CRIMINAL LAW

With regard to substantive law, the greatest changes that have been made are in the department of criminal law. From the beginning of Elizabeth's reign to the end of the seventeenth century high treason and all felonies, except petty larceny (i.e. the theft of goods under the value of twelve pence), were punishable with death, subject to 'benefit of clergy', where it applied. In the time of Shakespeare, statutory felonies had become somewhat numerous, and included all thefts of goods or money exceeding twelve pence in value, and the death penalty was carried out in an appalling number of cases. It has been calculated that at the end of the sixteenth century over 800 persons were annually hanged in England, the population of which at that date scarcely reached five millions. At one Assize for Exeter in 1598, 134 prisoners were indicted. Of these 17 were condemned to the gallows, co were ordered to be flogged, 15 were pardoned, and 11 claimed benefit of clergy, and were branded and set free. Quite half of the persons condemned to death in England were tried before magistrates at Quarter Sessions without the attendance of a judge.

This wholesale slaughter even moved Coke (who was no sentimentalist) to write at the end of his third Institute: 'What a lamentable case it is to see so many Christian 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, came to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart bleed for pity and compassion.'

Treason was, of course, the highest of all crimes, and was punishable with hanging, drawing, and quartering, the barbarous process to which Shakespeare makes familiar reference in King John, where Philip the Bastard, mocking the love-lorn Dauphin, says:

Drawn in the flattering table of her eye!
Hang'd in the frowning wrinkle of her browl
And quarter'd in her heart ! he cloth espy
Himself love's traitor: this is pity now,
That hang'd and drawn and quarter'd, there should be
In such a love so vile a lout as he. (II. i. 504-9)

By a curious begging of the question the unfortunate person who was accused of treason was not even allowed the assistance of counsel. Persons accused of even ordinary felonies were not allowed counsel to address the jury on their behalf, but merely to examine and cross-examine witnesses and argue points of law, until the early part of the nineteenth century, when, in spite of strong protests from several of the Common Law judges, the privilege was granted.

In cases of high treason or petty treason by women (i.e. murder, or conniving at the murder, of a husband or master) the sentence was death by burning, which Blackstone (apparently without conscious irony) attributes to the regard of our ancestors 'for the decency due to the sex' (4 Bl. Comm. 93).

The same terrible fate was awarded freely to the unfortunate women who were found guilty of the imaginary offence of witchcraft, and occasionally (notwithstanding the statute 1 Elizabeth, c. 1, which repealed all the statutes relating to heresy) the writ de comburendo heretico was issued (probably illegally) for the burning of a 'contumacious' or 'relapsed' heretic. Two Anabaptists, for instance, were sent to the fire in 17 Elizabeth, and two Arians in 9 James I.

Shakespeare refers to the burning of heretics in several passages. For instance:

When the devout religion of mine eye
Maintains such falsehood, then turn tears to fires!
And these, who often drown'd could never die,
Transparent heretics, be burnt for liars!
(Rom. & Jul. I. ii. 93-6)

And again in King Lear (III. ii. 84) the Fool predicts the confusion of England when, among other follies, no heretics are burned.

Probably Shakespeare, like the rest of his contemporaries, had a firm belief in the reality of witchcraft; for at the trial of the Suffolk witches in 1664 (nearly fifty years after Shakespeare's death) we find the presiding judge, Sir Matthew Hale, directing the jury that 'it was undoubted that there were such creatures as witches, for the Scripture affirmed it, and the wisdom of nations had provided laws against such persons' (State Trials, vi. 647).

In 2 Henry VI (II. iii. 5-7) the King is made to say:

You four, from hence to prison back again;
From thence, unto the place of execution:
The witch in Smithfield shall be burn'd to ashes.

Statutes against witchcraft were passed in the reigns of Henry VIII and Elizabeth. James I wrote a tract on it, and nearly all the writers and playwrights of the period are full of allusions to it.

Other barbarous punishments were also common for misdemeanours, such as amputation of the hand, the stump being thrust into boiling pitch or tar (when the mutilation was not intended to be merely preliminary to the execution of a death-sentence), not to speak of the pillory for political offenders, the ducking-stool for women with too free a tongue, and whipping 'at the cart's tail' for both sexes.

