Readers will note that these professionals noted are always referred to as ‘he’. This is because there was relatively little scope for working women in these professions until the late nineteenth century at the very earliest.
Chapter 5
THE COURTS, PART 1: CRIMINAL
Many of our ancestors have been involved in crime, either as victim, perpetrator, suspect, juror or magistrate. Many courts have existed in the past which dealt with crime, and they have imposed different types of punishment. These courts have created a vast corpus of archives which can be examined by researchers. It is worth pointing out that, up to 1733, Latin was the language of legal record, and we will revisit this in Appendix 1. However, this rule was not always prevalent, and in any case the key parts of documents can usually be understood without one having to be able to translate their entirety.
Assizes
The assize courts were introduced in Henry II’s reign throughout England. They divided the country into six circuits, each of several adjoining counties: the northern, the Midlands, Oxford, Home, Western and Norfolk. There were also the palatine jurisdictions of Cheshire, Durham and Lancashire, which, although they were outside these circuits, operated in a similar manner. Middlesex, which included London, was also outside the six circuits and was under the jurisdiction of the Central Criminal Court, popularly known as the Old Bailey.
Assize judges toured each circuit twice a year to try criminals at the county town. They tried capital offences; not only murder, but many others, and there was no firm dividing line between those tried at the assizes and those tried at quarter sessions, since, for example, both courts could try theft and assault.
Assize records post-1559 are held at TNA in series ASSI. They include lists of judges, jurors and those accused. Indictment files lay out the charge against the prisoner, but list the latter as having a fictitious occupation and parish of origin (this will almost always be where the offence took place instead). Deposition files, giving witness statements, are a more reliable guide to details about a prisoner. To take an example from the Northern Assizes of summer 1749. Thomas Mawson, a black drummer in a regiment of dragoons, killed John Johnson, an officer’s servant. Mawson is described (fictitiously)as being ‘a yeoman’. Apparently, according to one witness, the latter ‘did make an assault … did strike and push the said John Johnson with his hands and knees in and upon the left side of the belly of him’. Mawson’s statement was that Johnson was a friend of his previously, but instigated the quarrel that led to his death. Dr Cotes was another witness and he deposed that Johnson was already in a poor state of health prior to the brawl. Mawson was acquitted.
Execution of the Earl of Stafford, 1641. Paul Lang’s collection.
Gaol and minute books often list the accused, in chronological order, and summarize cases, noting plea, verdict and sentence. Few records survive for the Middle Ages (to be found at JUST1, 3, 4 and at KB9); from the sixteenth century their survival is more common, but even then it can be patchy and varies between counties. For example, for Bedfordshire, there is an almost complete run of indictments from 1658, but there are no surviving depositions prior to 1832. A useful list, county by county, of surviving archives post-sixteenth century, is given in Family History at TNA. They do not include transcripts of trials, giving what was actually said. Newspaper accounts are a useful source for this, but are fairly limited until the nineteenth century unless the case was of unusual interest, such as in the case of the mysterious death of a Cambridge undergraduate in 1746.
Some assize records have been indexed in the Calendar of Assize Records, which covers those of the Home Circuit (Essex, Kent, Hertfordshire, Surrey and Sussex) for the sixteenth and seventeenth centuries. Witnesses at the North Eastern Circuit between 1613 and 1800 can be found in the catalogue for ASSI 45. However, most are unindexed, so if you do not know when a trial took place, or indeed if you have criminal ancestors at all, searching these records could be a very time-consuming business indeed.
Middlesex/London was outside the assize system, and was covered by the Central Criminal Court, the Old Bailey. For the period 1674–1913, transcripts of the trials have been made available at www.oldbailey.online. Furthermore these can be searched by the names of anyone listed in the transcripts, including witnesses, places and types of offence. Well worth a speculative search.
Another important London criminal court was the King’s Bench, although it also heard trials from elsewhere in Britain. Plea rolls are KB26–8 and for indictment files KB9, up to 1675, then divided into London cases (KB10) and elsewhere (KB11). Witness statements survive in KB1–2, especially from the eighteenth century onwards. There is a contemporary index to plea rolls at IND1; for London and Middlesex this is for 1673–1843, 1638–1704 and 1765–1843.
The palatinate jurisdictions of Chester, Lancashire and Durham are to be found at TNA, in, respectively, CHES, PL and DURH. These assize records are very similar to those already mentioned.
The Court Leet
This was a manorial court which dealt with petty offences and will be detailed further in Chapter 9. However it is worth noting that in some counties it continued to administer justice until the seventeenth century when it was superseded by the quarter sessions.
Quarter Sessions
Justice was also administered on a county basis (Yorkshire, having three ridings, had three; some boroughs also had their own court, too). It was in 1285 that the office of Justice of the Peace (JP) was first introduced. A JP was a magistrate, unpaid and always a man of local substance, as the office carried a property qualification. He could pass judgment in person by himself on minor offences, or with one or two colleagues, in what was known as petty sessions, though these only begin to be formally recorded by the early nineteenth century. All the county’s JPs would meet together four times a year in a prominent town in the county; hence their meetings were known as quarter sessions, which commenced in 1361.
