Introduction
SUMMARIES OF THE TRUE BILLS From 3 Edward VI. to the End of James the First's Reign.
The purpose of the ensuing tables is to exhibit in a convenient form
and a small compass a large assemblage of facts, that cannot fail to
prove serviceable and instructive to students of our social history.
Though from the original imperfection of the records and the defacement or decay of many of the parchments they lack the completeness
and numerical exactitude, that are matters of course in the statistical
summaries of modern prison-registers, these tables indicate the relative
prevalence of the various kinds of crime and misdemeanour, and whilst
pointing to the degree in which the criminal code of our forefathers
was destructive of human life will enable the reader to apprehend how
far the rigour of that code was modified by benefit of clergy, and in the
times of Elizabeth and James I. by the practice of convicting culprits
of petty larceny, in the face of evidence that they were guilty of capital
felony.
The data of the tables were gathered from the True Biils in the
following manner. Sitting day after day with a prepared ledger at his
right hand and an open file at the command of his left hand, the editor
of the present volume re-examined all the bills from the third year of
Edward the Sixth to the end of James the First's time, and made a
short straight mark on one or another of several prepared lines of the
ledger for every person indicted by the successive bills, taking care
that no culprit was marked a second time on the open page for mere
indictment. When a culprit was charged with several offences, he was
marked in the ledger for the gravest charge of which he was found
guilty, or in case of his acquittal on all the charges he was marked for
the gravest offence for which he was indicted. For instance, in dealing with the record of a culprit convicted or acquitted of a clergiable
felony and also of an unclergiable felony, the editor numbered him
amongst the persons indicted for the graver offence. Consequently,
the combined numbers of the several groups of persons, stated in any
one of the ensuing summaries to have been indicted for various kinds of
crime and misdemeanour, are the whole and exact number of all the
several individuals indicted by the bills, yielding the data exhibited in
the table.
After taking note of the person or persons indicted by a bill, the
editor, turning his attention to the clerical memoranda of the document,
made a mark in one or another of several appointed lines of his
ledger, for every record of conviction, acquittal, confession of indictment, successful pleading of clergy, capital sentence &c. Having thus
gone through the True Bills of each year, he counted up his several
assemblages of marks into the totals given in the summary of the bills
of the year.
To guard his readers from misapprehension, it is needful for the
editor to say something of the sense in which certain words are used,
and of the significance of certain matters exhibited, in the ensuing
summaries.
(a.) Capital Felony:—Used in its most comprehensive sense, i.e., of
a crime punishable with death and forfeiture, "capital felony" in the
following tables covers high treason as well as all other kinds of capital
felony. In like manner, as hinging was a part, though the least barbarous and repulsive part, of executions for the most heinous of all the
many kinds of capital felony, persons sentenced to death for high
treason have been numbered for the purpose of the tables with the
other "capital felons sentenced to be hung." Principals and accessories have been counted together as persons indicted for capital
felonies.
(b.) Larceny:—Standing by itself without any attendant word of
qualification, "larceny" in the ensuing tables signifies "simple grand
larceny," and covers all simple grand larcenies that would not fall
under any of the special forms of simple great larceny of which the
tables make separate mention.
(c.) Larceny with Housebreaking:—Under this head are counted all
persons indicted for stealing from the house under circumstances that
distinguished their offence from burglary. Most of these persons were
charged with "breaking the house," and in a certain proportion of the
bills, a memorandum of a special acquittal of the housebreaking,
accompanied by a memorandum of conviction of the felonious stealing,
shows that the "domum fregit" of the indictment meant more than
that the thief had merely entered the dwelling from which he was said
to have taken goods feloniously.
