Skip to content

Breaking the Seal: Legal documents as historical record

Updated Monday 13th March 2000

Bettany Hughes and the Breaking The Seal team uncovered just how much information is hidden away in legal records.

Statue of justice at the Old Bailey Copyrighted image Icon Copyright: BBC

Bettany Hughes
Today, we assume that if you commit a significant crime, you'll end up in prison. But the prison system is a surprisingly recent invention, only established in the mid 1800s. For centuries in this country there were a whole range of crimes, from poaching to cold-blooded murder, that carried just one punishment - death. So what was the point of this brutal approach? Since the 1200s, the state has wanted to keep tabs on those involved in criminal trials and some of the records survive. We know who Judge Jeffries condemned at the Bloody Assizes and how Dick Turpin was charged. The original documents can short-circuit us into the lives of those who'd fallen foul of the criminal justice system.

In the 1200s, the state started keeping records of criminal trials. Amazingly, many of these records survive. I'm in London, on my way to hear stories of mediaeval intrigue from records of the earliest jury trials. What I particularly want to find out is how independent juries were. My first stop is the Public Record Office. I'd arranged to meet Michael Clanchy, a man who knows a thing or two about crime and punishment in mediaeval England.

Michael Clanchy
And this is the record from Hampshire in 1249. The standard procedure was trial by jury. Trial by 12 people as we now have it, but the great difference is that a jury in the 13th century, or throughout the Middle Ages, consisted of local people with local knowledge of those who were accused.

Bettany
So the jury knew the criminal and the crime? That sounds like a system ripe for corruption and it seems it was, as the case of a spectacular robbery in Hampshire shows.

We're on our way to the Pass of Alton, a once notorious stretch on the old road from Southampton to London. Here, in 1248, two foreign merchants were attacked and robbed of 200 marks, a huge sum of money. So why would the merchants have chosen this route?

Milestone on the road to London at Alton [Image: Andrew Michaels under CC-BY licence] Creative commons image Icon AndrewMichaels via Flickr under Creative-Commons license
Milestone on the road to London at Alton [Image: Andrew Michaels under CC-BY licence]

Michael
Well, they really had no choice. This is called the Passage of Alton because it was the only way through this piece of forest and any piece of forest was, of course, very dangerous to travellers.

Bettany
The gang of robbers was living in these woods, waiting for the great baggage train from Southampton to arrive. When it did, they ambushed the merchants' party and seized the 200 marks. The merchants escaped with their lives and fled to complain to the king. The records of the case paint a vivid picture of how the robbers survived in the woods.

Michael
There's one man, Richard Pitcomb, and his wife who are accused of supplying them with cooked food in the form of a whole pig and two sheep, and there's another person who is accused of supplying them with cider. And so one imagines them here, having a sort of big camp fire, lots of food and drink.

Bettany
They sound exactly like Robin Hood.

Michael
Yes. A person called Robin Hood is mentioned in a Yorkshire record of this sort from much the same time, and what is so interesting about this record is we do have a description of actual real people in these woods, who were described as outlaws and committed this great robbery.

Bettany
Following the robbery, many local people were arrested. Some charged with the robbery itself. Others as accessories. They were tried in Winchester. The conspiracy was so widespread, that the first local jury failed to return any verdicts. They were too close to the events. Angered by this corruption, King Henry III ordered that they be thrown in prison and a new jury was summoned.

Do you think he was making a point by hosting the proceedings here?

Michael
Yes. What he is doing is summoning the people of Hampshire to his own house, as it were, and many of them would never have seen him before and would never have seen a building like this with these great marble shafts. The King would have come from that door, there, probably crowned and robed, then makes this great speech. Appears to be very angry and says, you must tell the truth about these robberies.

Bettany
So how did the jurors decide?

Michael
Well, in this case, the second time round they do at last make some accusations and declare some people to be guilty.

Bettany
The documents tell us 60 people were charged with conspiracy in the robbery. Many of those the jury found guilty, like Cecily Colemore, were fined but there were also less familiar harsher punishments, like outlawry.

Michael
Accused people who failed to appear in court are automatically outlawed, that is the penalty, and so whenever you see written ex U T L, ut legati, that stands for outlawed. Non venerod, these accused people have not come, and so, uratorese decont, the jurors say that they are guilty, idio, and so they in their turn are ut legati, they become outlawed also.

