one-fifth of those presented. The amount of what was regarded as very much greater serious crime seems to have been great than at present, in proportion to the population.

Does this negative the idea that crime increases as society develops to a higher stage of civilization, and that such in

is possibly a necessary factor in upward social progress-new criminal laws safeguarding new growth?

Not at all. The facts support the theory, for they show a very large increase in the amount of serious criminality, resulting from the operation of new laws or of old laws now first successfully enforced, at a time of rapid growth, when the English nation was at length entering into, taking possession of, and safeguarding that larger life, truer liberty, more strong and equal justice, for which it had long been preparing.

Social progress is not regular and equal, year by year, century by century. It comes by leaps and bounds-a sudden development, an almost fierce expansion, followed by a long period of quiescence or seeming retrogression, a time of silent preparation. Like a crustacean, shedding its old shell, which in a few hours seems ridiculously small, it expands rapidly for a brief season until the new sheathing hardens round it, and then for a year it stores its powers, preparing for another crisis, another period of apparently sudden growth.'

The sixteenth century, in England, with its greatly increased criminality, followed upon a long period of moral degradation, corruption and intimidation of justice, and of decreasing crime. While the new feudalism was triumphant there were but few statutes creating new criminal offences, and most of these could not be enforced. In the seventeenth century we reach another period of violent upheaval and civil war, when but little was added to the criminal law, and consequently there were but few new crimes in England. But was there more crime in the sixteenth century than in

1 Criminal law is in some respects like the crustacean's shell. It hardens round the nation and safeguards the social life, but in time it becomes too small and must be broken through and extended to permit new growth, while casting a more ample protecting shield around the larger life.