could alter the consequences of a conviction, for example, by acquitting the de-
fendant of a non-clergyable offence and finding him or her guilty instead of a
lesser, clergyable, offence—what came to be called a ‘partial verdict’. With
respect to some offences, the juries thus had the power of life and death. And so,
too, did the judges. In the testing for literacy conducted by a clergyman in court,
the judges could overlook an obvious mumble and send the prisoner home; or
they could intervene if they chose and insist on a level of reading accuracy that
might result in denial of clergy that would threaten the prisoner with the gal-
lows. Conversely, judges could also reprieve men and women convicted of
capital offences and seek their pardon by the king.
The stark choice between clergyable discharge and capital punishment en-
couraged jurors and judges to apply the law with discretion. It was here that ex-
perience in the jury box became so crucial. Jurors might be guided by hints or
even directions by the judges, but in order to respond effectively they had to
know the alternatives available to them. The judge might hint at the ways they
could exercise discretion, but he could hardly tell them explicitly to find some-
one guilty of a lesser charge than that set out in the indictment. The experienced
men who served at the Old Bailey would know the consequences of a particular
verdict in the case of a particular offender charged with a particular offence.
Their verdicts largely determined the punishments that followed.
It is not surprising that the flexibility available to juries had its roots in the six-
teenth century, for it had been under the Tudors that the criminal law had been
made much tougher than it had been over the previous two centuries. Perhaps
the most striking aspect of the many-sided Tudor assault on crime and im-
morality was the effort to impose the severest punishments on those convicted
of serious property offences by the statutory removal of the privilege of clergy
from highway robbery, burglary, housebreaking, picking pockets, and horse-
theft. Ian Archer has revealed that at the beginning of Elizabeth’s reign the atti-
tudes towards crime that lay behind those enactments also produced a high rate
of convictions in the London courts for property offences of all kinds. Convic-
tion rates (and the levels of death sentences) were particularly high in cases of
robbery, burglary, and horse-theft. But the harshness of the courts was most
clearly revealed in their treatment of men accused of simple grand larceny, an
offence that remained within clergy for defendants who could prove their liter-
acy. Archer has shown that in the 1560 s half the defendants convicted of simple
grand larceny were sentenced to death, having been denied clergy by the
judges.^52 These figures are based on incomplete data; and they are sentences
passed in court and do not take into account pardons that may have been sub-
sequently granted by the monarch. None the less, when set alongside convic-
tions and sentences in non-clergyable cases, they suggest that there were very
278 The Old Bailey in the Late Seventeenth Century
(^52) Ian W. Archer, The Pursuit of Stability: Social Relations in Elizabethan London(Cambridge, 1991 ), 246 – 7 ,
table 6. 4.