making the point (unless he was, understandably, confused by the procedure)
that the jury—his ‘country’—had wanted to acquit him. According to a subse-
quent petition by Taylor’s father, the lord mayor had then said to him:
You have no mind to part from your country? Then he had the benefit of his clergy [that
is, was allowed to prove his literacy]. The Bench asked: Does he read? and the minister
answered: He does. Then the Lord Mayor called for the book, and pricked a pin in
another place in it, for him to read again. Then he, not reading in that place, is to be
transported.^112
Another form of manipulation in the interest of creating an alternative to the
branding of clergy led to sixty-two men and thirty-four women being whipped
on the bare back for offences against property. In this case, it was a manipula-
tion that was available only to the jury, though they no doubt had advice from
the bench about the appropriateness of applying it in particular cases. Whip-
ping was the established punishment for petty larceny, the theft of goods under
a shilling in value, and the only form of theft not subject to capital punishment
at common law. As we have seen, unlike justices of the peace in the rest of the
country, the magistrates ofLondon and Middlesex did not send charges of petty
larceny to either their sessions of the peace or the sessions of gaol delivery at the
Old Bailey. On the other hand, they clearly expected that juries would be in-
clined to use their discretion to convict a number of those charged with more
serious offences by reducing in their verdicts the value of the goods stolen to
something under a shilling—ten pence being a favoured sum.
Whether this verdict was a favour to the defendant depended on the alterna-
tive punishment he or she would have otherwise faced. Thirty-eight of the men
and six of the women who were whipped for petty larceny had been originally
charged with a form of grand larceny for which they might have been granted
clergy, branded in court, and released; had that been their punishment they
may have preferred it to being returned to gaol and subsequently whipped.
That some juries regarded a reduction to petty larceny and the whipping that
would follow as a more severe outcome than the branding of clergy is made
clear by the case of two women charged with theft to the value of ten shillings in
1694. One confessed and was granted clergy, burnt in the hand and discharged;
the other ‘would not’ confess, the Sessions Paper reported, and she was tried,
convicted of the theft to the value of ten pence rather than ten shillings, and sen-
tenced to be whipped.^113 Similar intentions seemed to be at work in the case of
John Snape, who was charged with stealing linen valued at twenty-four shillings
from a shop, made a poor defence, and ‘appearing to be an Old Offender, and
well known in Court, being branded in the Hand, was found Guilty’ but to the
304 The Old Bailey in the Late Seventeenth Century
(^112) CSPD 1673 – 5 , p. 388. William Briscoe, a yeoman convicted of manslaughter and sentenced to
transportation, said in his petition for a free pardon that ‘being unable to read an old print [ he had been]
forced to a willingness to be transported’ (CSPD 1665 – 6 , p. 307 ).
(^113) OBSP, April 1694 , p. 2 ( January and Stephens).