victim and the prosecution witnesses, bound them over in recognizances to en-
sure their appearance in court, examined the accused and committed him or
her to gaol to await trial. This is what the law required. But Brocas also dis-
charged almost half of those accused of felony. He did so, most commonly, in
cases in which the accused had been charged merely on ‘suspicion’ of commit-
ting the offence (sometimes great or ‘violent’ suspicion) and on the grounds that
the evidence against them was not persuasive.
There were no such cases in the charge books in the 1690 s or the early years
of the eighteenth century. It is, of course, possible that the attorneys who kept
those books thought it unnecessary to note cases that had been dismissed, and
that what we are seeing by Brocas’s day is simply a decision to include them after
all. But that seems unlikely. Such an explanation would have required an agree-
ment among all four attorneys over many years and a consistency of practice
that would have been at the least unusual. Nor are there suggestions in other
records kept by the attorneys that the lords mayor in the 1690 s felt free to dis-
charge men and women accused of felony even if they thought the evidence
weak.^72
I labour this point because a process that resulted in the release of an accused
felon marks a significant change in the nature of the preliminary hearing by the
second quarter of the eighteenth century. It had become something more than
a procedure to gather the evidence that would prove the guilt of the accused at
trial. It is important to note that not all charges made on suspicion were thrown
out. Brocas and other magistrates in 1730 sent a number of cases to trial in which
the prosecutor could only say that he or she suspected the accused of commit-
ting the offence.^73 There must, therefore, have been a hearing—a form of en-
quiry into the nature and strength of the evidence that supported the
prosecutor’s belief in the defendant’s guilt. And it is clear that such an enquiry,
such testing of the evidence, allowed defendants to bring testimony of their own
to counter the suspicion they were under. It is the holding of an enquiry—an en-
quiry that might end in defendants under suspicion being discharged or sent to
trial—that seems to be new, going as it did far beyond the procedure envisaged
by the Marian legislation and beyond the practices followed in the 1690 s. That
106 City Magistrates and the Process of Prosecution
(^72) Apart from the formal Charge Book, the attorneys who sat with the lord mayor recording his busi-
ness also kept a much rougher set of minutes, the main purpose of which seems to have been to note the
work they did that brought them fees. One such book covers the period 1690 – 7. It consists mainly of
notes of work done and the fees owing (or paid), some of which work was not included in the more for-
mal Charge Book: the Fee Book, for example, includes notes of warrants issued by the lord mayor as he
sat for magisterial business—warrants to authorize the arrest of a suspect or a search for stolen goods and
the like—and it seems likely that they would include any work they did in the course of the magistrate’s
investigations into a felony case that ended with the discharge of the accused if that earned them a fee
(CLRO: Charge Book, vol. 15 ).
(^73) This is confirmed by the Old Bailey gaol calendars of 1730. They list every offender to be tried, the
offence, the committing magistrate, and the grounds of the charge: on oath, on suspicion, and ‘on oath
on suspicion’—meaning presumably that the prosecutor swore merely that he or she suspected the ac-
cused of committing the offence.