(d.) Petty Larceny:—Readers should take due notice of the entries
(beginning in the summary of 20 Elizabeth) of the verdicts of 'Guilty
of Petty Larceny' against persons indicted for grand larceny; a series
of entries pointing to the way in which social sentiment modified the
severity of the law, that awarded death to persons convicted of stealing
to the value of twelve pence. That so many of these verdicts appear
in the fragmentary files of Elizabeth's time may at least be regarded as
presumptive evidence, that the merciful usage, which displays itself so
much more often in her nearest successor's reign, accorded with the
gentler moods of her despotic temper. Under the Tudor Queen culprits convicted of petty theft seem to have been usually dismissed from
gaol on the payment of a small fee. At least, the notes on the indictments afford no evidence that it was customary to punish these offenders
at the whipping-post or the cart's tail. But after the sixth year of James I.,
the Middlesex session-rolls reveal a steady disposition in judges to rely
on the lash for the suppression of petty theft as well as for the correction
of other minor offences. Of thirty-nine culprits convicted of petty larceny
in James's seventh year thirteen were whipt, before being delivered on
payment of the fee. In the next year, the whip was given to every
person convicted of petty larceny. Of the thirty-two persons convicted
of petty theft in James's ninth year only five escaped whipping. In
the next seven years no one, after conviction at the Old Bailey of petty
theft done in Middlesex, was allowed to return to his home without
flagrant weals on his shoulders. This period of uniform rigour is seen
from the session-files to have been followed by a brief term of comparative lenity. In 17 James I., the Middlesex indictments were so carelessly annotated by a scandalously negligent clerk of Gaol-Deliveries,
that one hesitates to rely on their testimony, that of thirty-one culprits
convicted of petty larceny in that year eighteen were let off without a
flogging. During the remainder of James's reign, it remained the rule
to whip for petty theft, though a few of the petty thieves escaped the
lash.
(e.) Persons indicted for Quarrelling, fomenting Discords, inciting to
Breach of the Peace:—Persons indicted for being common barrators
(communes barrectatores) are counted under this heading with scolds
and other mere disturbers of the peace.
(f.) Persons convicted of Capital Felonies:—No person has been
counted twice into any of the numbers put in the same line with these
descriptive words. In cases where a culprit was indicted for several
capital felonies by the same bill or several bills, and found guilty of
more than one of them, he was marked once in the ledger and no
oftener.
(g.) Persons acquitted of Capital Felonies:—With the exception of a
single class of individuals (i.e., the culprits who were acquitted of grand
larceny but were found guilty of petty larceny on the same indictment),
no one has been counted into any one of the totals following these
descriptive words unless he or she was wholly acquitted of every felony,
in respect to which he or she was tried for life, in the year under consideration. The individuals of the one excepted class have, however,
been always counted amongst the persons acquitted of capital felonies,
before being again counted amongst persons convicted of petty stealing
on indictments for great stealing. That so large a proportion of the
persons, tried for capital felonies at the Old Bailey, were acquitted will
astonish the many readers, who have adopted without inquiry the prevailing notion that, in the comparatively hard and ruthless times of
Elizabeth and James, it was rare for a culprit to put himself on trial
for a capital felony and retire from the dock a free and not dishonoured
man.
(h.) Capital Felons confessing Indictments:—The editor was nearing
the end of Elizabeth's time, in the making his statistical tables, before
it occurred to him it would be well to exhibit the proportion of felons
who 'confessed the indictment' (or as we now-a-days say corruptly,
'pleaded guilty') before pleading their clergy. But from Elizabeth's
forty-third year to the end of James's reign each yearly table exhibits
the proportion of the convicted felons who made confession of guilt
before asking for the benefit of scholarship. Speaking from his observation of the criminals of his own period, Blackstone intimates that it
was very rare for a felon to plead his clergy without having first pleaded
'Not Guilty' and taken his chance with a jury, in order to reserve his
right to plead his clergy once and no oftener, till he had no other, or at
least no readier, way of escaping the gallows. That the scholarly felons
of Elizabeth's and James's times were less prudent in this respect than
the felons of Blackstone's period is shown by the last twenty-five of the
ensuing tables.
(i.) Felons pleading and 'having' Benefit of Clergy:—It by no means
followed that the felon who pleaded clergy obtained what he asked for.
It not seldom happened that 'the book' was refused to a petitioner,
on the ground that he had received the clerical benefit on a previous
occasion. It was a still more frequent occurrence for a felon to miss
the benefit, because after 'the book' was allowed to him he was
unable to read it. Again, there were cases in which the delivery of
the book was postponed by order of a judge, who either suspected
the prisoner of having 'read his neck-verse' on a previous occasion,
or who was of opinion the petitioner should undergo another term
of imprisonment before being restored with a branded thumb to
society.
