together; perhaps, in the end, it depended on the juries’ willingness to accept,
even eagerness to hear, the judges’ views about the bearing of evidence and the
credibility of witnesses.
Penal ideas and practices before
The defendants on trial for property offences at the Old Bailey faced two kinds
of charges: felonies to which benefit of clergy still applied and those from which
it had been removed by act of parliament: that is, felonies that were broadly
speaking capital offences and those that were not.^49 The difference was dra-
matic since a clergied offender would normally merely be burned on the brawn
of the thumb and allowed to go free at the conclusion of the session, whereas to
be convicted of a felony without clergy meant the possibility of capital punish-
ment. Which offences were within clergy in 1660 and which without, and who
among the accused were eligible to make a claim, were thus matters of crucial
importance to the juries and judges as they considered the fates of the prisoners
on trial before them. In general terms, the non-clergyable felonies were the
more serious offences: among property crimes they included burglary, robbery,
some forms of housebreaking, horse-theft, and pocket-picking—all of which had
been excluded from clergy by parliament in the sixteenth century as offences
that were too serious to be punished lightly.^50 Apart from those offences, all
other forms of theft remained within the purview of clergy in 1660 , including
the offence that continued to make up the majority of charges involving the
taking of property, simple grand larceny.
The nature of the offence was only one consideration, however, in determin-
ing who could claim clergy. The identity of the defendant was another. The
privilege of clergy was ecclesiastical in origin, and eligibility to claim its benefit
retained traces of those beginnings, even as it became otherwise secularized
through the middle ages. In the seventeenth century a male defendant could
claim clergy only if he could prove that he was literate by reading a verse from
the fifty-first psalm, popularly known as ‘the neck verse’. Until 1623 women
could make no claim of clergy at all. In that year parliament extended benefit of
clergy for the first time to women convicted of relatively petty thefts—larceny
below ten shillings in value. That rule held in 1660. It was not until thirty years
later, in 1691 , that women were allowed to claim clergy as freely as men (and
without having to prove their literacy).^51
For a large number of those who came to trial at the Old Bailey the ability to
enter a successful plea of benefit of clergy was a crucial issue, in the determin-
ation of which the jurors and the judges had massive discretionary powers. Juries
The Old Bailey in the Late Seventeenth Century 277(^49) For the changing rules surrounding clergy in this period, see Beattie, Crime and the Courts, 141 – 4.
(^50) Beattie, Crime and the Courts, 141 – 6 ; Langbein, ‘Shaping the Eighteenth-Century Criminal Trial’,
37 – 41.
(^5121) James I, c. 6 ( 1623 ); 3 & 4 Wm & Mary, c. 9 , s. 6 ( 1691 ).