Bettany
And if you're an outlaw, what does that mean? What do you risk happening to you?

Michael
Just very literally, it goes right back to Anglo-Saxon times, it means you are beyond the protection of the law and if you are beyond the protection of the law, if you return to any village, if anyone recognises you, they are entitled to kill you or certainly entitled to arrest you and you will be summarily killed. One of the law books says just like a wild animal. You're no longer treated as a person.

Bettany
Was anybody executed as a result of this trial?

Michael
Yes. Here is a case of someone who is hanged. You can see this, just from this one single letter there. S, full-stop with a little squiggle above it and that stands in Latin for suspendata. He is to be hanged, it is the order of the court.

Bettany
The jury had spoken but it was the power of the King that was on display.

Vic Gatrell
Control had to be maintained through symbolic means, through public statements that the sovereign, the king, was mighty, that the anger of the king was huge and monstrous and that the anger of the king could be exercised in whatever way the king chose upon those who offended against his dignity and against his integrity. So the argument is that punishment had to be excessive in order to demonstrate and to dramatise the power of the king.

 

Bettany
Legal records are very detailed so, if there was a criminal in the family, you could probably trace his life. Australian Rob Davey is working in a London bar after finishing college. He's discovered that some of his ancestors were transported to Australia in the 1700s and he wants to find out more.

Do you know anything about your ancestors?

Rob Davey
A little bit. I only know the family tree that my mother's done up. She discovered that we had fellow called Robert Forrester in the family who was actually a first fleeter. He was a convict that was transported from England to Australia on the first fleet in 1788. He was tried for larceny at the Old Bailey in 1783 for stealing 120 shillings.

Bettany
Which is quite a substantial amount of money, isn't it?

Rob
Yeah, definitely in those days for sure.

Bettany
So Rob wants to find out what his other relations, John Cobcroft and Richard Ridge, got up to. After all, they are his direct ancestors.

That's great actually, so you can go all the way down to you, to Robert John Davey.

Rob
Yep. Right down there at the bottom of the page.

 

The National Archives [Image: Electropod under CC-BY-NC-ND licence] Creative commons image Icon Electropod via Flickr under Creative-Commons license
In 2003, the Public Record Office was renamed The National Archives [Image Electropod under CC-BY-NC-ND licence]

Bettany
Like many researchers, Rob begins at the Public Record Office. In all, 163,000 people were transported to Australia, so Rob's got his work cut out. We'll catch up with him later.

The records show how juries again and again conspired to help petty criminals whom they often knew to avoid the most severe punishments. I'm off to Essex to find out how people eluded the noose in the 1600s. I know that officially you could be hanged for stealing goods worth more than a shilling, but apparently there were ways around the law. Jim Sharp knows all about these legal loop holes. He's going to introduce me to an old friend of his, a small time thief named Matthew Powell, who was operating in Essex in the 1630s.

Jim Sharpe
What we have here through this documentation, is the possibility of actually tracking his career as a chicken thief. He was a remarkable chicken thief in the period. This is the first set of evidence where he enters the criminal history record and, as you can see, there's a heading which gives the name of the person giving evidence, in this case somebody called John Garrard, the name of the examining justices, and the date when it was taken, 17th June 1636.

So here is John Garrard saying that Matthew Powell tried to sell him chickens, he was suspicious, he alerted the local constables. We then go from the depositions which are in English, very straightforward, normally very simple to read, to the court of session rolls. Now these, as we shall see, are very difficult to use.

Bettany
They're fantastic things.

JimThey're wonderful, they look good, they look very romantic, until you actually have to get into them. Now here we had three indictments for Matthew Powell in Latin, written on parchment, above his name, that's Matthew Powell written there. You have the Latin formula which says that he was whipped. This says pose cul carnal flagilenture. It was normally done in public either at a whipping post, in the middle of Chelmsford in this case, or sometimes the offender, male or female, would be stripped to the waist, tied to a cart and paraded through the streets and whipped as they were paraded.

Bettany
Did he learn his lesson?

Jim
He certainly didn't. Two years later, in the summer of 1638, we find Powell again appearing before Quarter Session and, if you’ll just bear with me . . .

Bettany
Are they very delicate?