(k.) Felons reprieved before or after Judgment:—Derived, from the old
French represt, otherwise spelt reprist, or through the French reprendre
from the Latin reprehendere (more fully retro prehendere), the English
word 'reprieved' means 'taken back.' After conviction a capital felon
might be reprieved, either before or after judgment, ex arbitrio judicis=
at the judge's discretion, for various considerations, or ex necessitate legis=
from necessity of law, as where a woman pleaded pregnancy and on
inquiry by a jury of matrons was found pregnant. In a considerable
proportion of cases a reprieve was followed by an absolute or conditional pardon. But a reprieve was in itself nothing more than a
respite of judgment or an order for the temporary suspension of the
execution of the capital sentence; and a large proportion, if not a
large majority, of the capital felons, thus ordered back to prison in
times of Elizabeth and James I., were in due course hung at Tyburn.
When a capital felon was reprieved in this manner, it was the duty of
the clerk of the Gaol Delivery to record the reprieve on the bill or bills
of indictment on which the culprit had been arraigned, and this duty
the clerk usually discharged by adding to his minutes of the case r', or
re pr., or repris, or ro. pr.=retro reprehensus, or some such other note,
together with a note signifying whether the reprieve was ordered before
or after judgment. Repris, it may be observed, was also put on the
indictments of offenders who were convicted of offences less heinous
than capital felonies, to indicate a sentence to imprisonment; the term
in such cases being precisely equivalent to 'imprisoned' or 'sent to
prison.' Thus persons indicted for exceptionally violent assaults or
other serious misdemeanours, that put them in no danger of a capital
sentence, are recorded on the bills of indictment as repris pro tribus
mensibus, or ro. pr. pro uno anno, i.e., 'taken back' or imprisoned for
three or twelve months, as well as sentenced to pay a heavy fine.
Now and then the clerk of gaol-deliveries even extends the familiar repr.
or repris to 'reprisonetur.' For instance, the minute of the sentence
awarded to John Scrowbye (vide pp. 208–9), for refusing to take the
oath of allegiance and abjuration, concludes with "et reprisonetr. sine
M durant' voluntate d'ni Regis"=and be reprisoned (=reprieved=
taken back to prison) without mainpernors during the pleasure of the
Lord the King. To the clerk, who penned the minute which closes in
this remarkable manner, repris was not only equivalent in sense to
reprisonatus, but an abbreviation of the word.
(l.) Capital Felons described in the Indictments as 'late of London':—
When he began to count the persons convicted of capital felonies, who
were thus described in the indictments, the editor was under the impression that he was gathering data for showing the degree in which
London was accountable for the crimes done in Middlesex, or, in other
words, for showing the degree in which the metropolitan county suffered
from its nearness to so great a school of crime as the metropolis. It
is, however, obvious that, at least in Elizabeth's time and during James's
earlier years, it was the practice of the draughtsmen of indictments to
assume that all culprits, of whose proper parishes or habitual places of
abode they were ignorant, had at some time or other lived in London,
and might therefore be safely described as "nuper de London." Of
137 persons convicted in 7 James I. of capital felonies done in Middlesex, no less than 115 were thus assigned to London. But four years
later (11 James I.), when it had become the practice of the draughtsmen to describe culprits as 'late of the parishes in which they were
charged with having committed crime, only four individuals of the
gross number of 133 capital convicts were described as "nuper de
London."
It will not escape the most cursory peruser of the ensuing tables,
that the combined numbers of the persons convicted of capital felonies,
the persons acquitted of capital felonies, the culprits standing mute, and
the capital culprits 'at large' seldom correspond to, and often fall
very far short of, the number of the persons indicted for capital crimes.
That these two sets of totals are so seldom in accordance, and so often
at wide disagreement, in the successive tables, is due to (a) the number
of the persons over whose names the successive annotators of the bills
either put an incomplete memorandum or no minute whatever, and (b)
the frequent removal of memoranda from the indictments by rot or other
injury to the parchments. In other respects, the numbers exhibited
in the summaries are wanting in the harmony and congruence that
would have characterized the numerical statements, had their data been
gathered from perfect sources of information. Readers may be assured
the editor has spared no pains to render the tables as full and exact as
possible.