JPs could deal with a vast number of offences, including theft, sedition, witchcraft, assault, disturbance of the peace and keeping an unlicensed alehouse. Theft could be a capital offence, depending on the value of the goods stolen (goods worth over a shilling were classified as being grand larceny and carried a capital sentence), some being deliberately undervalued. From the sixteenth century, they were also given social and economic legislation to implement and administer, especially concerning the welfare of the poor and the upkeep of bridges and roads. They also had to deal with religious dissidents: Catholics and Protestant Nonconformists. From the sixteenth to the nineteenth centuries the JPs were the real rulers of the counties, so had immense power.
Many archives were created by the actions of quarter sessions, though most only survive from the sixteenth century onwards. Perhaps the principal records are the Order Books, also known as Minute Books. These are the official records of the four annual meetings of the court. They usually begin with the date and place of the meeting, then list those magistrates present. There then should be a list of decisions of the court. Those accused of crimes, with brief details of offence and location, are listed, then the sentence is recorded. Indictment bills are another major source. They are often grouped together by the date of the sessions which dealt with them. These are scraps of paper, each one concerning a different defendant, with his or her age, parish and occupation. The crime will be stated and, if it is a theft, the value of the item stolen is often given. At the end there will be the note ‘true bill’ if the defendant was found guilty. There may also be lists of prisoners and witnesses. Periodically those not attending their Anglican church would be fined, so lists of those fined, with occupation and address are given, though after about 1689 this feature of quarter sessions died out as Nonconformists were legally allowed to worship.
These records also show judgments when the JPs were called to arbitrate between parishes in dispute with one another. It was not unknown for parishes to squabble over who should pay poor relief for a pauper whose settlement was
uncertain. The JPs would decide between the parishes and allocate responsibility accordingly.
These archives are to be found at the county record office to which the archives relate (those few surviving records for the fourteenth and fifteenth centuries are at TNA, JUST 1). As said, their survival is variable and there may be gaps, especially with the earlier centuries. In some cases you will be allowed to view the original documents. Elsewhere, such as at Cheshire Archives and the Centre for Kentish Studies, the documents will be on microfilm.
Some corporations, such as York and Newcastle, also had the power to hold criminal courts, and their records are similar to those of the county quarter sessions. These records will be found in the borough archives of the city in question.
Some quarter sessions records have been indexed and published, and this is obviously a very great help. These include Middlesex (Westminster was excluded from the county’s jurisdiction, up to 1844) for 1559–1709, Hertfordshire and the North Riding of Yorkshire, all in several volumes. So even if you don’t know whether your ancestors were caught up in crime, but you know that they lived in these counties in the periods covered by these, a speculative search is always worthwhile and relatively quick.
Punishments
There were a number of sentences which could be imposed on those found guilty. Mutilation, flogging, hanging (beheading was for the nobility only) and, later, transportation, were four of the better known. The basic punishment should be noted in the assize or quarter sessions archives.
Transportation was first introduced in 1615 as an alternative to the death sentence. Prisoners had to petition for mercy and would be shipped out to the American colonies, where they would be sent to work on the plantations. From 1718, this would usually be for seven years if the offence was non-capital and fourteen if it was a capital sentence. The number transported from 1615 to 1775 was about 40,000. As well as criminals, after unsuccessful rebellions against the Crown in 1685, 1715 and 1745, many hundreds were sent to the colonies for given periods of time, but many never returned.
With the onset of rebellion in the colonies in 1775, this practice could not be continued and prisoners were held in hulks for a period. Yet with the discovery of Australia in the next decade, there was a new home for convicts. Transportation was at its height in the 1830s, with an average of 4,000 transportees per year. After our period the number rapidly declined, especially after the Penal Servitude Act of 1853 and in 1867 transportation to Australia ended. Between 1787 and 1867, over 160,000 people were sent to Australia this way.
The stocks, Aldbury, Surrey. Paul Lang’s collection.
Transportation records are available at TNA. Those sent to the West Indies or the American colonies can be searched for on CD-Rom, British Emigrants in Bondage, covering 48,000 people from 1614–1788. This gives a convict’s name, the date and place of the trial, occupation, month and year of departure and arrival, name of the ship and destination. Treasury Books (T53) for 1716–44 list convicts from the Home Counties, the ship they sailed on, the captain’s name and destination. Calendars of State Papers Colonial America and West Indies provide similar information, up to 1734. Transportation records can also be seen on Ancestry.
Those sent to Australia are recorded by date of transportation and then by county where sentence was passed. They will name the ship sailed on, date of departure and arrival, and destination. Transportation did not always occur immediately after the trial; it could take up to a year or two later. Details can be viewed on microfilm at HO11, but the ones for Australia have been published and indexed in numerous volumes. They can also be seen in TNA’s library. They give prisoner’s name, name of the ship they sailed on, date of despatch and arrival and the name of the province they arrived at. You should also learn when they gained their parole.
Musters were taken in Australia between 1788 and 1867 and these can identify what happened to convicts after arrival (series HO10). Names, age, religion, residence, occupation, family, land held and whether they arrived as free emigrants or convicts are all noted.