Jim
They're very delicate. I'm always terrified of the things breaking up as I'm using them. I mean this is 350 years old. And Powell, on this occasion, is charged with stealing a number of chickens to the value of over four shillings. What happens here is one of the common dodges of the period. Obviously, by the 1630s, for some time before that, people would not like to execute people for a few shillings theft so, in that Latin formula at the top, the court decides to re-value the chickens at six pence, so again it's created as petty theft and again he's whipped.

Bettany
And that was a way around the law that was accepted by the courts.

Jim
Very much so, yes. It's a curious sort of set up in this period that there are all sorts of anomalies that are built into the system which judges, jurors, even the people offended against, seem perfectly willing to operate. He's whipped twice, as we've seen, and he turns up again in the Quarter Session records a year later in 1639.

Bettany
So how does he wriggle out of this one?

Jim
On this occasion he is found guilty but he's allowed to escape through another one of these legal loop holes of the period called benefit of clergy.

Bettany
Now this is really bizarre. In the middle ages, simply being a priest meant you couldn't be hanged for a first offence. Instead, you'd be branded on the hand with a T for theft or an M for manslaughter. Then, if you re-offended and you were found with a brand, you would be hanged. By Matthew's time, the protection of benefit of clergy had been extended to anyone who could read or pretend to read.

Jim
We know, for example, that it was nearly always the first verse of the 51st Psalm that you had to read when claiming benefit of clergy, so you could learn it off by heart. The jailer could teach you or somebody else could teach you in jail. This begins coggan, which is an abbreviated form of cog notive which means he confessed, petit librum, he asked for the book, and then it continues to say that he read and that he was branded on the left hand.

Bettany
So do we know what happens to Matthew in the end?

Jim
He appears for the last time in history awaiting trial in Colchester Castle and in the summer of 1642, he escapes from Colchester Jail and he also escapes from the historical record.

 

Bettany
Meanwhile, at the Public Record Office, Rob Davey is searching for information on his criminal ancestors. Reference books help him find his way through a mass of transportation records and now he's having some success. Among the reels and reels of microfilm, Rob finds references to all three ancestors, saying when they were sentenced and on which ships they were sent to Australia. Robert Forrester, John Cobcroft and Richard Ridge. But he can't find the information he most wants - details of the crimes of John Cobcroft and Richard Ridge.

Rob
Now that I've gone into it a little bit and I've started to find some information, I really want to find out what their crime was. Basically, I need to know.

Bettany
The hunt is on, and Rob sets off to the London Metropolitan Archives, home of London's historical records.

I'm in London too, looking for one of the city's oldest prisons. People were punished here for reasons it's hard for us to understand today.

For 300 years, there were prisons on this site in Clerkenwell, Central London. Their main business came to be the incarceration of debtors, one of the few groups of people who were locked up for long periods of time. The debtors shared the prison with people who were just passing through, the suspects awaiting trial.

One of those prisoners was the notorious London thief, Jack Shepherd. In 1724, Shepherd was held here on suspicion of stealing a pocket watch but he managed to stage a Houdini-esque escape. He enjoyed a brief period of freedom before he was re-captured, convicted and then hanged at Tyburn.

Site of the Tyburn Tree in Central London [Image Loz Flowers under CC-BY-SA licence] Creative commons image Icon LozFlowers via Flickr under Creative-Commons license
Site of the Tyburn Tree in Central London [Image Loz Flowers under CC-BY-SA licence]

Throughout the 1700s, the number of crimes for which you could be hanged rose steeply. Even stealing fruit from a tree became a capital offence. The men who were passing these laws in parliament were men of property. The men and women they were aimed at had virtually nothing.

To find out more about the London hanged, I've met up with historian, Ruth Paley. Ruth tells me that the best place to find individual stories is at the Guildhall Library in the City of London.

Ruth PaleyThis is the Old Bailey sessions proceedings which is a sort of journalistic pamphlet account of the crimes and the evidence that was given in court.

Bettany
And so it's something that general members of the public would have bought?

Ruth
Yes, this is essentially your 18th century equivalent of ‘True Crime Monthly’. It comes out in small pamphlets, priced four pence, and it's sold on the streets and in various stationers’ shops around London. You have use it in a back-to-front sort of way if you're looking for people who were hanged because, at the end of each session, you do get an overview of the sentences - who was sentenced to death, who was sentenced to transportation, who was sentenced to be whipped. You don't get a sense of whether their sentences were actually carried out and that's particularly important for capital cases because not all those who were sentenced to death would actually hang.

