‘Whereby Murder of Malice Prepensed Is Made Treason’: How Punishment Turned Punitive in Early Modern Ireland

Given the dearth of comparative-historical research on mass incarceration in the United States, studying punishment elsewhere before the twentieth century promises to enhance our understanding of the American punitive turn. But just how far back should our analyses go? I demonstrate the usefulness of the case of early modern Ireland, the first colony of the British Empire, whose legal system harshened substantially between the thirteenth and eighteenth centuries as English common law supplanted indigenous Gaelic Brehon law on the island. Focusing on the 1495 Irish Treason Act, which increased the severity and certainty of sentencing for homicide and other felonies, I leverage the case to adjudicate among competing theories of punishment derived from studies of the U.S. in the present. Contemporary administrative records, chronicles of conflict, and Irish parliament rolls show that this legal innovation resulted not from an increase in violence, nor from rebellion by racialized lower classes, but rather from an imperial imperative — the crown’s need to pacify insurgent Anglo-Irish gentry. The findings suggest that the Treason Act had far-reaching ramifications for the development of homicide law in England and former British colonies, including the U.S., and help illustrate the analytical value of examining changes in criminal legal systems over unconventionally long periods of time.

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