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New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex

Published online by Cambridge University Press:  11 February 2009

Cynthia Herrup
Cynthia Herrup
Affiliation:
The University of Michigan
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Extract

On May Day 1639, Christopher Deering discovered that a lamb was missing from his property in Heathfield, East Sussex. The most accessible criminal court to try such a theft was the quarter sessions, which met approximately two months later. By the court date, Robert Walcott, a local labourer, had confessed to the felony. In court, Walcott again acknowledged his complicity. Pleading benefit of clergy, he asked the justices to spare his life. Walcott read a biblical text well enough to pass the traditional – although long outdated – literacy test of clerical status. He was branded in the thumb to mark him as an excused felon, and dismissed from public custody.

Type
Articles
Information
The Historical Journal , Volume 27 , Issue 4 , December 1984 , pp. 811 - 830
Copyright
Copyright © Cambridge University Press 1984

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References

1 East Sussex Record Office (hereafter ESRO) quarter sessions file (hereafter Q/R/E) 46/45, 56.

2 On indictments and their limitations see Cockburn, J. S., ‘Early modern assize records as historical evidence’, Journal of the Society of Archivists, v, 4 (1975), 215–32CrossRefGoogle Scholar; Beattie, J. M., ‘Towards a study of crime in eighteenth-century England: a note on indictments’ in The triumph of culture, eds Fritz, Paul and Williams, David (Toronto, 1972), pp. 299–314Google Scholar; Herrup, Cynthia Brilliant ‘The common peace: legal structure and legal substance in East sussex, 1594–1640’, unpub. diss. Northwestern University (1982), pp. 10–17Google Scholar.

3 Dalton, Michael, The country justice (5th ednLondon, 1635), pp. 295–302Google Scholar. On the use of depositions see Baker, J. H., ‘Criminal courts and procedure at common law, 1550–1800’, in Crime in England, 1550–1800, ed. Cockburn, J. S. (London, 1977), pp. 15–48Google Scholar; Langbein, John, Prosecuting crime in the renaissance: England, Germany, France (Cambridge, Mass. 1974)CrossRefGoogle Scholar.

4 1 & 2 Philip & Mary, c. 13 and 2 & 3 Philip & Mary, c. 10.

5 The earliest surviving examinations sent to the assizes in England can be found in Public Record Office ASSI 45/1/1. John Styles has studied the investigative techniques used in a small sample of serious crimes brought before the assizes in Yorkshire in the eighteenth century. The similarity between his findings and those cited below is striking. Styles, John, ‘An eighteenth-century magistrate as detective: Samuel Lister of Little Horton’, The Bradford Antiquary, new series, part 47 (1982), pp. 98–117Google Scholar.

6 Macfarlane, Alan in collaboration with Harrison, Sarah, The justice and the mare's ale: law and disorder in seventeenth-century England (Cambridge, 1981) is a recent exampleGoogle Scholar.

7 Modern studies of detection suggest that unsuccessful prosecutions often have quite different histories from successful prosecutions. To argue confidently therefore that even a systematic analysis of the extant materials reveals typical behaviour would be misleading, especially since several informal means existed to diffuse criminal accusations in pre-industrial England. Since the techniques of investigation described herein relied so heavily on the involvement of the victim and on commonsensical linkages between accusation and accused, however, cases resolved locally in seventeenth-century East Sussex, by whatever means, probably shared basic components. Cases that passed outside the local area may have demanded a different set of investigative strategies, but it is unclear at present if long-range investigations genuinely were undertaken. For the modern comparison, Steer, David, Uncovering crime: the police role (London, 1980)Google Scholar. Sharpe, J. A., ‘Enforcing the law in a seventeenth-century English village’ in Crime and the law: a social history of crime in western Europe since 1500 eds. Gatrell, V. A. C., Lenman, Bruce and Parker, Geoffrey (London, 1980), pp. 97–119Google Scholar, is a good survey of the seventeenth-century alternatives to prosecution.

8 Fifty-two quarter sessions files from this period have survived. A total of 306 cases handled by the courts relied upon examinations still extant (about half of the thefts prosecuted). The surviving court files used, by year, are 1594 (4 files), 1595 (2), 1606 (1), 1608 (1), 1609 (1), 1614 (2), 1615 (4), 1617 (3), 1618 (1), 1625 (2), 1626 (4), 1627 (4), 1628 (1), 1632 (3), 1633 (1), 1636 (3), 1637 (4), 1638 (4), 1639 (4), 1640 (3).

