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

Published online by Cambridge University Press:  28 October 2011

Norma Landau
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Extract

In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals. And, as the English realized, private prosecutors posed a problem: how could the English ensure that private individuals would spend their own time and their own money in prosecuting an offender who had committed an offense against the peace of the realm? Parliament's solution was to proffer the carrot: sixteenth-century statute decreed that his prosecution of the thief was, in itself, action sufficient for the owner of stolen goods to recover those goods, while from 1692, statutes offered rewards to successful prosecutors of highway robbers, burglars, coiners, and other specified offenders. In contrast, England's magistrates wielded the stick, binding a plaintiff bringing an accusation of felony to prosecute an indictment against the alleged felon. As a result, private prosecutors of major offenses were both bribed and compelled to prosecute. Private prosecutors of more minor offenseswere neither bribed nor compelled to prosecute, and yet they did, nonetheless, prosecute indictments. Why?

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Articles
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Law and History Review , Volume 17 , Issue 3 , Fall 1999 , pp. 507 - 536
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Copyright © the American Society for Legal History, Inc. 1999

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References

1. 21 Henry 8, c. 11.

2. Radzinowicz, Leon, 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.Google Scholar

3. A mid-sixteenth-century statute, 2 & 3 Phil. & M., c. 10, commanded magistrates to place in recognizance witnesses against those apprehended on charges of felony, the recognizance to be discharged when the witness appeared to give evidence on prosecution of an indictment. By the seventeenth century, this statute was being interpreted as commanding magistrates to bind a plaintiff who accused an apprehended defendant of felony in recognizance to prosecute a bill of indictment. See Burn, Richard, The Justice of the Peace (London, 1756), 208Google Scholar, under “Examination.” By the early eighteenth century, if not before, the overwhelming majority of prosecutors of charges of felony at the Old Bailey (Middlesex side) had been placed in a recognizance to prosecute.

4. A large proportion of indictments at Stuart and early Hanoverian Quarter Sessions were charges against people who had failed to maintain parish amenities or who had violated laws regulating the economy. Almost all indictments of the first variety, and many of the second, were brought by parish officers. No such indictments are included in this analysis.

5. The indictments here categorized as indictments for nonfelonious offenses against the person also include indictments for rout, attempted rape, false imprisonment, the rescue of someone in custody, and the solicitation of murder. Indictments that couple a charge of offense against the person to other types of charge—such as perjury, blackmail, or an offense against property—are not here categorized as indictments for offenses against the person.

6. Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986), 457–58Google Scholar, 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. Doob, A. N. and Greenspan, E. L. (Aurora, Ontario: Canada Law Book, 1985), 42Google Scholar, suggest that a greater proportion of those convicted of assault reached such settlements. King, Peter, “Punishing Assault: The Transformation of Attitudes in the English Courts,” Journal of Interdisciplinary History 27 (1996): 43–74CrossRefGoogle Scholar, 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. Shoemaker, R. B., Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660—1725 (Cambridge: Cambridge University Press, 1991)Google Scholar, notes that prosecutors 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: Sharpe, J. A., Crime in Early Modern England, 1550–1750 (London and New York: Longman, 1984), 45–46, 178–79Google Scholar; Emsley, Clive, Crime and Society in England, 1750—1900 (London and New York: Longman, 1987), 140–41.Google Scholar

7. As this article argues that most prosecutors bringing indictments at Middlesex Quarter Sessions for nonfelonious offenses against the person did so in an attempt to obtain some form of compensation from their defendants, it has to confront Shoemaker's argument in Prosecution and Punishment. Prosecution and Punishment contrasts Middlesex's indictments to the recognizances returned to its Quarter Sessions that were unassociated with indictments. It argues that indictments “rarely” resulted in out-of-court settlements or compensation paid the plaintiff (see especially 85) but that the recognizances unassociated with indictments that were returned to Quarter Sessions usually emanated from disputes settled before Quarter Sessions met and so from settlements that often included compensation paid the plaintiff (see especially 95, 98, 101–11). My findings suggest different conclusions about both recognizances and indictments and so about the nature of Quarter Sessions, the purposes for which it was used, and the types of behavior likely to be reflected in its records.

