all the right to have their guilt or innocence determined by their peers. The
French observer Henri Misson made it a point after describing the procedure at
the Old Bailey at the end of the seventeenth century, to emphasize that the trials
were conducted ‘in an open Court, and every thing spoken with a loud Voice.
This is one of the Privileges of the English Nation.’^5 It was central to notions of
liberty in England that lives and property were not at risk before secret tribunals
of inquisitorial magistrates.
There were as yet, however, few safeguards against wrongful conviction of the
kind that lie at the heart of the modern common law trial.^6 The trial was the con-
clusion of a process that had begun when the accused was taken before a magis-
trate and charged with an offence. The form and procedure of this preliminary
hearing, as we have seen, had been designed in the sixteenth century to ensure
that all charges of felony would be sent to an appropriate court for trial, and that
cases would not fail there for want of evidence given by victims and their
witnesses. Magistrates were instructed by the Marian Bail and Commitment
Statutes to record verbatim accounts of the prosecution evidence, to examine the
accused, and to bind over in recognizances those who could prove the charge.^7
For the most part, men and women accused of felonies in the City ofLondon
and Middlesex were committed to gaol to await the next gaol delivery session at
the Old Bailey. When they came to trial, accused felons undoubtedly had some
sense of the charge they faced. But they had no right to be given prior knowledge
of the wording of the indictment (which was in any case only drawn up as the
session began), or to know the evidence that would be presented against them.
In addition, even if they could afford it or could make the necessary arrange-
ments, the accused (unlike the prosecutor) had no access to machinery to com-
pel the attendance of witnesses who might testify on their behalf. They were to
come before the court unprepared and were expected to respond to the evi-
dence as they heard it given from the witness box. The brevity of the trial has to
be understood within that framework. It was not the callous indifference of
judges and juries that explains why the court could rattle through fifteen or
twenty felony trials a day, a pace of something under half an hour on average. It
was rather that the trial expressed most fully and clearly the intentions and pur-
poses, the ideology, that framed the entire criminal process. The tilting of ad-
vantage towards the prosecution can be seen at its most decisive in two aspects
of the trial in particular: the accused’s limited ability to offer a defence; and,
more broadly, the way in which the juries deliberated and the grounds on which
they reached their verdicts.
In the seventeenth century, unlike modern practice, defendants were
The Old Bailey in the Late Seventeenth Century 261(^5) Henri Misson, Memoirs and Observations in his Travels over England( 1719 , written in 1698 ), 328.
(^6) For some of those characteristics with respect to jury practice, see Langbein, ‘Criminal Trial Before
the Lawyers’, 300 – 6.
(^7) For the origins of this procedure in the mid-sixteenth century, see John H. Langbein, Prosecuting
Crime in the Renaissance: England, Germany, France(Cambridge, Mass., 1974 ), pt I.