Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions

Law and History Review

Volumn 17, Issue 3, 1999, Pages 507-536

  Landau, Norma ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 85011735696     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744380     Document Type: Article

References (63)

1. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 2, The Clash Between Private Initiative and Public Interest in Enforcement of the Law (London: Stevens and Sons, 1956), 57-61, 64-66.
2. J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 457-58, suggests that about one-third of those convicted of assault in late seventeenth-century Surrey had reached a settlement with their prosecutors. However, his less detailed comments in “Violence and Society in Early-Modern England,” in Perspectives in Criminal Law, ed. A. N. Doob and E. L. Greenspan (Aurora, Ontario: Canada Law Book, 1985), 42, suggest that a greater proportion of those convicted of assault reached such settlements. Peter King, “Punishing Assault: The Transformation of Attitudes in the English Courts,” Journal of Interdisciplinary History 27 (1996): 43-74, focuses on the increased use of imprisonment as a punishment for assault, presenting this change in punishment as a reflection of change in English and magisterial evaluations of the gravity of the offense and so a contrast to earlier punishments, which treated assault as a private matter. R. B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge: Cambridge University Press, 1991), notes that at Middlesex Quarter Sessions occasionally reached settlements with their defendants (129, 159, 161) and that some indictments for assault could be viewed as disputes about property and so as civil disputes (129, 131, 161). For indictments for assault as civil disputes, see also: J. A. Sharpe, Crime in Early Modern England, 1550-1750 (London and New York: Longman, 1984), 45-46, 178-79; Clive Emsley, Crime and Society in England, 1750-1900 (London and New York: Longman, 1987), 140-41.
3. Depositions could not be given in evidence on indictments for misdemeanor. See Joseph Chitty, A Practical Treatise on the Criminal Law (London, 1816; reprinted New York: Garland, 1978) 1:80-81.
4. Of 266 statements in the Quarter Sessions papers of early seventeenth-century Sussex, 225 deal with larceny. See C. B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 67, n. 2.
5. The publications devoted to trials at Assizes and the Old Bailey are presented in: Beattie, Crime and the Courts, 649-51; idem, “Crime and the Courts in Surrey, 1736-1753,” in Crime in England, 1550-1800, ed. J. S. Cockburn (London: Methuen, 1977), 156, 166-74; J. H. Langbein, “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 267-71; idem, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 10-18.
6. LMA, MJ/SBP.
7. LMA, MJ/SBB. For further analysis of the Sessions Books and other documents created by the clerks of Middlesex Quarter Sessions, see Landau, “Appearance,” 32-33, 34, 41-43.
8. For the proportion of Surrey defendants against whom its grand juries found indictments, see Beattie, Crime and the Courts, 402.
9. Similarly, Shoemaker found that 37 percent of such defendants indicted by Middlesex's grand jury from 1663 to 1722 neither received a final verdict at Quarter Sessions nor had their indictments translated to a higher court. Prosecution and Punishment, count derived from table 6.3, 135.
10. J. A. Sharpe, Crime in Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983), count derived from 117, table 9; King, “Punishing Assault,” 49; S. A. Barbour-Mercer, “Prosecution and Process: Crime and the Law in Late Seventeenth-Century Yorkshire” (D.Phil, diss., University of York, 1988), 129. It is possible that the records used by Sharpe and Barbour-Mercer did not note all action taken on these indictments.
11. John Impey, The Practice of the Office of Sheriff and Under Sheriff (London, 1817), 132-34.
12. In the early eighteenth century, the bench would, on occasion, use its power to order that fines be estreated so as to prevent a sentence of imprisonment until a fine be paid from becoming a life sentence. So John Hubbard, fined £10 on conviction for a violent assault in February 1702, and sentenced to Newgate until the fine be paid, was released in October, when the bench estreated his fine. (LMA, MJ/SR 1982, indictment [hereinafter indt] 3; MJ/ SBP9, Feb. 1702, indt 3; MJ/E22; MJ/SBB600, order that fine be estreated; jail calendars in MJ/SR 1983, 1989, 1991, 1994, 1996; M/SP 1702, July no. 15.)
13. For fees for preferring an indictment, see Public Record Office [hereinafter PRO], E215/1105; LMA, MC/F, “A Schedule of Charges taken by the Clerk of the Peace,” 1836; The Office of the Clerk of Assize… Together with The Office of the Clerk of the Peace, 2d ed. corrected and amended (London, 1682), 247, 253, 254. For fees for taking up those charged, see LMA, MJ/OC/I, p. Ill, Jan. 11, 1720[l]; W/SP 1753, July no. 15; Chitty, Practical Treatise, 1:342.