In “Appearance at the Quarter Sessions of Eighteenth-Century Middlesex,” London Journal 23, no. 2 (1998): 37–40, I examine Prosecution and Punishment's evidence that recognizances unassociated with indictments usually emanated from disputes settled before Quarter Sessions met and conclude that this evidence applies to only a very small proportion of such recognizances returned to Middlesex Quarter Sessions. It is therefore unlikely that a large proportion of recognizances that were returned to Quarter Sessions and were unassociated with indictments represent disputes that concluded with compensation given to plaintiffs.

As this article states, I also found evidence that contests Prosecution and Punishment's assertion that indictments rarely resulted in compensation paid to prosecutors. Since much of Prosecution and Punishment's evidence about proceedings on recognizances and indictments is the letters to the court preserved in Middlesex's Sessions papers, and since most of this article is based on other types of evidence, it might be inferred that there is little evidence in these letters that indictments produced settlements between prosecutors and their defendants. It is therefore pertinent to note that some of the evidence in letters to the court of settlement of disputes that Prosecution and Punishment presents as emanating from disputes that generated recognizances unassociated with indictments actually emanates from disputes that generated indictments. As part of its evidence that justices routinely returned to Quarter Sessions recognizances emanating from disputes settled before Quarter Sessions met, Prosecution and Punishment presents (103, n. 31) a petition about a recognizance to traverse an indictment (London Metropolitan Archives [hereinafter LMA], M/SP 1707, Oct. no. 7) and a petition about the recognizance of an indicted defendant (M/SP 1720, Oct. nos. 68a, 68c). Its evidence that justices exerted pressure on those bound in recognizances to settle disputes includes (107, n. 44) a certificate about a recognizance to traverse an indictment (M/SP 1720, Oct. no. 134). Similarly, the evidence for its argument that sureties to a recognizance worked to ensure both that the principal to the recognizance appear at Sessions and that the dispute that generated the recognizance be settled (108–9) includes in n. 50 a surety's statement about an indicted defendant (M/SP 1720, Oct. no. 30) and a surety's statement about the principal in a recognizance to prosecute (M/SP 1719, July no. 5a) and in n. 54 statements from sureties bound for indicted defendants (M/SP 1720, Oct. no. 65, and M/SP 1691, Jan. no. 10).

8. Of 122 indictments for such offenses at Middlesex Quarter Sessions in January and February of 1702 and 1756, only six were brought by prosecutors compelled by recognizance to prosecute (LMA, MJ/SR 1980, 1982, 3048, 3049). It may be that magistrates were more likely to bind prosecutors by the end of the century. Four such prosecutors were bound for Middlesex's Quarter Sessions of April 1797, when at least thirty-nine such indictments were brought (MJ/SR 3611). The indictments themselves are lost, and it is likely that some of the thirty-three indictments brought at that Sessions whose charges cannot now be discovered from other sources were indictments for offenses against the person brought by prosecutors who had not been bound to prosecute. Prosecutors compelled by recognizance to prosecute were prosecuting either defendants who had been incarcerated before indictment or defendants charged with more heinous assaults, though not all such prosecutors were bound in recognizance to prosecute. King, “Punishing Assault,” 53, 57 (tables 6 and 9) and n. 13, suggests that about one-third of prosecutors of indictments for assault at Essex Quarter Sessions from 1760 to 1799 were bound in recognizance to prosecute.

9. 2 & 3 Phil. & M., c. 10.

10. Depositions could not be given in evidence on indictments for misdemeanor. See Chitty, Joseph, A Practical Treatise on the Criminal Law (London, 1816; reprinted New York: Garland, 1978) 1:80–81.Google Scholar

11. The bills of indictment providing the data for this article are specified in the text associated with note 19 below.

12. Of 266 statements in the Quarter Sessions papers of early seventeenth-century Sussex, 225 deal with larceny. See Herrup, C. B., The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 67CrossRefGoogle Scholar, n. 2.

13. Such statements were not part of the formal legal record and so were likely to be discarded. Cockburn, J. S., Calendar of Assize Records: Home Circuit Indictments, Elizabeth I and James I, Introduction (London: Her Majesty's Stationery Office, 1985), 11Google Scholar, discusses the discard of statements returned to Assizes.