And at the end of this overview we get this little sentence here, John Guest, Tom Smith, and William Beckwith, capitally convicted last sessions, and Robert Tilling, this sessions, were executed on Monday 28th April last. That's April 1760. Here we have an account of Robert Tilling, who stole because he needed some money to impress his girlfriend. He's about 23 years old. He wanted to marry a pious and godly young woman, as he describes her. She wasn't having anything to do with someone who was a mere servant and he had to look as though he was earning rather more money.

Bettany
What are the crimes of the other people?

Ruth
Well, if we go on backwards through this, we come to Beckwith's case. Beckwith was tried for a number of offences. The one he was convicted on was for stealing from an old couple in Hackney. He broke into the house, held the old lady up. In her testimony she said they "rifled and jostled me about and bid me not talk and took three half pence and four farthings out of my pocket, they took them and hit me a blow on the side of my head. I thought they'd beat my brains out. I said don't use me and I'm old enough to be your grandmother".

Bettany
And then what's this bit in brackets?

Ruth
The bit in brackets is an interjection from the short-hand writers. The prosecutor and his wife were a remarkably ancient couple.

Bettany
So the prosecutor is the victim in this case?

Ruth
Yes, that's how 18th century prosecutions worked. You didn't have a Crown Prosecution Service or any kind of professional prosecution service. If you were the victim of a crime and you were fortunate enough to find who had done it, you had to prosecute them yourself.

Bettany
And what about the crimes of the other men who were condemned?

RuthGuest and Smith, they're accused of breaking and entering a dwelling house belonging to William Howells, and they stole from there 30 pairs of silver shoe buckles, six pairs of knee buckles and four silver stock buckles.

Bettany
Now why has William Howells got 30 pairs of silver shoe buckles in his house?

Ruth
Well, he's living over his shop. He goes on to describe what happened: "About five in the morning on second of this instance, I heard a noise in my house and when I came down I found the window shutter of my shop was taken down and I saw a hand picking out my buckles at the end of the window".

Bettany
And so what does he do when he sees? Obviously he's in the middle of being robbed.

Ruth
Well, he said "I had no opportunity of laying hold of the hand, the window being glazed on the inside as well without. I called up to my wife and desired her to open the dining room window and call the watch, which she did".

Bettany
Who were the watch?

Ruth
The watch is specifically the force that patrols the streets at night to keep an eye out for crime and disorder.

Bettany
And I presume from this "Guilty, Death" that's the sentence that they got.

Ruth
Yes, that's the sentence. These four we know are going to be executed so they go off back to Newgate to await their journey to Tyburn.

Bettany
These days, the crowds come to Oxford Street to go shopping. In the 1700s, they came for a very different reason - to see the prisoners as they were paraded to the gallows at Tyburn.

 

Bettany
So how would the condemned men actually have got to Tyburn?

Ruth
Well, they would have been in Newgate which is about three miles that way, along Oxford Street. And they would be brought out in a horse-drawn procession. Quite an elaborate procession with the sheriff, the sheriff's officers, and the condemned men actually in a cart. There would be so many people out in the streets wanting to see the condemned men, offering them drinks, possibly offering them flowers and gifts, and the carts.

Bettany
They'd have driven right up to Tyburn?

Ruth
Right up towards Tyburn which is along here.

Bettany
So presumably in the 1760s this would have been right on the fringes of society.

Ruth
This is all open fields in 1760. In fact it's so open there were cows and everything kept here and a lady who had a cow field here, a woman called Procter, used to build seats and rent them out to people so they could watch the executions in comfort.

Bettany
And this is the site of the gallows, is it?

Ruth
This plaque commemorates the site of the actual gallows, Tyburn tree, the hanging tree. It's a nasty, brutal way to die. If you want to terrify your populace, this is a fairly effective way of doing it.

Bettany
A week after the run-of-the-mill hanging of Guest and the others, Tyburn played host to the execution of the century when the aristocrat, Earl Ferrers, was hanged for murdering his bailiff. Ferrers' trial at the House of Lords in 1760 caused a sensation, and the interesting fact about the case is that the jury was made up entirely of Ferrers' fellow peers. To find out more, we went to the House of Lords Record Office to look at a scrapbook of material relating to the event.

