average acquittal rate in all property offences over the years 1660 – 89 was also
significantly higher than the level that became common in the eighteenth cen-
tury: as we shall see, it averaged just over 30 per cent at the Old Bailey in the first
half of the eighteenth century, an outcome that Peter King has shown was sus-
tained in Essex into the early nineteenth.^69
Why juries were finding such unusually high levels of not guilty verdicts in the
Restoration years is not easy to discern. The Old Bailey juries based their deci-
sions in property cases on the evidence presented in court, the guidance pro-
vided by the judges, and on what they could make of the character of the
prosector and the accused. It is possible that they were influenced in this period
by considerations outside the courtroom since this was a period of intense con-
flict between the monarchy and the City over political and religious issues, con-
flict arising particularly around the government’s prosecution of religious
nonconformists and the prospect that Charles II’s Catholic brother would suc-
ceed him on the throne. This was also the period in which the Bushell case es-
tablished the independence of juries from judicial control. But apart from the
few cases with obviously political and religious implications, it is difficult to see
why the shopkeepers and tradesmen of London would have taken a more
sympathetic view of thieves and robbers out of hostility to the court.
On the other hand, the jurors may be presumed to have had the penal out-
come of their verdicts in mind as they came rapidly to judgment. And if that had
been the case, several aspects of the pattern of verdicts—including the acquittal
rate of close to 45 per cent—might be explained by their dissatisfaction with the
punishments available to the courts. Direct evidence of that is not likely ever to
be found, but the pattern of verdicts is at least suggestive. In the case of non-
clergyable offences in which execution was a likely outcome, an acquittal rate
approaching 50 per cent raises at least the possibility that some of the jurors at
the Restoration had been influenced by the debate over capital punishment in
the 1650 s and the argument that the most radical proponents of radical reform
of the criminal law had advanced that questioned the legitimacy of hanging for
property offences on biblical grounds. But the figure that most clearly suggests
dissatisfaction among London jurors with the established penal structure and
the narrow range of sanctions available to the bench is that for partial verdicts—
the verdicts, that is, by which juries convicted defendants, but of a lesser offence
286 The Old Bailey in the Late Seventeenth Century
Taking account of the trials being held at the quarter sessions in those counties has the effect of reducing
that level. In East Sussex, between the 1590 s and 1640 , Cynthia Herrup found an average acquittal rate
of about 31 % in larceny cases at the quarter sessions and assizes and 37 % in non-clergyable property of-
fences (The Common Peace, 144 : calculated from Table 6. 2 ). In Essex between 1620 and 1680 James Sharpe
found an average acquittal rate in theft cases (at the quarter sessions and assizes together) of 24 %
(Crime in Seventeenth-Century England: A County Study(Cambridge, 1983 ), 94 – 5.
(^69) See below, Tables 7. 2 and 9. 1. Peter King, Crime, Justice and Discretion: Law and Social Relations in Eng-
land, 1740 – 1820 (Oxford, 2000 ), Table 7. 4 a. Acquittal rates in larceny cases seem to have remained rela-
tively high at the assizes in the north-east through the eighteenth century (Morgan and Rushton, Rogues,
Thieves and the Rule of Law, 70 ).