9 All but 48 of the examined cases were alleged thefts. Larcenies accounted for slightly less than 30% of the indicted business brought to the quarter sessions, but the other major categories of complaints (assaults, trespasses, riots and a variety of offences against the community) were usually settled without a trial. See Herrup, pp. 42–88.

10 The process by which grand juries seem to have reached their decisions is discussed at length in Herrup, pp. 139–91.

11 The discussion of the constabulary relies on Lambarde, William, The duties of constables, borsholders, tithingmen and other lowe ministers of the peace (London, 1591)Google Scholar; SirSmith, Thomas, De republica Anglorum (London, 1609)Google Scholar, and for examples from East Sussex, ESRO Ada MS 56 and 143; B.L. Add. MSS 33, 174 and 5705.

12 In cases of particular interest to them, magistrates did summon witnesses or request additional information, but even in these cases their influence as investigators was limited. Styles found this also to be true among crimes intended for the assizes in the eighteenth century. Styles, pp. 101–4.

13 On the background of some of the men who served as constables in East Sussex see Herrup, appendix VI, ii and iii.

14 Lambarde, pp. 19–23, 37; Sir Frederick Pollock and Frederick William Maitland, The history of English law before the time of Edward I (repr. 2nd edn Cambridge, 1968), II, 587; an example of a hue and cry warrant can be found in B. L. Lansdowne MS 569/52 v.

15 Smith, pp. 83–4; ESRO Q/R/E 13/118v; 19/20; 27/23–4; 39/133v; 40/9; 42/42. It is unclear if constables were fined in lieu of, or in addition to, local communities.

16 ESRO 12/16, 106, 123; 16/8,62–3; 25/35, 67; 39/9,95; see also Public Record Office Star Chamber (STAC) 8/28/17; 8/90/12; State Papers (SP) 12/252/93. The use of hues and cries (but not their efficacy) can also be inferred from miscellaneous contemporary references to their mode of execution; see Calendar of state papers domestic addenda, 1580–1625, p. 532; Calendar of state papers domestic, 1601–1603 and addenda, 1547–1565, p. 309; Beverly borough records, 1575–1821, ed. Dennett, J. (Yorkshire, 1933), p. 186Google Scholar; Roberts, S. K., ‘Participation and performance in Devon local administration, 1647–1660’, unpub. diss. University of Exeter (1980), p. 71Google Scholar.

17 Harrison, William, The description of England, ed. Edelen, George (Ithaca, 1968), p. 194Google Scholar; ‘The black book's messenger’ in Judges, A. V. (ed.), The Elizabethan underworld, p. 255Google Scholar; The letters and the life of Francis Bacon, comp. Spedding, James (London, 1872), VI, 306Google Scholar; Stephen, J. F., A history of the criminal law of England (London, 1883), I, 189–92Google Scholar.

18 The constables accounts of the manor of Manchester, 1612–1647, ed. Earwaker, J. P., (Manchester, 1891–1892)Google Scholar; The Wigginton constable's book, 1691–1836, ed. Price, F. D. (Chichester, 1971)Google Scholar.

19 On Heathfield see Herrup, appendix VI. Of 182 witnesses who can be identified, only 25 were legal officers.

20 ESRO Q/R/E 10/26, 59, 77a; 20/48, 51; 25/4, 42, 45–6, 68–9, 71–2; 35/38, 81, 87; 37/32, 70; 43/29, 58–9 and below.

21 ESRO Q/R/E 25/35, 67; 26/26, 53; 15/43, 66, 86; although indictment crime dates are not absolutely reliable, deposition evidence bears this out.

22 ESRO Q/R/E 27/61; 26/25, 52; see also ESRO Q/R/E 44/31, 60. For a parallel, and perhaps a precedent, see Pollock & Maitland, I, 577 on summary justice and infangthief.

23 ESRO Q/R/E 37/32,70,102v; see also Q/R/E 10/13,74; 14/17,39,41; 16/13,72–3; 21/48,110; 26/25,52; 27/61; 34/57,96; 37/102V; 44/31,60; West Sussex Record Office quarter sessions files (hereafter WRSO Q/R/WE) 16/12,39.

