Middlesex County Records: Volume 2, 1603-25. Originally published by Middlesex County Record Society, London, 1887.
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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.