Prisons
Although we now think of incarceration as the principal method of punishment, except for community service, this was a Victorian concept. Until the nineteenth century, prisons were primarily to hold prisoners prior to trial and prior to receiving their actual punishment. Prisons were rarely purpose-built structures, but often converted buildings, such as castles, as in the case of Guildford in Surrey and Lancaster Castle. There were also village lock ups, usually capable of holding one or two prisoners for a very temporary time period. There were also houses of correction, such as that in Wakefield. Those who were in prison for any length of time were usually debtors, and we’ll investigate this in the next chapter. For most of the period covered by this book, it was the county’s High Sheriff who was responsible for the county gaol and also for entertaining the assize judges on their bi-annual visit.
Calendars of gaol delivery list prisoners in any one prison at par ticular times. These are usually held in the record office for the county where that gaol was located. Some prison records are still held at the prison itself, but these tend to be the more recent ones, so few researchers pre-1837 will need to contact them.
Some registers of prisoners are held at TNA. These are returns for Middlesex and London for 1792–1849, held in series HO26. For the rest of England and Wales, HO27 includes returns from gaol registers from 1805.
Some prisoners were held in prison hulks, old ships which were often moored near Royal Navy establishments. These were in use from 1776 to 1857 and usually were temporary holding stages for prisoners awaiting transportation. This was especially the case in 1776–87 in the hiatus when there was nowhere for them to be sent (the American colonies being in revolt and Australia being as yet undiscovered). Registers of prisoners in hulks are held at TNA, series HO9, for the years 1802–49. Quarterly registers of prisoners in hulks from 1824 are held at HO8. These can give information about the behaviour and health of the prisoners, when they left the ships and/or were transferred to other gaols. Quarterly returns also exist for 1802–31 at T38/310–38. Indexes to a few particular ships have also survived, at ADM6/418–23 and HO7/3, covering the 1820s and 1830s.
Interior of the Tower of London. Paul Lang’s collection.
Appeals for Mercy and Pardons
Many crimes carried the death penalty, but its execution (no pun intended) was relatively rare. In part this was because there were petitions for mercy sent on the behalf of the condemned. Youth, extreme old age, provocation, dependent relatives and previous good character were all used to advocate a lesser punishment. These are found at TNA. Patent Rolls (series C66) from 1654–1717 include pardons on condition of transportation, but detail is minimal and these records are in Latin. Prior to 1784, the Secretaries of State were written to, so a search of State Papers Domestic is often required. Criminal Entry Books in SP44 are another useful source for pardons, refusals and respites in the eighteenth century.
From 1782, the Home Office correspondence in HO42 can be checked, but so great was the volume of work in this regard that a separate record series was created, HO47, covering 1784–1830. These are judges’ reports following the end of assizes and Old Bailey sessions in which capital verdicts had been given. They give the judges’ opinions on the verdict and the jurors and witnesses. There can be character references concerning the accused and other personal information about them. Some of these reports have been indexed (the first twenty-two volumes covering 1783–99) and work is ongoing and has currently reached the early 1830s. Outcomes of petitions can be found in the Criminal Entry Books in series HO13, and the above indexes include references to these books, too. Other letters and statements from trial judges from 1819–40 are in series HO6 and these can give further information about the condemned and their crimes. Actual petitions for mercy from 1819–40 can be located at HO17, and these are being indexed, too. Formal records of pardons from 1782–1849 are in HO13.
Treason
‘Treason ne’er doth prosper/What’s the reason?/Because if treason prosper/None dare call it treason’ ran a sixteenth-century ditty. Rebellion against the English and from 1707 British state rarely succeeded. Those who ended up on the losing side often paid the penalty with their life or liberty. Major rebellions, such as those in 1685 (Monmouth’s rebellion) and the two major Jacobite rebellions (1715 and 1745) resulted in large numbers of prisoners. Special commissions of judges were appointed by the government to try these prisoners. Only a small proportion were executed; most were transported, some were pardoned, a few escaped, some were pardoned on enlistment in the army and some died in prison. The fates of some are unknown, so presumably they died in prison. Sedition was a lesser offence; those speaking in public against the monarch or saluting their foes could earn a fine, gaol sentence or a whipping. Both quarter sessions and assizes dealt with such offences.
Wigfield’s The Monmouth Rebels (1985) provides lists of those transported following this rebellion. Lists of the several hundreds of English Jacobite prisoners of 1715 and their fates can be found in Gooch’s The Desperate Faction (1995), for the north-east of England and for the north-west in Oates’s Last Battle on English Soil (forthcoming). Those far fewer English prisoners of 1745 can be found in the Scottish Historical Series ‘Prisoners of the 45’ (1928–9). All are arranged alphabetically and evidence has been taken from a variety of archives at TNA, especially KB8/66 for 1715, and TS11 for 1745. The latter include brief statements of the evidence against each man, and reasons they gave to minimize their guilt (for example, inebriation on enlistment). State Papers Domestic also list prisoners. These records can give the name, occupation, parish of origin, unit in which the man served, rank, prison career as well as eventual fate, but not all this information is available for each man.
Tracing Your Ancestors from 1066 to 1837 Page 7