14. Similarly, in Kent, whose Quarter Sessions papers are more likely than those of Middlesex to contain examinations and depositions, there are only seven such documents relevant to the 122 bills of indictment for nonfelonious offenses against the person brought at the Sessions of 1708–1709, 1716–1717, 1748–1749, and 1758–1759. Indeed, since only a minority of allegations of nonfelonious offenses against the person generated these statements, it is probable that these statements reveal circumstances atypical of such indictments.

15. 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. Cockburn, J. S. (London: Methuen, 1977), 156, 166–74Google Scholar; Langbein, J. H., “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 267–71CrossRefGoogle Scholar; idem, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 10–18.

16. LMA, MJ/SBP.

17. 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.

18. It should be noted that the structure and function of Middlesex's Quarter Sessions differed slightly from that of other counties. In other counties, Quarter Sessions was held four times a year at dates differing from those of the Assizes. In these counties, bills of indictment were presented either to Quarter Sessions, which had its own grand jury, or to Assizes, which also had its own grand jury. In contrast, Middlesex Quarter Sessions met eight times a year, at the same time as the Old Bailey (Middlesex's version of the Assizes), and all bills of indictment were presented to the Middlesex grand jury meeting at Quarter Sessions. Those bills presented to the grand jury alleging felonious offenses other than petty felonies were then forwarded to the Old Bailey where those bills that the grand jury had found were heard and determined under a commission to deliver the jail of Newgate. Shoemaker, Prosecution and Punishment, 147, n. 80, states that those bills for grand larceny that the grand jury did not find remained in the rolls of Middlesex Quarter Sessions. However, such indictments, along with other bills for offenses usually tried at the Old Bailey that had not been found by the grand jury, were usually forwarded to the Old Bailey and remain in its rolls. For example, of forty-one bills of indictment in the Old Bailey roll for February 1702 (LMA, MJ/SR 1983), seven are bills not found by the grand jury, including four for grand larceny. The Old Bailey heard very few allegations of nonfelonious offenses against the person—usually no more than two or three a session, and these cases are not included in the sample, which examines offenses brought before Quarter Sessions. In this article, a reference to indictments presented to the grand jury at Middlesex Quarter Sessions is a reference to indictments that remained in Quarter Sessions's rolls and so were not forwarded to the Old Bailey.

Since the grand jury at Middlesex Quarter Sessions pronounced on allegations of all offenses, including treason, Middlesex Quarter Sessions had to have powers greater than those specified in the commission of the peace. So, unlike the Quarter Sessions of other counties, Middlesex Quarter Sessions was also endowed with a commission of oyer and terminer, and it both heard and determined some indictments under that commission, indictments that in other counties might well have been relegated to Assizes. (For Middlesex's commission of oyer and terminer, and the relation of Middlesex Quarter Sessions to the Old Bailey, see Charman, Derek, “The Middlesex Sessions of the Peace and the Old Bailey,” Bulletin of the Society of Local Archivists 8 [Dec. 1951]: 7–9.)Google Scholar In the eighteenth century, some indictments for heinous assault were determined at Quarter Sessions under Middlesex's commission of oyer and terminer, and these indictments are included in the samples on which this article is based.

19. These meetings of Middlesex Quarter Sessions were chosen in an attempt both to take soundings at different points in the eighteenth century and to use indictments that could be linked with as wide a range of supporting documents as possible—not only process registers of indictments, but also Sessions Books, estreat books, calendars of the jails and house of corrections, and the clerk's fee books. As some of those indicted at Middlesex Sessions were brought to court under a recognizance returned to Westminster Quarter Sessions or from Westminster's jails, the meetings in the sample were also chosen so as to maximize use of the surviving Westminster records. Defendants to each indictment were traced through Middlesex's records for the four sessions following the indictment, and through Westminster's records for that same period. If these records indicated that the defendant appeared in court or the court took action on the defendant's indictment at a session later than these four sessions, the defendant was then traced in the records of the relevant later session.

20. For the proportion of Surrey defendants against whom its grand juries found indictments, see Beattie, Crime and the Courts, 402.

21. 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.

22. Sharpe, J. A., Crime in Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983)Google Scholar, count derived from 117, table 9; King, “Punishing Assault,” 49; Barbour-Mercer, S. A., “Prosecution and Process: Crime and the Law in Late Seventeenth-Century Yorkshire” (D.Phil, diss., University of York, 1988), 129.Google Scholar It is possible that the records used by Sharpe and Barbour-Mercer did not note all action taken on these indictments.