14. Nicholas Covert, The Scrivener's Guide: being choice and approved forms of precedent… (London, 1740), 1:120. See also: Author of the Attorney's practice epitomized, The Attorney's Compleat Pocket-Book, 6th ed. (London, 1767), 235-36; William Bohun, The Practising Attorney: or, Lawyer's Office… 4th ed. (London, 1737), 2:328-29; Richard Hutton, The Young Clerks Guide: or, An Exact collection of choice English presidents… (London, 1651), 37, 238; John Goodrich, The civil and executive officers’ assistant. Containing the forms of bonds… (New Haven, Conn., 1793), 1031. Releases of indictments both at Middlesex Quarter Sessions and at other Quarter Sessions used this formula. See, for example, Kent Archives Office, Q/SB 1757, release of Leonard Hammond by William Green, Dec. 13, 1756.
15. See LMA, M/SP 1691, Jan. no. 1, which is a petition stating that there were “Generall releases drawn ready to be produced” showing that two people who had indicted each had been granted a release.
16. LMA, M/SP 1756, Jan. no. 4; M/SP 1756, June no. 2; M/SP 1756, Apr. no. 3. Less frequently, the word “Assaults” has been inserted in the list of actions annulled by the release (M/SP 1754, Box 4, release of John Fish and wife Jane by John Chappell). I want to thank Tim Wales for identifying these documents.
17. For example, LMA, M/SP 1798, Oct. nos. 124, 132, 133, 136; Sept. no. 78. Indeed the archivists of the LMA have on occasion labeled these releases “certificates of satisfaction.”
18. LMA, M/SP 1798, Oct. no. 110. Another, contemporaneous, release specified that the 6s. paid to the prosecutor covered the costs of both prosecutor and surgeon (M/SP 1798, Sept. no. 74).
19. M/SP 1798, Oct. no. 129. On some occasions, the defendant also preferred an indictment against the prosecutor, and then the parties to both indictments gave releases to each other. (MJ/SBP16, Jan. 1754, indts 57 and 73; M/SP 1754, box 3, release of John and Christiana Frasier and of Thomas and Dorothy Lewis by David Jones, and release of David and Ann Jones by the Frasiers and the Lewises, both releases dated 24 Jan. 1754.) It is likely that some of these counter-indictments are less claims that their prosecutor had been damaged than attempts to harass those who were indicting the prosecutors. So, it is possible that a release stating that “satisfaction” has been achieved by receipt of one shilling signified termination of such a counter-indictment. It is also possible that the payment of one shilling was the “consideration,” the exchange of something material, requisite to give legal force to an agreement such as a release.
20. W. J. Hardy, Middlesex County Records: Calendar of the Sessions Books, 1689 to 1709 (London: Sir R. Nicholson, clerk to the Middlesex Standing Joint Committee, 1905), 275 (Sept. 1704).
21. For public retraction of actions that offended against honor in eighteenth-century France, see Nicole Castan, “The Arbitration of Disputes under the ‘Ancien Regime,'” in Disputes and Settlements: Law and Human Relations in the West, ed. John Bossy (Cambridge: Cambridge University Press, 1983), 255. 38.1 want to thank Donna Andrew for telling me of this phenomenon and giving me copies of the apologies that appeared in The Daily Advertiser in 1751 and 1771. Of these fortynine advertisements (nine in 1751 and forty in 1771), only two were associated with indictments found by Middlesex's grand jury. Andrew will be analyzing advertisements of apology in her forthcoming essay, “The Press and Public Apologies in Eighteenth-Century London.”
22. C. M. Fraser and Kenneth Emsley, eds., The Wakefield Court Rolls Series of the Yorkshire Archaelogical Society, vol. 1, The Court Rolls of the Manor of Wakefield from October 1639 to September 1640 (Leeds: Yorkshire Archaelogical Society, 1977), 134.
23. S. B. Black, Local Government, Law, and Order in a Pre-Reform English Parish, 1790-1834 (Lewiston, N.Y.: Mellen Research University Press, 1992), 142; Emsley, Crime and Society, 165, n. 27; John Styles, “Print and Policing: Crime Advertising in Eighteenth-Century England,” in Policing and Prosecution in Britain, 1750-1850, ed. Douglas Hay and Francis Snyder (Oxford: Clarendon Press, 1989), 105; Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-east England, 1718-1800 (London: UCL Press, 1998), 35.
24. For such action at Westminster Quarter Sessions, see: LMA, M/SP 1797, Box 7, Folder W/SP Oct. 1797, R. Ward to E. Allen; WJ/SR3610, indt 4; WJ/SBB1495 recognizances [hereinafter recog] 101 and 102.
