the crime. In the December 1678 session we examined earlier, for example, the
judge hearing a rape case forced the jurors to reconsider their verdict when they
acquitted the defendant, sending them back to reconsider until they agreed to
convict—the outcome the bench thought the evidence required.^44 But the
judges’ ability actually to compel verdicts in such cases had been severely limited
by the verdict in Bushell’s case in 1670 and its subsequent elaboration.^45 Some
judges adopted other bruising tactics to get their way—perhaps when they were
under pressure from the government at moments of anxiety to display the
power and authority of the law. There were two such moments at the Old
Bailey in 1689 and 1690 , when judges chastised and dismissed juries that failed
to find the verdicts they required.^46 But most often the relationship between the
bench and the jury was more harmonious than that. The judges could expect
their advice to be taken, and over the long term they were released from
the need to force any particular pattern of verdicts by the establishment after the
Revolution of a form of tenure that made them more independent of the
Crown.^47 On the other side, juries were considerably strengthened in the late
seventeenth century by the explicit defence in the writings of John Hawles,
Henry Care, and others of their right to find verdicts without fear ofjudicial ret-
ribution.^48 The jury emerged from the political and constitutional contests of
the Restoration as a more resilient and more independent body. A jury might
occasionally be chastised and humiliated for defying the judge’s clear recom-
mendations, but a strained relationship between them would not have made
possible the processing of fifteen or twenty felony trials a day. That depended on
their shared understanding of the law, the assessment of evidence and credibil-
ity of witnesses, and of the legitimacy of the punishments they arrived at
276 The Old Bailey in the Late Seventeenth Century
(^44) For this case (Arrowsmith) and the larger issue of the relationship of judges and jurors, see Lang-
bein, ‘Criminal Trial Before the Lawyers’, 291 – 5.
(^45) Green, Verdict According to Conscience, ch. 6.
(^46) After the jury brought in a partial verdict and then an acquittal at the session of December 1689 ,
the judge told them that ‘they did not Act like true English men, nor indeed like true Citizens ofLondon’,
and dismissed them (An Exact Account of the Trials... Decemb. 1678 , 1 – 2 ). It seems clear that the judges at the
February 1690 session—on their own initiative or under orders from the government, anxious perhaps
about disorder in the capital so soon after the Revolution—were determined to send a severe message to
potential offenders in London by threatening large numbers of accused men and women with the death
penalty to make visible the terror of the law. Failing to get satisfactory verdicts on the first day of the ses-
sion, the judges declared the jurors to be ‘unfit to serve’, reprimanded and discharged them. Their re-
placements on the following day were so satisfactory that a remarkable total of twenty-five defendants
were sentenced to death when the session was concluded (OBSP, February 1690 , pp. 1 – 3 ). Ten of those
condemned to death were women, of whom eight were reprieved.
(^47) For the uncertainty ofjudicial tenure under Charles II and James II, see Alfred F. Havighurst, ‘The
Judiciary and Politics in the Reign of Charles II’, Law Quarterly Review, 66 ( 1950 ), 62 – 78, 229– 52 ; idem,
‘James II and the Twelve Men in Scarlet’, Law Quarterly Review, 69 ( 1953 ), 522 – 46. Tenure based on good
behaviour rather than the monarch’s will emerged in practice in the reign ofWilliam III and was estab-
lished in the Act of Settlement ( 1701 ). See David Lemmings, ‘The Independence of the Judiciary in
Eighteenth-Century England’, in P. Birks (ed.), The Life of the Law( 1993 ).
(^48) John Hawles, The Englishman’s Right( 1680 ); Henry Care, English Liberties: or, The Free-Born Subject’s
Inheritance( 1682 ); A Guide to Juries: Setting Forth their Antiquity, Power and Duty.. .( 1682 ).