23. My use of “convict” (noun and verb) includes those defendants who confessed to their indictments.

24. This count of convicts sentenced to incarceration excludes those who received a sentence of incarceration that was then rescinded at the same session at which it was pronounced.

25. Impey, John, The Practice of the Office of Sheriff and Under Sheriff (London, 1817), 132–34.Google Scholar

26. 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.)

27. See the entries in LMA, MJ/EB 161 for Nov. 1796, where a woman convicted on three indictments is recorded as paying a fine of Id. on each indictment.

28. This count excludes defendants who were granted a stay of proceedings.

29. 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. 111, Jan. 11, 1720[1]; W/SP 1753, July no. 15; Chitty, Practical Treatise, 1:342.

30. Covert, Nicholas, The Scrivener's Guide: being choice and approved forms of precedent…. (London, 1740), 1:120.Google Scholar See also: Author of the Attorney's practice epitomized, The Attorney's Compleat Pocket-Book, 6th ed. (London, 1767), 235–36Google Scholar; Bohun, William, The Practising Attorney: or, Lawyer's Office…. 4th ed. (London, 1737), 2:328–29Google Scholar; Hutton, Richard, The Young Clerks Guide: or, An Exact collection of choice English presidents…. (London, 1651), 37, 238Google Scholar; Goodrich, John, The civil and executive officers' assistant. Containing the forms of bonds…. (New Haven, Conn., 1793), 103–4.Google Scholar 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.

31. See LMA, M/SP 1691, Jan. no. 1, which is a petition stating that there were “Gener-all releases drawn ready to be produced” showing that two people who had indicted each other had settled their dispute. M/SP 1707, Oct. no. 7 is a letter stating that the defendant had been granted a release.

32. 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.

33. 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.”

34. 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).

35. 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.

36. Hardy, W. J., 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).Google Scholar

37. For public retraction of actions that offended against honor in eighteenth-century France, see Castan, Nicole, “The Arbitration of Disputes under the ‘Ancien Regime,’” in Disputes and Settlements: Law and Human Relations in the West, ed. Bossy, John (Cambridge: Cambridge University Press, 1983), 255.Google Scholar

38. I 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 forty-nine 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.”

39. Fraser, C. M. and Emsley, Kenneth, 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.Google Scholar

40. Black, S. B., Local Government, Law, and Order in a Pre-Reform English Parish, 1790–1834 (Lewiston, N.Y.: Mellen Research University Press, 1992), 142Google Scholar; Emsley, Crime and Society, 165, n. 27; Styles, John, “Print and Policing: Crime Advertising in Eighteenth-Century England,” in Policing and Prosecution in Britain, 1750–1850, ed. Hay, Douglas and Snyder, Francis (Oxford: Clarendon Press, 1989), 105Google Scholar; Morgan, Gwenda and Rushton, Peter, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-east England, 1718–1800 (London: UCL Press, 1998), 35.Google Scholar

41. 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.

42. 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 1s.

43. Of thirty releases and affidavits of release to the defendants in this sample, twenty-seven 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,” 42–43.

44. 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 Burn, Richard, The Justice of the Peace (London, 1762), 3:294–95Google Scholar, under “Sessions,” and in Chitty, Practical Treatise, 1:430.

45. 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.)

46. 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.

47. 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.

48. Chitty, Practical Treatise, 1:436–37. I want to thank John Beattie for his help in interpreting this phrase.

49. For instance, of the twenty-three defendants who confessed to indictments for offenses against the person found by the grand jury in the sample sessions of 1753 to 1754, only four have the phrase “rel ver” affixed to the note of their confession, and these are the only defendants who had originally pleaded their innocence.

50. 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.

51. 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).

52. 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).

53. LMA, MJ/OC/IV, p. 164d, Feb. 1739/1740.

54. 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”).

Prosecution and Punishment's evidence that settlements for disputes that had generated indictments could be “informal understandings” seems to be the remaining document cited in note 42, M/SP 1707, Oct. no. 7. As this is a petition about an indicted defendant who had been given a release by his prosecutor, it does not refer to an informal understanding. Indeed, it seems unlikely that Middlesex Quarter Sessions would accept an informal understanding as sufficient evidence that a dispute had been settled. Manuals that describe the court's procedure state that, if the defendant had reached an agreement with the prosecutor, then either the prosecutor came to court and acknowledged the agreement, or the prosecutor gave the defendant a “written acknowledgement that he is satisfied.” See Chitty, Practical Treatise, 1:430, 498–99; Crown Circuit Companion (1738), 60 and 10th ed. (London, 1836), 24.

