Punishment should fit the crime. Last fall, taking a course on the Tudors and the Stuarts, I noticed that in early modern England (1485-1688) the punishments almost never fit the crime. A few examples follow, with comment below.
- The great Catholic humanist Thomas More, author of Utopia, was Henry VIII’s Lord Chancellor when Henry made himself the head of the Church of England in order to divorce Catherine of Aragon. Thomas More refused to accept Henry’s rejection of the Pope and Church doctrine, so he was beheaded for treason.
- Archbishop Hugh Latimer, Bishop Nicholas Ridley, and Archbishop Thomas Cranmer were not as lucky as Sir Thomas More. When Catholics returned to power under Mary I, they were burned at the stake, a horrific fate worse than beheading. In fact, nearly 300 Protestants were burned during Mary’s reign. (And Lady Jane Grey, the nine-day Protestant queen before Mary, was executed.)
- Moving forward to Charles II’s reign, we find that at least 24 Catholics were executed by being hanged, drawn, and quartered (another horrific way of dying) because they were accused of being part of a ”Popish plot.” Yet there was no Popish plot. It was invented by Titus Oates, a disreputable renegade who had been kicked out of many places, both Protestant and Catholic.
What troubles me most is that these (and other [1]) travesties of justice took place in a time when the English touted their liberties and judicial protections.
The 1628 Petition of Right, accusing Charles I of violating traditional liberties, retraces the history of those rights: no man may be deprived of his rights “but by the lawful judgement of his peers” (Great Charter); no man can be put to death “without being brought to answer by due process of law” (Edward III); “no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm or by act of parliament”(also Edward III).
So why did these egregious violations happen? The cause was not simply arbitrary kings and court intrigues, although there was plenty of that. There was more. Many juries acted out of prejudice and fear, as perhaps in the case of Thomas More, and there may have been the “madness of crowds” in the response to the “Popish plot.” In the case of Archbishop Laud, Parliament overrode a jury trial. Indeed, the full panoply of human emotions affected punishments in the Tudor/Stuart period. Yet the highly touted English institutions allowed it to happen.
May I bring this up to date? In the United States we, too, have liberties and due process. And we, too, have palace (that is, White House) intrigues and prejudices. No one in this country will be beheaded, no matter what he or she does. Yet, if we have true “due process,” why must we have special prosecutors? What is wrong with our system that we must give extra, and perhaps unlimited, powers to specially chosen individuals: Archibald Cox, Kenneth Starr, and Robert Mueller (there was even a special prosecutor investigating Ulysses S. Grant)?
Could due process suffer from the same factors that plagued the early modern period in England? Or must we depart from due process when it comes to our highest leadership?
[1] I want to be clear that those examples can be duplicated many times. A few more:
After Henry VIII had become the Supreme Head of the Church, he was free to annul any marriage. But, instead, two wives were executed, Anne Boleyn for treason and Catherine Howard for adultery. The charges against Anne were bogus; Catherine’s were probably genuine—but is having your head cut off a fit punishment for adultery?
After Mary died, Elizabeth, a Protestant, became queen. Things calmed down, although there were always arbitrary deaths—such as the execution of Mary Queen of Scots, which Elizabeth allowed to happen. (True, Mary may have been on the brink of treason; that is, she wanted the English throne, having lost her own.)
Just before the English Civil War, Parliament had Archbishop William Laud executed, and Parliament chose to behead Charles I when he lost the war.
Note: Image is from an 1888 book, Proverbial Philosophies, in the British Library (available on flickr.com).
Two people have reminded me that a person executed by rope is hanged, not hung. Thank you! I have made the change.
I am pleased you are writing on this subject. Torture and execution in horrendous ways (e.g., drawing and quartering and impaling) seem rampant. Simon Shaman, in Vol. III of his History of Britain, claims the inordinate punishment of the sepoys in India was a major cause of their uprisings (eg, 10 years for refusing to use their weaponry because it had to be greased with pig and cow tallow.).
Ramona Marotz-Baden
Robert Natelson’s comment is well reasoned and written–putting us in the context that might explain the severity of the punishments.
Your post, it seems to me, suggests two questions.
1. Why were the punishments to cruel and barbarous?
2. Why doesn’t the law function to create fair treatment of the accused in the normal judicial structure (then or now)?
For the second question, I suggest that application always falls short of ideal. Just as we continue to fall short of “all men are created equal and endowed by their Creator with certain unalienable rights” and “with liberty and justice for all.” However, I have read and lived enough history to be proud of the progress we’ve made in steering by those north stars of equality and to see that progress accelerating during my lifetime.
A really interesting post, Jane, and equally so Rob’s comment. Crime and punishment has always fascinated me. More, please!
On the issue of “So why did these egregious violations happen?” I think I can add something.
When you are adopting punishments, one factor to consider is the need to deter. To the extent would-be criminals act rationally, they consider the severity of the punishment multiplied by its probability. In Tudor England government was inefficient and the probability that a criminal would be apprehended and punished correspondingly low. Hence lawmakers thought it necessary for punishments to be severe. The same situation prevailed in 18th century England, which (purportedly) punished many minor crimes with death. (I say “purportedly” because to avoid the punishment the charges often were dropped, waived by benefit of clergy, or commuted to “transportation.”) One reason the punishments could be reduced during the 19th century was the greater efficiency of law enforcement.
In the case of death for adultery: Very severe by modern standards. But one can understand why in a society where it could be difficult to detect (see above) and where enormous amount of the national wealth was passed by inheritance to legitimate children. Adultery could result in illegitimate children supposed to be the issue of the woman’s husband wrongfully inheriting—a potentially massive misallocation of wealth.
As for treason: Loyalty to the existing monarchy was foundational to a society that had recently seen civil war, chaos, and enormous bloodshed in the Wars of the Roses, which had ended fairly recently (1485).
Incidentally, the commutation of More’s sentence to beheading was an act of relative mercy by Henry VIII. Usually the punishment for treason was drawing and quartering.
Elizabeth I—in my view, England’s greatest monarch ever—was far more merciful, almost entirely avoiding her father’s bloodshed. In the the case of Mary Stuart, Elizabeth refrained from executing her for years despite Mary’s constant intrigues. But Mary wouldn’t stop, and ultimately left Elizabeth no choice.