a criminal law that provided the narrowest of penal options and that continued
to rely on discretionary manipulations of verdicts and sentences to construct a
more flexible outcome than would have seemed possible on paper. Discre-
tionary powers continued to make the brief court process a trial and a sentenc-
ing hearing in one. What, then, was the pattern of verdicts in City of London
felony cases prosecuted at the Old Bailey in the years after the Restoration and
what punishments were imposed on those convicted? And what do these ver-
dicts and punishments suggest about the attitudes towards the criminal law on
the part of the decision-makers at the heart of the administration of justice in
London?
Some defendants accused of property offences at the Old Bailey in the 1670 s
and 1680 s did not go to trial because the grand jury did not endorse the indict-
ment brought against them as a ‘true bill’, signifying in so doing their dissatis-
faction with the evidence offered by the prosecutor, or perhaps their sense that
the charge was frivolous or malicious. In the thirty years following the Restor-
ation these so-called ‘ignoramus’ verdicts by the grand jury—which led to the
accused being discharged ‘by proclamation’ at the conclusion of the session—
represented about 10 per cent of property offenders charged.^63 A few other men
and women, who may have been held in gaol for several weeks awaiting trial,
were similarly discharged when their prosecutors failed to appear to give
evidence against them.
A number of other defendants made trial unnecessary by pleading guilty to
the charge in their indictments. They did so, one must presume, in the expect-
ation of being treated more leniently at the sentencing stage than if they insisted
on a trial. This was occasionally made explicit in misdemeanour cases, in which
judges had considerable flexibility and could choose from several penal op-
tions.^64 In felony cases, the bench was much more constrained. They could ma-
nipulate the rules governing benefit of clergy by insisting or not on a strict literacy
test and by imposing or overlooking the rule that a previous conviction excluded
a defendant from clergy altogether. Judges might encourage juries to down-
charge; and they could reprieve defendants convicted of a capital offence and
recommend them to the king for a pardon. But judges could not choose among
a range of punishments in sentencing convicted felons and they could hardly
The Old Bailey in the Late Seventeenth Century 283(^63) For the grand jury’s scrutiny of bills, see Beattie, Crime and the Courts, 400 – 6. Samples taken at ten-
year intervals suggests that such ‘ignoramus’ verdicts accounted for something under 10 % of charges in
City of London property offences in the last decades of the seventeenth century. That level fluctuated
from session to session, but tended to rise in the eighteenth century, reaching an average closer to 20 %
by the second quarter. For the possible significance of that increase, see below, Ch. 8.
(^64) At the trial for trespass of the weavers who had rioted in London in 1675 , the judge promised the de-
fendants that if they would confess and ‘humble themselves to the court’ they would find favour. Three
did so and were fined twenty marks; eight did not and upon their conviction were told that ‘for their con-
tumacy, they were thought worthy of a greater Punishment’. They were fined five hundred marks, im-
prisoned until the fine was paid, pilloried on three separate occasions, and ordered to enter into sureties
for their good behaviour for their lives. See A True Narrative of all the Proceedings against the Weavers at... the
Old Bailey( 1675 ), 7 – 8.