55. Williams, Richard, “Crime and the Rural Community in Eighteenth-Century Berkshire” (Ph.D. diss., University of Reading, 1985), 236–37Google Scholar; 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.

56. The justices were not sitting with the grand jury when the prosecutor presented his bill of indictment to the grand jury.

57. Crown Circuit Companion (1738), 62; repeated in Burn, The Justice of the Peace (1762), 3:295, under “Sessions”; Chitty, Practical Treatise, 1:429–30.

58. 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.

59. LMA, MJ/OC/I, p. 110, 5 Dec. 1720.

60. Kentish Post, 28 Apr.−2 May 1739.

61. LMA, MJ/OC/IV, p. 164d, Feb. 1739/1740.

62. Crown Circuit Companion (1738), 62, repeated in Burn, The Justice of the Peace (1762), 3:295, under “Sessions.”

63. LMA, M/SP 1720, Dec. no. 14.

64. 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.

65. 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.

In King's Bench it was common practice for judges considering the sentence of defendants convicted on indictment “to induce defendants to make satisfaction to prosecutors for the costs of the prosecution, and also for the damages sustained by the injury, whereof the defendants are convicted, by intimating an inclination on that account to mitigate the fine due to the king.” See Bacon, Matthew, A New Abridgment of the Law, with additions by Gwillim, Henry, 6th ed. (London, 1807) 3:544–15Google Scholar under “Indictment A”; repeating Hawkins, William, A Treatise of the Pleas of the Crown, 2d ed. corrected (London, 1724 [reprint, New York: Arno Press, 1972]), 210Google Scholar, bk. 2, ch. 25, sect. 3; and repeated in Chitty, Practical Treatise, 1:8–9, 693–94, 810. See also the report of Ruth Paley's work on compensation to prosecutors bringing indictments in King's Bench in Oldham, James, “Truth-Telling in the Eighteenth-Century English Courtroom,” Law and History Review 12 (1994): 111.Google Scholar

66. This count of those sentenced to a small fine excludes defendants initially sentenced to a higher fine, a fine then reduced to 3s. 4d. or less. This count includes defendants who were also sentenced to incarceration until the fine be paid.

67. LMA, M/SP 1778, Feb. no. 21.

68. That the defendant's sentence had originally been other than a trivial fine is frequently not noted in Middlesex's Process Register of indictments, which was annotated after each session ended. The original sentence was entered, and then crossed out, in the Session's Book for each session. The counts of defendants sentenced to fines over 3s. 4d., and of those whose fines were reduced, include defendants who were sentenced to incarceration until their fine be paid.

69. LMA, MJ/OC10a, Oct. 1777, pp.160–61.

70. LMA, M/SP 1720, Dec. no. 19; MJ/SBB789 (Dec. 1720), bond “p.” Cf. Shoemaker, Prosecution and Punishment, 161.

71. 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.

72. N defendants = 907. N indictments = 552.

73. 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.

74. Bohun, William, The Practising Attorney (London, 1737), 2:276–77Google Scholar, under pt. 6, ch. 4, “Of releases and discharges”; The Young Clerk's Magazine: or, English Law-Repository…. 6th ed., revised and corrected (Philadelphia, 1788), 51, under “Of Releases.”

75. LMA, M/SP 1772, July no. 56, p. 6.

76. Of nineteen releases to indictments for the sample for 1753–1754, three had been signed four or more months before the autumn session at which the defendant or his sureties appeared. Of eight indictments both found at the Session of May 1795 and generating a release, one generated a release granted four months before the court was informed of it in October. As the Sessions papers for 1796 are not available for inspection, it is not possible to present the proportion of releases generated by indictments at the Session of October 1795 which were submitted to the court several months after they were signed. As none of the indictments found in January 1797 led either to a confession associated with a small fine or to a stay of proceedings, it is unlikely that these indictments generated a release.