25. LMA, MJ/SBP18, Feb. 1771, indt 28 of John Dixon for assault on Edmund Sitgraves. Daily Advertiser, 27 Feb. 1771, apology of John Dixon. M/SP 1771, Apr. no. 12, release by Sitgraves to Dixon and Samuel Jervis. Both Dixon and Jervis confessed in April and were fined Is.
26. Of thirty releases and affidavits of release to the defendants in this sample, twentyseven are to defendants in recognizance to attend the court or in bond to prosecute their traverse, two to a defendant who confessed and subsequently obtained the releases, and one to a defendant who appeared in court on a bench warrant. For the use of bench warrants to bring defendants to court, see Landau, “Appearance,” A2-A3.
27. The Crown Circuit Companion, containing The Practice of the Assizes… with the Courts of the… Sessions of the Peace (London, 1738), 60. This passage is repeated in Richard Burn, The Justice of the Peace (London, 1762), 3:294-95, under “Sessions,” and in Chitty, Practical Treatise, 1:430.
28. The clerks’ fees for processing a release generating a stay were at least 17s. 4d., while the fees for processing a release associated with a confession were usually 14s. (LMA, MC/ F, vols. 15, 16). Thomas Wright, indicted for assault in October 1795, paid fees of £1 8s. 8d. for processing his release when he obtained a stay of proceedings. (MC/F, vol. 15, 15 Jan. 1796.)
29. LMA, MJ/SBP16, Feb. 1754, indt 67. Contemporary guides to court procedure state that the most usual reason for application for a stay was that a civil suit was being brought for the same offense or that the indictment was not supportable at law. See Crown Circuit Companion (1738), 63-64; Chitty, Practical Treatise, 1:478-79. However, most of the stays granted by Middlesex Quarter Sessions seem to have followed upon the defendant's notification to his prosecutor of his intention to proceed to trial.
30. See, for example, the notations for: LMA, WJ/SBB1366 recog 312; WJ/SBB1495 recog 122; WJ/SBB1380 recogs 54 and 128. Westminster's system of record keeping was almost identical to that of Middlesex.
31. Chitty, Practical Treatise, 1:436-37. I want to thank John Beattie for his help in interpreting this phrase.
32. See below, text at notes 75-78, for the October “estreating session,” at which defendants appeared seeking to ensure that their defaulted bonds or recognizances were not returned to the Exchequer.
33. The Sessions papers for 1796 and 1774 have not been catalogued and are not available for examination. No confessions associated with a small fine and no stays of proceedings were generated by the indictments for offenses against the person brought at the session held in January 1797, though prosecution of two defendants (indicted on the same indictment) ceased when their indictment was “quashed at the instance of the prosecutor” (MJ/SR 3606 [Jan. 1797], indt 9; MJ/SBB1494 [Feb. 1797], last page).
34. There are no releases in the Sessions papers for October and December 1753. Only two stays of proceedings on indictments for offenses against the person were granted after December 1753-one in response to a petition alleging that the defendant was the victim of a malicious prosecution (LMA, MJ/SBP16, Dec. 1753, indt 49; M/SP 1754, box 2, petition of William Hiner).
35. LMA, MJ/OC/IV, p. 164d, Feb. 1739/1740.
36. Shoemaker, Prosecution and Punishment, 138, states that in early eighteenth-century Middlesex agreements to settle disputes after the grand jury had found an indictment “ranged from informal understandings to formal releases from prosecution, sometimes arrived at by entering into bonds of arbitration.” The evidence for this statement is given in note 42, which cites three documents, one of which (LMA, M/SP 1722, Sept. no. 55) is a release. However, it is unlikely that agreements to settle indictments at Middlesex Quarter Sessions were founded on either bonds of arbitration or informal understandings. Prosecution and Punishment's, evidence that agreements to settle indictments at Quarter Sessions were founded on bonds of arbitration is the second document cited in note 42, M/SP 1720, May no. 4. This is an affidavit stating that, as a consequence of a suit he had brought in Common Pleas, the defendant had entered into a bond of arbitration for all disputes with his prosecutor. I have seen no evidence that parties to an indictment at Quarter Sessions entered into bonds of arbitration in response to that indictment. A very few orders of Quarter Sessions refer consideration of an indictment to one or more justices. (There are only nine such orders from 1695 to 1709; see Hardy, Middlesex County Records, 128, 157, 166, 196, 218, 232, 295,298, 318.) It does not seem that the parties to such referred disputes considered themselves bound by the justice's recommendation: at least one defendant removed his indictment to King's Bench by writ of certiorari after Quarter Sessions had made such an order (MJ/SBB763, p. 74, reference of indt of William Morris; MJ/SBB764, bond “R”).
