English Legal History and its Materials

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The broad powers of juries, judges, and the king to individualize the administration of criminal justice in England supports Beatty’s assertion that capital punishment was only intended to be applied to exemplary cases, despite its broad statutory applicability. Discuss.

I. Introduction

Though capital punishment was ostensibly widely applicable in English criminal trials, it was not intended to be used as widely as it could be and juries and judges took responsibility for ensuring that it was only used in exemplary cases as a deterrent. Society widely understood the death penalty as a deterrent which was not actually warranted in most capital cases. English society viewed criminal behavior as the result of a long descent into immorality, corrected too late. Consequently, sparing use of capital punishment was intended to deter, not execute, those who might still be saved. It was the responsibility of juries and judges to determine which cases truly merited capital punishment and to then use their powers to ensure that only those defendants were executed.

II. Purposes of Capital Punishment

Beatty argues that the reason so few capital defendants were executed was the belief that “men who committed the most serious offenses had been led to that by a gradual corruption of their morals… eventually reach[ing] a point at which they were beyond redemption.” But because society held “the hope that men might be saved by chastisements,” the purpose of the death penalty was not to execute every eligible defendant. Rather, “the value of public hangings… was the reminder of what eventually lay in store for those who strayed from the paths of duty and obedience.” Thus, it was the responsibility of the criminal justice system to determine which of the many eligible defendants should be executed as a deterrent to the potential criminals who might yet be saved.

III. The Criminal Justice System’s Tools to Mitigate Capital Sentences

The criminal justice system was well-equipped to make the kind of case-specific determinations necessary to mitigate the death penalty in most cases. Indeed, this ‘flaunting’ of criminal statutes was so ingrained and institutionalized that it was clearly not a bug, but a feature. For instance, Beatty recounts a judge instructing a jury that though “they must find the prisoner guilty [of theft]… they would doe well to consider of the value [of the stolen goods].” Because theft was only capital when the stolen items met a certain value threshold, and the jury had to determine that value, this instruction essentially asked the jury to find the defendant guilty of a lesser-included non-capital offense. This practice was known as ‘pious perjury’ and it did not have to be at the insistence of the judge. Because up to a third of jurors had previously served on a jury and juries were seated for more than one case, the jury’s familiarity with the law helped enable mitigation.

Pious perjury was only available where a severe ‘unclergyable’ offense included a lesser ‘clergyable’ offense. Clergyable offenses were those still subject to the ‘benefit of the clergy’, a legal fiction which implicitly acknowledged the conditional nature of capital punishment in England. Clergymen were tried in separate ecclesiastical courts which often sentenced defendants only to penance. Because few people besides clergymen were literate, a defendant identified themselves as clergy simply by reading a bible passage. This allowed any literate defendant to escape a criminal trial. Furthermore, because the same bible passage, Psalms 51, was almost always used, illiterate defendants who had memorized the passage could also claim benefit of the clergy. This defense was widely-recognized available to any first-time defendant, eventually becoming so wide-spread that some serious offenses were deemed unclergyable, creating the need for pious perjury.

Judges also played a role in mitigating the broad applicability of the death penalty by exercising their “considerable discretionary power to reprieve a convicted offender and recommend him for a royal pardon.” Beatty speculates that reprieval after conviction of a capital crime was meant to ensure that the defendant felt the full weight of the consequences of their actions and hopefully inspire them to leave behind their life of crime. This mitigation power also became wide-spread to the point of being institutionalized, “[b]y the late seventeenth century pardons had become a fundamental element in the administration of the criminal law.”

Women were more frequently the subject of mitigation than men, in capital cases in Surrey between 1660-1800, juries were twice as likely to hand down a partial verdict. There was also a type of reprieve available only to female defendants, “pleading her belly,” where the defendant would be examined by a “jury of matrons” to determine if she was pregnant. If she was, she would be jailed until she gave birth. After the birth, the defendant was technically supposed to be executed, though Beatty speculates that ultimately “a reprieve granted for pregnancy was likely to result in some form of pardon.”

IV. Conclusion

The fact that mitigation occurred is not, on its own, sufficient to prove that capital punishment was not intended to be applied as widely as it could be. After all, mitigation (such as jury nullification) still occurs today in the US and there is no wide-spread understanding that our criminal penalties are not meant to be enforced. But we have two reasons to believe that capital punishment in England was not intended to be applied widely, despite its prevalence in criminal statutes. First, mitigation tools were used so commonly; of all guilty verdicts handed down by Surrey juries in capital cases between 1660-1800, almost half were only partial verdicts, probably to allow the defendant the benefit of clergy. Of those who were convicted by the jury of a capital offense, over half of all men and 75% of all women were pardoned. Second, the sheer volume of mitigations shows that these tools were highly institutionalized. Mitigation was employed for centuries, and yet the legislators that instituted the death penalty so widely rarely made any effort to ensure it was enforced. For these reasons, it is evident that the criminal justice system knowingly relied on the powers of the judge and the jury to ensure that the death penalty was enforced in far fewer cases than it could have been.

-- LukeRushing - 15 Apr 2018


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