There
is no authentic voice of the eighteenth century criminal trial as no verbatim
records were made during this period; what does survive in newspapers and the
few broadsides is edited and, by its nature, incomplete. Judicial sources are
bureaucratic records created for specific administrative purposes and contain
little, if any, commentary on social policy. Witness statements are likely to
contain bias, when prosecutors overstated a case, defendants understated any
part taken by them in a criminal activity, and third party witnesses provided
hearsay evidence. As has always been the case, witness statements were
susceptible to ‘false memories’, depending on the length of time between
witnessing an event and making a statement.
As described in my previous blog, http://c18thgirl.blogspot.co.uk/2014/07/locating-and-selecting-primary-sources.html,
the clerk of assizes was expected to produce four minute books, each serving a
different purpose. Discrepancies between the record books arise because of the
different purposes each set of minutes served. The clerk of assize’s copy (Crown Minutes) was a
record of attending judges, grand and petty jurors, accused and indictments
heard by the petty jury; the judge’s copy allowed him, for instance, to comment
on an appeal for mercy from a capital sentence; the sheriff’s copy allowed him
to claim the revenues due from court fines and forfeited recognizances; while the
gaoler’s copy was a record of prisoners delivered at the beginning of the
assize sessions and returned at the end, with details of particular punishments
to be inflicted. As a result, minute books for the Yorkshire assizes omit any
detail of bills dismissed by the grand jury; fines imposed are more likely to
be noted only in the sheriff’s records; while the length of a period of hard
labour was most likely to be recorded in the gaoler’s copy.
TNA ASSI 41/3 March 1740, extract from the Crown Minute Books for the Northern Circuit - showing the verdict but not the sentence.
The absence of a recorded verdict or sentence in the
surviving minute books does not necessarily mean the failure of a prosecution
but should act as a prompt to consider alternative dispute resolution options
within the entire judicial process. There were a number of procedures which
would cause a trial to be adjourned and might explain the failure of a clerk to
annotate the minute books with an outcome that was determined at a later date:
a trial for a misdemeanour could be set aside to allow the parties to reach a
private settlement; a hearing could be adjourned to a later date to allow a
traverse (challenge) to an indictment to be separately determined; questions on
legal process in a lower court were referred to the King’s Bench; while many victims
failed to prosecute their complaints for a range of personal reasons.
Magistrates were bound (in theory) to commit an accused
felon to gaol pending trial and the length of time spent on remand depended on
whether the complaint was referred to the following quarter
sessions or the biannual assizes. In such circumstances, it is possible
that many victims took advantage of the remand system to punish an accused man
or woman with a short spell in gaol, without necessarily going to the lengths
of pursuing the prosecution by appearing for the trial. Other victims may have
been satisfied by the restitution of their property, or by a victim publicly
begging the pardon of the accuser, while a man or woman bound by an order to
keep the peace imposed by a single magistrate could be released from the court
without further charge, if he or she had managed to keep out of trouble between
the time of the order and the court sitting.
A successful challenge to an indictment meant that the
claim did not return to the referring court for trial, while some matters
referred to the King’s Bench were determined there and, similarly, did not
return to the initiating court. However, matters referred to the King’s Bench were
dependant on an understanding of the
judicial processes, plus access to independent financial means to pay for legal
representation to put legal arguments; therefore, they are likely to account
for only a small percentage of unknown outcomes.
To compound these problems, any collection of criminal
records is bound to be flawed by the history of record keeping that precedes it
and the evaluative judgements exercised in selecting data which, in the case of
legal records, was itself selected by witnesses, legal clerks, justices of the
peace and assize judges, the ministry of justice, local record offices and the
Public Record Office (now The National Archives, TNA) , and by each subsequent researcher.