37. Richard Williams, “Crime and the Rural Community in Eighteenth-Century Berkshire” (Ph.D. diss., University of Reading, 1985), 236-37; King, “Punishing Assault,” 49, 52, 63. Morgan and Rushton, Rogues, Thieves, 30-31, indicate that the Quarter Sessions of northeast England adopted a different procedure to deal with indictments whose prosecutors had received satisfaction in an out-of-court settlement. In Northumberland, these indictments were quashed by “common consent,” while in Durham they were “discharged by consent” of the prosecutors.
38. Crown Circuit Companion (1738), 62; repeated in Burn, The Justice of the Peace (1762), 3:295, under “Sessions”; Chitty, Practical Treatise, 1:429-30.
39. For examples of such notices, see: LMA, M/SP 1733, Dec. no. 1; M/SP 1734, Jan. no. 16; M/SP 1734, Feb. no. 3.
40. LMA, MJ/OC/I, p. 110, 5 Dec. 1720.
41. Kentish Post, 28 Apr.-2 May 1739.
42. LMA, MJ/OC/IV, p. 164d, Feb. 1739/1740.
43. Crown Circuit Companion (1738), 62, repeated in Burn, The Justice of the Peace (1762), 3:295, under “Sessions.”
44. LMA, M/SP 1720, Dec. no. 14.
45. LMA, MJ/SBP16, Oct. 1753, indts 63 and 65; MJ/SBB1107 (Jan. 1754), bonds “f” and “g”; MJ/SBB1108 (Feb. 1754), note of confession and fine; M/SP 1754, box 2, release of William Dover dated 9 Apr. 1754.
46. Crown Circuit Companion (1738), 60; repeated by William Blackstone, Commentaries on the Laws of England (Philadelphia, 1772), 4:356-57, bk. 4, ch. 27, and by Chitty, Practical Treatise, 1:7.
47. LMA, MJ/OClOa, Oct. 1777, pp.160-61.
48. LMA, M/SP 1720, Dec. no. 19; MJ/SBB789 (Dec. 1720), bond “p.” Cf. Shoemaker, Prosecution and Punishment, 161.
49. LMA, M/SP 1720, Dec. no. 14; MJ/SBB789 (Dec. 1720), bond “ww.” Toine's prosecutor was including in his demand a claim for his costs in bringing a suit against Toine in King's Bench.
50. N defendants = 907. N indictments = 552.
51. LMA, MJ/SBP16, Dec. 1753, indt 53; M/SP 1754, box 4, release dated 30 Oct. 1753; MJ/SBB1105 (Dec. 1753), recog 96; MJ/SBB1113 (Oct. 1754), note of confession.
52. LMA, M/SP 1772, July no. 56, p. 6.
53. LMA, M/SP 1754, box 5, affidavit of William Curtis sworn at Hick's Hall, 31 Oct. 1754.
54. In addition to the works cited in notes 6, 10, and 13 above, see: Douglas Hay, “Property, Authority, and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. D. Hay et al. (New York: Pantheon, 1975), 17-64; J. H. Langbein, “Albion's Fatal Flaws,” Past and Present 98 (Feb. 1983): 96-120; Peter King, “Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800,” Historical Journal 27 (1984): 25-58.
55. J. H. Langbein, “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1178.
56. The Attorney and Agents New Table of Costs in the Court of King's Bench and Common-Pleas,… containing the Fees and Disbursements on the part of Plaintiff and Defendant in the Prosecution and Defence of Actions, Indictments, Informations, and other Proceedings, 3d ed. (London, 1789), 254-56, The King on the prosecution of Lloyd against Tooke, 1785.
57. The defendant removed the case after the prosecutor had provided his counsel with a brief and a fee.
58. John Burke, Jowitt ‘s Dictionary of English Law, 2d ed. (London: Sweet and Maxwell, 1977), 961-62; E. A. Wurtzberg, ed., Wharton's Law Lexicon, 12th ed. (Boston: Boston Book Co., 1916), 43910.
59. H. S. Giffard, Earl of Halsbury, The Laws of England, (London: Butterworth, 1907-17), 9:226.
60. R. M. Jackson, The Machinery of Justice in England, 7th ed. (Cambridge: Cambridge University Press, 1977), 40, 282-85.
61. Jackson, Machinery of Justice, 85.
62. Douglas Hay, “Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850,” in Policing and Prosecution in Britain 1750-1850, ed. Douglas Hay and Francis Snyder (Oxford, 1989), 343-95; and idem, “Controlling the English Prosecutor,” Osgoode Hall Law Journal 2] (1983): 165-86.
63. Halsbury, Laws of England, 9:232. 97.1 will be examining the “criminalization” of Quarter Sessions in another article.