high levels of capital punishment early in Elizabeth’s reign and support the
notion that the criminal law was particularly bloody under the Tudors.
Archer goes on to show that this severity was tempered in London over the
last decades of the sixteenth century, when a certain flexibility came to be intro-
duced into the administration of the criminal law by means of jury verdicts and
the exercise of judicial discretion. Most significant was a notable increase in ac-
quittals and partial verdicts, and, as a consequence, a decline in the level of
death sentences, especially for simple grand larceny. In addition, Archer notes a
greater willingness among the judges to allow benefit of clergy, especially in
cases in which the accused was willing to plead guilty and throw himself (for this
applied only to men) on the mercy of the court. Further, because of the increas-
ing willingness of juries to find partial verdicts, more offenders came to be con-
victed of petty rather than grand larceny and were sentenced to be whipped.^53
This trend towards a greater leniency in Elizabeth’s reign (if whipping rather
than clergyable branding was so regarded in the sixteenth century) was to some
extent arrested and reversed in the 1590 s. And there were to be high levels of
capital punishment in other parts of the country in the difficult decade of the
1620 s and in the early 1630 s. But the underlying tendency towards a more flex-
ible application of the law had the effect over the longer term of considerably
moderating high levels of execution. Studies of the patterns of prosecution and
punishment in several parts of the country suggest that the rate of capital pun-
ishment for property offences declined in the second quarter of the seventeenth
century, and that that trend was to accelerate after 1640.^54
An overriding pattern is clear, despite fluctuations over time and differences
from place to place. The stern imperatives of a criminal code in which, under
the Tudors, execution appears to have become common for a wide range of
property crimes gave way in practice to a more moderate regime, the harsh
sanctions of the law being blunted by juries and judges alike. More acquittals
and partial verdicts, a more liberal attitude towards clergy, more reprieves and
pardons (encouraged perhaps in the early decades of the seventeenth century by
the possibility of transportation to the new colonies in America as a substitute)
resulted in falling rates of hanging and the elaboration of a number of alterna-
tive, non-capital punishments. By the second quarter of the seventeenth century
the levels of execution were returning to what had been the late medieval norm,
and a significant number of convicted offenders were being discharged with a
branded thumb, subjected to whipping, or, in a few cases of men and women
The Old Bailey in the Late Seventeenth Century 279(^53) Archer, Pursuit of Stability, 245 – 7. James Cockburn found a similar pattern with respect to partial
verdicts on the Home Circuit of the assizes in Elizabeth’s reign: whereas there were no such verdicts
before 1573 , they had become common by the last decade of the century (Calendar of Assizes Records:
Introduction, 115 ).
(^54) J. A. Sharpe, Crime in Seventeenth-Century England: A County Study(Cambridge, 1983 ), 141 – 5 ; idem, Crime
in Early Modern England, 1550 – 1750 , 2 nd edn. ( 1999 ), 90 – 2 ; Philip Jenkins, ‘From Gallows to Prison? The
Execution Rate in Early Modern England’, Criminal Justice History, 7 ( 1986 ), 51 – 71 (esp. 54 – 61 ).