77. LMA, M/SP 1754, box 5, affidavit of William Curtis sworn at Hick's Hall, 31 Oct. 1754.

78. The only address the clerks had for the principal of and sureties to a recognizance was that given on the recognizance. In the early eighteenth century, the addresses given on most recognizances were limited to the principal's and sureties' parish of residence. By mid-century, most recognizances also identify the street on which they lived. By the end of the century, many recognizances specify the building in which they lived. For decline in the proportion of bonds and recognizances that were estreated during the course of the eighteenth century, see Landau, “Appearance,” 45, table 1.

79. LMA, MC/F, vols. 15, 16, 32. As some of these books have been declared unfit for production, and some pages in others are missing, the count of prosecutors purchasing bench warrants is incomplete.

80. Quarter Sessions's clerks charged 6d. for such a search. 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, 4th ed. (London, 1792), 255.

81. In addition to the works cited in notes 6, 10, and 13 above, see: Hay, Douglas, “Property, Authority, and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, D. et al. (New York: Pantheon, 1975), 17–64Google Scholar; Langbein, J. H., “Albion's Fatal Flaws,” Past and Present 98 (Feb. 1983): 96–120CrossRefGoogle Scholar; King, Peter, “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 25–58.CrossRefGoogle Scholar

82. Langbein, J. H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1178.CrossRefGoogle Scholar

83. Oldham, “Truth-Telling,” 107–13; Langbein, “Historical Foundations,” 1184–86.

84. To Blackstone's dismay. See Commentaries, 4: 356–57, bk. 4, ch. 27.

85. Attorney and Agent's New Table of Costs, 10–12.

86. For the prosecutor to recover more, the judge had to certify that “an actual battery (and not an assault only) was proved upon the trial.” See Burn, Richard, The Justice of the Peace, 22d ed. (London, 1814), 4:181Google Scholar, under “Assault.”

87. LMA, MJ/OC6, 7 Dec. 1753, reimbursement of costs of Joseph Monk. Middlesex's order books also list reimbursement of costs to prosecutors of indictments for petty larceny of 7s. (9 June 1753), 18s. (25 Feb. 1754), and £1 (6 Dec. 1754). These costs accord with those Beattie found were reimbursed to poor prosecutors of indictments for petty larceny at mid-century Surrey Quarter Sessions (Crime and the Courts, 46).

88. LMA, M/SP 1720, Dec. nos. 21, 22, 25. These documents provide evidence for one of the two cases used in Shoemaker, Prosecution and Punishment, to support the contention that the cost at Middlesex Quarter Sessions of prosecuting an indictment through trial, using a solicitor, averaged £4 to £5 (142 and n. 56). However, the charge of £5 6d. referred to in these documents is the solicitor's charge for both prosecuting one indictment for scolding and defending his client against another indictment for assault. (The client appealed against these charges, which Quarter Sessions then reduced to £3 10s. 4d.) The second case Prosecution and Punishment adduces to support its estimate of the costs of prosecution is an affidavit from a defendant's attorney (M/SP 1720, Dec. no. 14) averring that the prosecutor, who had brought an indictment at Quarter Sessions, would not sign a release for less than £4 or £5, as that prosecutor had already begun suit against the defendant in King's Bench—a suit which cost him money and would be annulled by the release.

89. 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.

90. The defendant removed the case after the prosecutor had provided his counsel with a brief and a fee.

91. Burke, John, Jowitt's Dictionary of English Law, 2d ed. (London: Sweet and Maxwell, 1977), 961–62Google Scholar; Wurtzberg, E. A., ed., Wharton's Law Lexicon, 12th ed. (Boston: Boston Book Co., 1916), 439–10.Google Scholar

92. Giffard, H. S., Earl of Halsbury, The Laws of England, (London: Butterworth, 1907–1917), 9:226.Google Scholar

93. Jackson, R. M., The Machinery of Justice in England, 7th ed. (Cambridge: Cambridge University Press, 1977), 40, 282–85.Google Scholar

94. Jackson, Machinery of Justice, 85.

95. Hay, Douglas, “Prosecution and Power: Malicious Prosecution in the English Courts, 1750–1850,” in Policing and Prosecution in Britain 1750–1850, ed. Hay, Douglas and Snyder, Francis (Oxford, 1989), 343–95Google Scholar; and idem, “Controlling the English Prosecutor,” Osgoode Hall Law Journal 21 (1983): 165–86.

96. Halsbury, Laws of England, 9:232.

97. I will be examining the “criminalization” of Quarter Sessions in another article.