Here is an 'impressionist' picture of the fierce tone of the criminal courts of the seventeenth century set in a grotesque frame of the barbarous law French of the day. [Note per Treby, C.J., on the margin of his copy of Dyer's Reports, quoted in Curiosities of the Law Reporters.]

Richardson C. J. de C. B., at Salisbury in summer 1631 fuit assault per prisoner condemne pur felony, que puis son condemnation ject un brickbat a le dit justice que narrowly mist. Et pur ceo immediately fuit indictment drawn pur Noy enver le prisoner, et son dexter menus ampute et fixe al gibbet, sur que loy mesme immediatement hange in presence de Court.

One peculiar brutality must be mentioned, the peine forte et dure. When a prisoner accused of felony refused to plead he could not be tried, and as conviction of felony involved forfeiture of property, many bold men refused to plead, in order that their possessions might be preserved for their families. But they well knew the consequences. They were laid on their backs, and heavy weights piled on their breasts until they either gave way and consented to plead or died. This peine forte et dure, which Shakespeare calls 'pressing to death' in Measure for Measure (v. i. 525), was not abolished until the reign of George II.

Another drastic punishment of Shakespeare's day was the writ of praemunire for giving obedience to papal encroachments on the royal power. It was a statutory offence and punishment, dating back to 16 Richard II, c. 5, and the effect of the writ is correctly described in Henry VIII III. ii. 338-45), thus:

Lord Cardinal, the king's further pleasure is,
Because all those things you have done of late,
By your power legatine, within this kingdom,
Fall into the compass of a praemunire,
That therefore such a writ be sued against you;
To forfeit all your goods, lands, tenements,
Chattels, and whatsoever, and to be
Out of the king's protection.

Another peculiarity still extant in Shakespeare's day, which only gradually died out some centuries later, was the extraordinary class privilege known as 'benefit of clergy'. Originally a privilege from temporal jurisdiction claimed by the Catholic Church for its ordained clergy, it was ultimately extended to all clerks, whether secular or religious, and its effect was, after the Reformation, to substitute imprisonment, and in some cases branding on the hand, for death, in the case of convicted felons who could read. This is referred to in 2 Henry VI (IV. ii. 69-71):

But methinks he should stand in fear of fire, being burnt i' the hand for stealing of sheep.

By Elizabeth's time the benefit had by a series of statutes been disallowed in cases of petty treason, piracy, homicide, burglary, housebreaking with violence, highway robbery, horse-stealing, robbing of churches, theft from the person, rape, and abduction; but the fact that eleven persons claimed benefit of clergy at Exeter Assizes in 1598, and were branded and released, instead of being hanged, shows how valuable the privilege was. Women (except originally professed nuns) were denied the privilege until 1692. In 1827 benefit of clergy was abolished generally, but, by a slip, peers were not included in that statute. The privilege was, however, taken from them in 1841.

Benefit of clergy is alluded to in 2 Henry VI (IV. vii. 39-51), where Jack Cade says:

Thou hast caused printing to be used; and, contrary to the king, his crown, and dignity, thou hast built a paper-mill. It will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb, and such abominable words as no Christian ear can endure to hear. Thou hast appointed justices of peace, to call poor men before them about matters they were not able to answer. Moreover, thou hast put them in prison; and because they could not read, thou hast hanged them; when indeed only for that cause they have been most worthy to live.

One cannot help feeling some sympathy with Jack Cade in this impeachment of benefit of clergy, but Shakespeare himself gives no sign that it was any more obnoxious to him than the other matters denounced by Cade.

But perhaps the worst feature of the Criminal Courts in Shakespeare's time was the subservience of the judges to the executive. They were then appointed durante bene placito -- removable at the sovereign's pleasure. It was not until early in the eighteenth century (12 & 13 Will. III, c. 2) that the judges were made independent of government influence, since when they have been appointed quamdiu se bene gesserint, and can only be dismissed on an address by both Houses of Parliament.

This subservience was not only shown in the conduct of trials, but in the withholding of the writ of Habeas Corpus when persons were imprisoned by order of the King or the Privy Council; and it was not until 16 Car. I, c. 10, that an attempt was made to remedy this, which was subsequently clinched by the famous Habeas Corpus Act, 1679, which still governs the subject, and imposes heavy penalties on judges who refuse to issue the writ.

The Elizabethan age was pitiless, and 'the way of the transgressor' was certainly made as hard as it could be.