Ruth
First thing you get is all the sort of sub-committee work. How are we going to do this? I mean it was going to be a very theatrical event. There are going to be, not simply seating, but boxes.

Bettany
Do you normally have an audience at a trial?

Ruth
Trials are very popular, yes. People do turn out to see a good trial, but they don't turn out in the numbers that require people to issue tickets. We have a ticket here. Absolutely beautiful.

Bettany
It's very elaborate, isn't it?

Ruth
Yes, in keeping with the status of the Earl, it's beautifully engraved. It’s got a seal to make sure it's original. No forgeries. And it's numbered. This is ticket number 1487. They decided to allocate tickets on a sort of cup final basis. If you have your season ticket to the Lords, you get a better chance of having tickets, and we have further on this scrap book, we have some lovely letters for people who want to make sure they get their ticket. The Earl of Sutherland writing in: "I hope your Grace will pardon this trouble, but if you could be good as to give me", and then he sort of messes up his pen, and we can't actually quite read that.

Bettany
Can't spell ticket.

Ruth
It does look very much as though he can't spell ticket. "If you give me a ticket or two, I shall be singly obliged your Grace."

Bettany
'Because they found him guilty, didn't they?

Ruth
Yes. The verdict was returned and each Lord was asked individually, it wasn't a mass verdict. Each Lord was asked to return their verdict individually and every single one of them declared him to be guilty.

Bettany
What did the press of the day think about it?

Ruth
Well, we have what the press of the day thought about it further on. The scrap book has extracts which include this lovely picture, which I think is as engraving taken from a portrait which may still exist in the family.

Bettany
And a picture of him being hanged as well.

Ruth
And there's Tyburn. This is Mother Procter's pews that we were talking about earlier on. And there he is, dangling in the middle.

Vic Gatrell
Prosecutions had some symbolic value and a lot of mileage could be made out of the fact that Earl Ferrers, for example, was hanged in 1760 for murdering his steward, a case that's always quoted as evidence of the equality of English law in the 18th century. But he is one Ferrers against countless thousands of people who were condemned to death, whose names are lost to history.

Bettany
Not lost to history are Rob Davey's ancestors. He's discovered the original records of the crimes of Job Cobcroft and Richard Ridge, and the original witness statements. But the crimes aren't quite what he expected. John Cobcroft was an armed robber.

Rob
He robbed a cart of William Frost's family on Edgware Road with two others at gun-point. The report had him holding a pistol at the time. He was a footpad which is an old highwayman apparently without a horse, so they were on foot. Now the witness reports for Ridge stated that he actually robbed Miss Susanna Jewel of a quantity of wearing apparel from her shop and later that night robbed a Mr William Cole of nine geese which I had to have a little chuckle actually because I sort of tried to look for quality information on this ancestry and he's chosen geese.

Bettany
So does Rob think the search has been worthwhile?

Rob
I think once I get home and go through what I found to the rest of the members of the family, they'll be very interested in what I've turned up. I've made sure that I've made copies of everything I've found, so it'll make for some interesting stories once I hit the shores of Australia again.

Bettany
By the 1830s, transportation was becoming increasingly rare. Capital statutes were being repealed and the squeamishness of polite society meant that a public hanging was no longer universally thought to be effective. But the courts were still filled with suspects and, once convicted, the criminals had to have something done with them. Prisons were to be the solution.

The modern era had arrived and, with it, new technologies that began to broaden the scope of criminal records. These days, the sheer volume of recorded information can seem impersonal, but in each and every case, there's a story to tell.

Vic Gatrell
It's really when you get eyeball to eyeball with the petitions for mercy, for example, or the photographs in the Public Record Office of the felons kept in Wandsworth Prison in 1878. Or the indictment papers, the crinkly parchment, that you suddenly realise that you're engaging with real people, with real lives, very often with complicated tragedies, complicated injustices, a hit and miss justice at the best of times.

Bettany
Few people would say that our criminal justice system is perfect but the records that we've looked at have clearly shown that it's more humane now than it used to be. Judges and juries might have survived for nearly 800 years but the severity of punishments has changed considerably. There are no more whippings or brandings and the days when you could be hanged for stealing shoe buckles are, thank heavens, long since gone.

This is a transcript of an episode from Breaking The Seal

 

For further information, take a look at our frequently asked questions which may give you the support you need.

Have a question?