24 Lambarde, pp. 14–18; officers did have special obligations, however, if they witnessed illegal assemblies or riots.

25 WSRO Q/R/WE 16/19,44; 16/12,39; see also ESRO Q/R/E 2/10, 3/37; 13/35,93; 16/13, 72–3; 20/25,34,56,61; 26/25,52; 37/15,66; 49/18,77; Dalton, p. 302.

26 Horses, cattle, money, jewels or plate were the subject of only 35 of the cases studied here (slightly less than 10% of the indicted cases). The most common targets for theft were foodstuffs, household goods, and small livestock such as sheep or hens. See Herrup, p. 58.

27 ESRO Q/R/E 23/62,93–4,98; 25/30,74; 29/31,69; 34/55,89,93; 45/44,103; 45/12,71; WSRO Q/R/WE 16/8,41.

28 Stephen, 1, 193; ESRO Q/R/E 10/11,70; 11/13,49,52; 15/62, 80,83–4; 15/73,81; 20/15,59,65,74; 21/48,110; 22/34,104,113–15; 23/33,91; 27/5,60; 29/22,65–6; 35/31; 36/40; 36/58,102–3; 37/15,66; 39/91; 39/92–3; 40/18; 45/37,73; 49/20,78.

29 ESRO Q/R/E 10/11; 20/28,53,75–6,109; 22/34,104,113–15; 29/33,68; none of these persons was convicted by a jury; one person, however, confessed his guilt.

30 ESRO Q/R/E 11/13,49,52.

31 ESRO Q/R/E 29/22,65–6; since this was probably also the John Burt of Horsted Keynes who was indicted, convicted and granted benefit of clergy for a theft earlier in 1627, his disappearance is not too surprising, ESRO Q/R/E 28/43.

32 ESRO Q/R/E 45/37,73; see also 35/91; 36/40.

33 See Stephen, II, 229–36,238; Cockburn, J. S., ‘Trial by the book? Fact and theory in the criminal process, 1558–1625’ in Legal records and the historians, ed. Baker, J. H. (London, 1978), pp. 66–7Google Scholar; Herrup, p. 355 n. 51 and ESRO Q/R/E 13/30,98; 13/29,41,43; 15/21,26,82; 16/17,28,38,60; 16/19,70; 17/32; 25/1,30,74–5; 26/24,41,50–1; 35/42,93; 36/46–8,99; 40/28,32–4; 41/43–5,54,64; 44/21,58; 45/34,11IV; 48/27,61; WSRO Q/R/WE 16/6,22,26.

34 On sale sureties, ESRO Q/R/E 12/52,99,105; 16/8,62v–63; 17/6,8–9,34–8. For a much earlier set of regulations to the same purpose see Whitelock, Dorothy, The beginnings of English society (Harmondsworth: Penguin Books, 1952), p. 146Google Scholar; for receivers who testified against larceny principals, ESRO Q/R/E 21/37,102–5,113,146V; 22/50,68,110; 22/53,78,123; 23/62,93–4,98; 27/5,26,59–60; 28/14,69,74; 36/45,98,101; 36/97; 47/10–15,51.

35 Dalton, pp. 296–7; , T.E., The law's resolution of women's rights (London, 1632), pp. 206–7Google Scholar; on spouses, ESRO Q/R/E 35/31, 36/102–3; 12/6,46,104v; 21/13–14; on children, ESRO Q/R/E 5/64–7; 10/26,59,77a; 20/4,54,67–9.

36 On spouses, ESRO Q/R/E 13/29,41; 16/13,72v–73; 21/13–14; 25/4,42,45–6,68–9, 71–2; 29/31,69; 36/50,101–5; 49/42,63,86; on children, ESRO Q/R/E 12/45,102v; 13/24,36,94–6,114; 34/37,94–5; 36/93–5; 41/46,83; 42/134v; 43/42,88v; WSRO Q/R/WE 16/56–57v.

37 PRO STAC 8/90/12. For cases in which the victim was the defendant's master ASSI 35/57/7/22; 35/57/7/35–7; ESRO Q/R/E 15/21,82; 16/19,51,70; 17/6,8–9,15,42,51,53–4,56; 20/3,30,55,71; 21/57,102–5,113,146V; 21/56,72–3,114–15; 22/32,124–5; 34/40,88; 38/44,113; 48/27,61. See also ESRO Q/R/E 13/33,91; 16/12,34,65; 22/30,135; 24/23,71–3; 25/35,67; 25/30,74; 28/14,69,74; 29/28,61–2; 29/30,63–4; 38/57,105–6, where victims are referred to as the temporary employers of theft defendants.

