to each case seems hardly to have been affected—making it clear that verdicts
had been reached in most straightforward felony trials as rapidly in private as
they were now reached under the gaze of defendants and spectators.
The speed with which the vast majority of criminal trials were conducted in
the century after the Restoration was the result in part of the limited amount of
evidence put before the jury by the prosecution (conducted very largely by the
victims themselves) and the even more limited responses offered by most defend-
ants. Neither side, as we have seen, was represented by counsel until the third
decade of the eighteenth century and even then, and for several decades, few
prosecutors or defendants engaged lawyers to act for them. Nor were there pro-
hibitions against testimony that might be prejudicial to the defendant or mis-
leading to the jury—the kind of evidence (hearsay, for example) that is shielded
from a modern jury by an elaborate structure of law, activated in the courtroom
by the vigilance of lawyers and the rulings of the judges. In the absence of
lawyers, there was no one to raise objections to such evidence as a matter of rou-
tine, and in the absence of routine, no hardening of practice. Rulings about mat-
ters of evidence were made occasionally by judges. They might warn a jury
about the dangers of hearsay evidence in a particular case, or the safety of an ac-
cused’s confession made in the course of the pre-trial procedure, or the problem
of the uncorroborated evidence of accomplices. But they would almost certainly
leave it to the jury to evaluate such evidence.^36
It is difficult to discover how juries actually arrived at verdicts. Within a mat-
ter of minutes, twelve men came to unanimous decisions about the guilt or in-
nocence of defendants, some of whom they were condemning to death. It is
striking that they only rarely disagreed; or at least only on rare occasions did
they apparently require more than a few minutes to come to a verdict, whether
they deliberated in the privacy of the jury room, in which they might consider
the fate of eight or ten prisoners at once, or in public in the courtroom, taking
each case in turn. One can only presume that they could come to rapid agree-
ment in property cases because they shared assumptions and understandings of
the law and the assessment of evidence and character. The juries in the City of
London in this period were very different from their modern counterparts in
that they were more socially cohesive. Many jurors must have known one an-
other and have served together at previous sessions. They were also more
knowledgeable at the outset about the law, about the tasks they were asked to
perform, and the options open to them. For juries made up of employers and
The Old Bailey in the Late Seventeenth Century 273Middlesex jurors who had to deal with batches of twelve or more; the City jurors continued to deliber-
ate on fewer than that. The lord mayor went on to say that to facilitate deliberation in the courtroom that
‘their seats were accordingly now so placed, that they might consult one another, and give in their ver-
dict on each trial immediately.. .’. The high court judges present confirmed that this was the practice ‘in
all other courts’ (London Evening Post, 5 – 7 December 1738 ).
(^36) For the development of the law of evidence, see Langbein, ‘Shaping the Eighteenth-Century Crim-
inal Trial’, 123 – 4 ; idem, ‘Historical Foundations of the Law of Evidence’, 1,197–1,201; T. P. Gallanis, ‘The
Rise of Modern Evidence Law’, Iowa Law Review, 84 ( 1999 ), 499 – 560.