Brocas and other magistrates enquired into the evidence offered by prosecutors
who brought charges on suspicion is abundantly clear from the Charge Book.
The discretionary pre-trial dismissal of accused felons was commonly justified
by the weakness of the prosecutor’s evidence or the strong character evidence
offered in response on behalf of the defendant. Edward Viccarys, for example,
who had been held overnight in the Wood Street Compter and who was
brought before Brocas on suspicion of stealing a silver tankard from a public
house, was discharged when he claimed to have left the table at which he had
been sitting before the tankard was missed, and when several of his former mas-
ters appeared before the justice to give Viccarys ‘a good character’.^74 Or John
Bransford, brought in by a constable, having been charged by someone with ‘a
violent suspicion’ of stealing a clock valued £ 4 from a church. The Charge Book
records that ‘no proof appearing to make out the fact ag[ains]t him and three
severall persons appearing of good repute to his Character and giving him a
very good one, he was disch[arge]d’.^75 Others were released when prosecutors
were unable to prove the facts alleged, or, as in the case of Ann Anderton, when
the victim of her alleged pocket-picking ‘could neither say she was the person
that pickt him up or that Stole his Watch on his examination of Oath’.^76
Decisions of this kind explain why almost half the felony cases Brocas heard
concluded with the accused being released without trial. This does not mean
that all weak cases were now likely to be thrown out or that all of those dismissed
deserved to be. But it does mark a significant change in the character and pur-
pose of this stage of the criminal process; it was indeed a fundamental step to-
wards what Langbein has called a ‘judicialized’ prosecution process.^77
The alteration we have noticed, which expresses some apparent concern for
the fair treatment of the accused in certain cases, made for a more complex pro-
cedure, and a more uncertain outcome, for those bringing charges. This may
help to explain why it is in this period that the first signs appear of the intrusion
of lawyers into the criminal process, beginning most significantly with the en-
gagement of solicitors in the preparation of ordinary criminal cases. We will re-
turn to this, and to the broader matter of the changing involvement of lawyers
in the prosecution and trial of felonies.^78 I point to it here only as part of a larger
change in the prosecution process that might explain why the aldermen of the
City were increasingly reluctant to take on the full burdens of the magistracy,
and why that reluctance was apparently pronounced in the early decades of the
eighteenth century. Their changing social pretensions may have contributed to
their withdrawal, along with the competing demands on their time. But an
equally crucial matter may have been the changing nature of their work.
City Magistrates and the Process of Prosecution 107(^74) CLRO: Charge Book, 1728 – 33 (under date 7 – 8 December 1729 ).
(^75) Ibid. ( 23 December 1729 ). (^76) Ibid. ( 15 March 1730 ).
(^77) Langbein, ‘Shaping the Eighteenth-Century Criminal Trial’, 63.
(^78) See Ch. 8 ; and Langbein, ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth
Century’, 314 – 65.