than that charged in the indictment. Almost 20 per cent of the men and women
faced with offences that had been removed from clergy and for which they
might thus have been hanged were found guilty instead of what were in effect
the non-capital charges of grand or petty larceny; and about 10 per cent of those
charged with grand larceny were convicted of petty larceny instead.
A verdict of grand larceny opened the possibility of benefit of clergy, which
might or might not be granted by the court. But at least it was likely to save de-
fendants from a death penalty. In the case of a partial verdict of petty larceny—
that is, theft of goods of less than a shilling in value—the outcome was almost
certain to be a sentence of public whipping. Most partial verdicts thus diminished
the seriousness of the punishment that the bench could impose in sentencing.
The reduction of a charge from grand to petty larceny could be thought to
increase the pain that would be visited on those convicts for whom it meant a
public whipping rather than the branding of clergy, but it is not clear that
contemporaries would have taken that view. Partial verdicts were to be an
increasingly important means in this period by which the criminal law could be
manipulated in the interest ofbroadening the choice of sanctions available to
the courts—a subject we will return to in this and the following chapters. For the
moment it may be sufficient to note that such verdicts, along with exceptionally
high levels of acquittals, seem to indicate some dissatisfaction with the rigidities
of the penal law in the years after the Restoration.
The cases that came to the Old Bailey from the City in the sample we have
studied in the Restoration were divided roughly equally between clergyable and
non-clergyable offences. There were what would at first glance seem to be sur-
prising gender differences in each category until one remembers that, unlike
men, women were not allowed to claim clergy for larceny over ten shillings in
value, and, in addition, that the London magistrates were disinclined to pros-
ecute women for the clergyable offence of theft under ten shillings. The result of
these distortions was that women accounted for 62 per cent of the offenders
charged with capital offences in this period, but only 10 per cent of those
charged with non-capital thefts. Because of their restricted access to clergy,
more women than men faced the possibility of being hanged at Tyburn. At the
conclusion of the trials in our sample years, 116 women and 74 men had either
pleaded guilty or been convicted of a non-clergyable offence and were thus in
danger of being sentenced to death. As we will see, many were saved from the
gallows—and, especially in the case of women, even from the sentence itself—
by the judge’s reprieve and by the grant of a royal pardon.
Pardon from a capital conviction was an act of the monarch’s grace, deriving
from authority inherent in the royal prerogative, and the function, Shakespeare
said, which showed the monarch at his or her most God-like.^70 By the seventeenth
The Old Bailey in the Late Seventeenth Century 287(^70) ‘It is an attribute to God himself, | And earthly power doth then show likest God’s | When mercy
seasons justice.’ The Merchant of Venice, iv, i.