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47 Chapter 3 Fear, Capital Punishment, and Order The Construction and Use of Capital Punishment Statutes in Early Modern England and Seventeenth-Century New England Patrick Callaway T he greatest hopes and greatest fears of a ruling class are reflected in the legal codes that they create to fight disorder. The nature of the threat to society changes in nature over the course of time and is a reflection of the values of that society. The fears of a society evolve over time based on economic and class structures, religious beliefs, and perceived threats to the social order. Capital punishment was a tool at the disposal of society to enforce conformity with the expected economic and moral order while protecting property and propriety. Throughout the early modern legal system, there were important differences between the enactment of capital punishment legislation, the enforcement of this legislation, and the practical structures of law enforcement. By modern standards, this process was a haphazard one that oftentimes depended on informal structures . The eighteenth-century process of law creation was unsystematic and resulted in laws that served at cross-purposes to one another, provided a scale of punishments that bore little resemblance to the seriousness of crime committed , and functioned as a remedy for alleged social disorders that were a direct threat to members of Parliament. Law creation at this time was an intensely personal process; the resulting legislation oftentimes reflected the deeply seated fears of individual legislators rather than a systematic system of law. Law enforcement was also unsystematic . Although the written law statutes were exceptionally brutal and recommended the mass employment of the hangman’s rope, in practice, capital punishment was not universally enforced. Capital punishment was a tool of terror; theoretically , that terror inspired by the law maintained order. In practical usage, capital punishment could only be used in a selective balance between terror, mercy, and the preservation of the majesty of the law. Colonial law evolved in a different social and economic context than English law. The social conflicts of the colonies varied from those of the mother country. As a result, the nature of the legal system in the colonies differed in important aspects from those of England. Generally, English legal codes sought to maintain an order based on the protection of property and wealth while the New England colonies placed an emphasis on the preservation of a religious moral order. Although each system had different features, the 48 Patrick Callaway ultimate result of the law, and the role of capital punishment in law enforcement, remained consistent : to keep the social and economic control of society in the hands of the elite classes within that society. Early Modern English Law and Capital Punishment The rise in the number of capital statutes during this time period was influenced by the evolution of English society as a whole. The seventeenth and eighteenth centuries were a time of upheaval in society. A significant change in English society was the Glorious Revolution of 1688. This revolution brought a new governing mentality and justifications for power to the forefront of the political and legal process. In Albion’s Fatal Tree, Douglas Hay argues that this revolution “established the freedom of not men, but men of property.”1 The political system was effectively controlled by people of property without any serious interference from the crown or the citizenry. The class interest of property owners was the domestic platform of the British government throughout the eighteenth century. Hay argues that the imposition of a new basis of government based on the open display of power was not sufficient, unless there was an accompanying change in the basic ideological relationship between property and governmental legitimacy. Hay writes that “there was little pretense that civil society was concerned primarily with peace, or justice, or charity. Even interests of the state and divine will had disappeared. Property had swallowed them all.”2 John Locke was the clearest ideological voice on the new relationship between property and power. According to Hay’s interpretation of Locke’s Second Treatise of Government, the government is transformed into a body whose only concern is the preservation of property. Further, political power can be defined through the government’s ability to inflict the death penalty as well as lesser punishments.3 This ideological shift, accompanied by the shift of political power into the hands of the propertyowning class left the lower classes of society trapped in a maelstrom of social, economic, and demographic change under...

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