The speed of deliberation was also facilitated by the absence of a notion that
the prisoner was to be regarded as innocent and the evidence then assessed with
that in mind. Judgment did not have to be withheld until all the evidence was in.
Indeed, it seems reasonable to think that the foreman and other influential
jurors were making up their minds as the trial went on and that the decision had
already essentially been made when the jury went into their room or into a
huddle in the courtroom.^40 The jurors would also have expected to get a lead from
the judge, who remained the dominant presence in the late seventeenth century
trial.^41 The judge’s conclusions about the evidence they had all just heard were
generally conveyed indirectly to the jury, in good part by his treatment of the
witnesses as he was leading them through their testimony. In straightforward
cases his opinion about the evidence or the defendant, conveyed in hints and
suggestions, or in the briefest of summations, were likely to have been decisive.^42
Where there were complications, he might offer clear direction. In a trial at the
December 1678 session involving theft from a shop by an elderly customer who
was well known to the shopkeeper and in which a good deal of conflicting evi-
dence was produced, the judge was said by the reporter to have ‘directed the
Jury to find’ the defendant guilty, which it did. On the other side, in a case in
which a man was charged with theft by someone he was suing for slander, the
judge declared it to be a malicious prosecution and ‘directed the Jury to find
the Prisoner not Guilty’, which it also did.^43 ‘Direction’ perhaps overstates the
judge’s authority in such cases, but not his influence.
There is little sign of conflict between juries and judges in most routine cases
involving the taking of property and no reason to doubt that the jury found the
judges’ hints and recommendations and directions helpful. Disagreements
might arise in cases involving political or religious issues, and in homicides or
other violent affairs in which motive and intent were at issue, or in which mem-
bers of the jury might have knowledge of the circumstances and background of
The Old Bailey in the Late Seventeenth Century 275jurymen complained about his ‘obstinacy’. The foreman, it was said, insisted that they stick to their guilty
verdict on the grounds that to change ‘it would have betrayed a Weakness in our Judgment’ (SP
36 / 42 / 193 – 4 ). Another jury that brought in an unpopular verdict at about the same time was said to
have been ‘overpersuaded’ by two of its members (SP 36 / 43 / 131 ). Matthew Hale acknowledged that at
least occasionally small groups of jurymen exercised considerable influence on verdicts. At the conclu-
sion of a passage in which he asserts the superiority of the common law jury trial over other systems of
criminal administration, and in which he emphasizes the importance of the rule requiring that jurors be
unanimous in their verdict, he concedes that ‘it must be agreed that an ignorant Parcel ofMen are some-
times governed by a few that are more knowing, or of greater Interest or Reputation than the rest’
(History of the Common Law, 166 ).
(^40) Peter Lawson cites work that suggests that modern jurors make up their minds about a verdict early
in the trial; see ‘Lawless Juries? The Composition and Behaviour ofHertfordshire Juries, 1573 – 1624 ’, in
Cockburn and Green, Twelve Good Men and True, 141.
(^41) For the judges’ powers and influence in felony trials in this period, see Langbein, ‘Criminal Trial
Before the Lawyers’, 284 – 300.
(^42) For the complex subject of judge–jury relationships in this period, see the sources listed in n. 1
above, and in particular Green, Verdict According to Conscience, chs 6 – 9.
(^43) An Exact Account of the Trials... Decemb. 1678 , pp. 23 – 4 (Leech, Hunt).