as the number of property offences increased sharply through Elizabeth’s reign
and well into the seventeenth century. It may also have been confirmed by the
heavy weight placed on capital punishment in that period—a period in which
the English criminal law was almost as bloody a code in practice as it was on
paper.^64 The Old Bailey was so sharply concentrated in the late sixteenth cen-
tury on dealing with felonies for which the outcome was often death, and the
belief in the efficacy of capital punishment as a deterrent was so evidently well
established, that convicting and punishing minor property offenders may have
seemed less important than it was to be a hundred years later as reliance on the
death penalty as the sole punishment available to the courts for the punishment
of felonies was beginning to wane.
In any event, it is clear that in the sixteenth century the London magistrates
took the view that petty larceny was not covered by the bail and commitment
statutes of the 1550 s since it was not a capital offence at common law and thus
not a felony. It was this that enabled them to use discretion in treating charges of
petty theft. The legislation passed in Mary’s reign required that everyone ac-
cused of committing a felony be sent to trial. Magistrates were prohibited from
dismissing such cases, even if they thought the evidence weak.^65 They were
under no such obligation when the crime alleged amounted to a misdemeanour,
but were free to settle the dispute or to deal with the allegation without neces-
sarily sending it to trial. This quite clearly was the view that magistrates in Lon-
don were taking with respect to petty theft at the end of the seventeenth century.
And in taking that view of minor theft, they did not confine themselves strictly
to the offence of petty larceny, the theft of goods of a shilling or less in value.
Faced with an allegation that something of a few shillings in value had been
stolen, they had practised a form of summary jurisdiction without clear legal
26 Introduction: The Crime Problem
as the way they were being used in marginal criminal cases in the late seventeenth and early eighteenth
centuries, see A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560 – 1640 ( 1985 ), 164 – 9 ; and
Joanna Innes, ‘Prisons for the Poor: English Bridewells, 1555 – 1800 ’, in Francis Snyder and Douglas Hay
(eds.), Labour, Law, and Crime: An Historical Perspective( 1987 ), 42 – 122. For the committal of minor property
offenders to the Bridewell in Elizabeth’s reign, see Archer, Pursuit of Stability, 239 , table 6. 1. A statute of
1609 ( 7 James I, c. 4 ) required magistrates to establish houses of correction in every county and specified
the kinds of people who might be sent there for correction and reform. The language of this and similar
statutes was vague enough to cover almost any minor offender. The statute did not confer explicit
powers on magistrates to deal summarily with allegations of theft, but writers of magistrates’ handbooks
cited its authority when justifying the incarceration and punishment of minor property offenders
without trial. There is no doubt, however, that the magistrates had long taken a very broad view of the
powers it and similar statutes governing their management of the poor conferred (see Innes, ‘Prisons for
the Poor’, 70 – 1 ; and Shoemaker, Prosecution and Punishment, 168 – 70 ). For the parallel history of penal
workhouses in England and Europe, see Innes, ‘Prisons for the Poor’, 49 – 92 passim; John H. Langbein,
Torture and the Law of Proof. Europe and England in the Ancien Regime(Chicago, 1976 ), 35 – 7 and accompanying
notes; and see Thorsten Sellin, Pioneering in Penology: The Amsterdam Houses of Correction in the Sixteenth and
Seventeenth Centuries(Philadelphia, 1944 ); Pieter Spierenburg, The Prison Experience: Disciplinary Institutions
and their Inmates in Early Modern Europe(New Brunswick, 1991 ), chs 2 – 3.
(^64) Archer, Pursuit of Stability, 237 , 245 – 8 ; and see below, ch. 6.
(^65) For the Marian legislation, see John H. Langbein, Prosecuting Crime in the Renaissance: England,
Germany, France(Cambridge, Mass., 1974 ), pt I.