38 ESRO Q/R/E 12/17; 15/5; 22/53,121,123; 35/31,36/103; see also ESRO Q/R/E 11/47; 14/20,42; 22/53,121,161v; 34/37,95; 35/31; 36/2; Stephen, III, 139–40.

39 ESRO Q/R/E 29/33,68,70; 36/45,98,101.

40 ESRO Q/R/E 10/13,74; see also ESRO Q/R/E 10/68–9; 13/24,94–6; 20/28,53,75–6, 109; 22/53,121,161v; 22/34,104,113–15; 23/33/97; 25/2,64–5,73; 29/22,65–6; 29/33, 68,70; 37/15,66; 39/8,49,98; 40/32–3,64; 45/37,73; 49/20,78; WSRO Q/R/WE 16/13,39; PRO STAC 8/242/5.

41 ESRO Q/R/E 10/16,75; 10/11,70; 13/33,91; 16/12,65; 22/32,124–5; 24/23,71–3; 25/1,30,74–5; 25/36,79; 29/28,61–2; 34/57,96; 34/40,88; 38/57,105–6; WSRO Q/R/WE 16/19,44.

42 ESRO Q/R/E 36/50,104–5; see also ESRO Q/R/E 35/31; 36/102V; 37/31,62,65; 41/46,83; WSRO Q/R/WE 16/18,43 and for instances of more direct resistance ESRO Q/R/E 34/37,94–5; 34/55,89–93; 35/21; 51/24; 52/149V.

43 ESRO Q/R/E 46/45,56; see also ESRO Q/R/E 12/45,102v; 21/54,74,111–12; 22/54,129; 34/55,89,93; WSRO Q/R/WE 16/19,44.

44 ESRO Q/R/E 22/58,76,96–7,111; 39/8,49,98; 46/45,56. Search warrants are rarely mentioned specifically, but see ESRO Q/R/E 34/38,91; 44/28–9,59; Bodleian Rawlinson MS B 431/8v.

45 ESRO Q/R/E 27/101–3; see also ESRO Q/R/E 21/54,74,111–12; 29/22,65–6.

46 ESRO Q/R/E 15/20,85; see also ESRO Q/R/E 12/6,46,104–4v; 22/33,120; 34/38,91; on linens and iron ESRO Q/R/E 29/31,69; 35/42,93.

47 ESRO Q/R/E 18/34,56–7,62–3; 28/14,69,74; 29/28,61–2; 36/45,98; on clothing ESRO Q/R/E 25/35,67; 27/61; 38/25,99.

48 ESRO Q/R/E 36/50,104–5; 37/17,69; 44/28–9,59; 46/45,56; see also ESRO Q/R/E 14/20,42; 15/20,85; 22/58,76,96–7,111; 24/9,76; 25/30–1,74–5; 25/36,79; 28/16,72; 29/31,69; 34/61,101; 34/55,89,93; 35/42,93; 37/31,62,65; 39/10,99; 45/72, 46/30; WSRO Q/R/WE 16/8,41.

49 For a discussion of the use of ‘cunning men’ and astrologers as aids to criminal investigations see Thomas, Keith, Religion and the decline of magic (New York: Charles Scribner's Sons, 1971), pp. 212–22, 307–8, 345–6, 442–3Google Scholar. No Sussex deposition, however, admits the use of such sources of information.

50 ESRO Q/R/E 26/26,53; 20/4,54,69–70; see also ESRO Q/R/ E 13/30,98; 21/57,102–5,111,146; 28/14,69,74; 34/61,101; 36/45,98,101; 36/97; 39/8,49,98.

51 ESRO Q/R/E 29/30,63–4.

52 Whigs and hunters: the origins of the Black Act (New York, 1975), pp. 258–69Google Scholar.

53 The contrast between private legal systems and public ones is discussed most recently by Bruce Lenman and Geoffrey Parker, ‘The state, the community and the criminal law in early modern Europe’ in Gatrell, , Lenman, & Parker, (eds), Crime and the law, pp. 11–48Google Scholar. The independent power of legal officers even in modern investigations seems to be strictly limited. Steer, passim.

54 Communal participation in fact maintained its importance well beyond the period in question here. See Styles, pp. 102–3; Steer, pp. 66–78.

55 Introduction to the reissue of Pollock & Maitland, I, xxvi xxvii.