The Time Traveller’s Guide to Restoration Britain

by Ian Mortimer

  You may think this amounts to a fair trial. Three witnesses would be enough to secure a conviction in a modern court. But let’s look at the circumstances a little more closely. The crime is seen only through holes in the wall, which, if they went unnoticed on the other side, must be very small and discreet. The witnesses are all known to each other. All three are present on the day of the deed, and thus probably live next door to the accused. They often spy on her, by their own confession. They have a negative view of the men she entertains in her bed, whom they call ‘villains’, and by implication they have a low opinion of the woman herself. Thus they are clearly prejudiced against her, even before 23 June. Then comes the day of the supposed act. Maybe they are all genuinely horrified by what they see. Maybe they just hate their ‘lewd-tongued’ neighbour and decide to get rid of her. Maybe they fear her dog will bring plague into their row of houses, as she lets it into her bedchamber. We don’t know. But you might notice that, although there is time for all three of them to witness the offence over and over again, they do not send for a constable or a person of similar authority. They collude in reporting her, because they want her dead: we can say that categorically because there are no lesser punishments handed out for crimes of this sort. The judge does not pick apart their evidence for its flaws; nor does he interrogate the first woman as to why she spies on her neighbour. He does not ask how the holes came to be there in the first place – or even if there actually are any holes for that matter; instead, he accepts her dog’s mere recognition of its owner as confirmation of her offence. That is what this case comes down to: three people who dislike their next-door neighbour and see that they can exploit her weaknesses. If a judge in such a case does not want to give a woman in such a position the benefit of the doubt, then that is the end of her.

  If you find yourself accused in this way, you may well have to resort to bribery to clear your name. In 1694 Edward Barlow, by now a very experienced mariner, beats an insubordinate sailor with a cane for refusing to carry out orders. Ten days later that sailor is one of four men who die aboard the ship. Most people would assume that the cause of death is an illness (as four men die at once), but the beaten man, swearing to his last breath that the blows are the cause of his suffering, persuades his fellow sailors that Barlow is responsible for his death. These men then tell the sailor’s widow back in England. She searches out Barlow on his next visit home and threatens to have him arrested for manslaughter. Barlow thinks he has nothing to worry about but his friends persuade him that he is better off paying the woman £50 in compensation rather than risk a trial.8

  High status and wealth also underlie influence that modern observers would describe as ‘improper’. You will have difficulty accepting the means by which most MPs are elected: they either bribe the voters in their constituency or secure the goodwill of the landowner, who directs his tenants to vote one way or the other. John Evelyn’s brother, George, has to pay out £2,000 on food and drink to secure his Parliamentary election – and he feels it is unjust only on account of the large sum required.9 Perhaps more reprehensible still is the practice of siphoning money out of government budgets. The Writer of Tallies is an office that originally had a salary of £91 per annum in the reign of James I. By the end of the century various office-holders have managed to raise that to nearer £300 – but, far more importantly, the incumbent charges fees worth £6,000 annually and has secured a pension worth £1,500 per year – all funded by deductions from ordinary soldiers’ pay.10

  I’ve said it before, but it is worth repeating: justice is a relative concept in all ages. If it is fairness you want from your legal system, I suggest you visit a period of history that prioritises the person over property, reality over religion, science over superstition, equity over influence and fairness over the process of the law. In finding such a time, I wish you luck.

  Policing

  The word ‘police’ is not yet in use in England; it still has to make the jump across the Channel from France. Nevertheless, there are several officers and organisations that perform similar roles. Every county has a sheriff, a Lord Lieutenant and one or two deputy lieutenants; these men, along with the Justices of the Peace, are responsible for maintaining law and order in their localities. On the whole, the Lord Lieutenant is primarily responsible for guarding against foreign threats, and the sheriff against domestic ones, including crimes. Every town has its bailiffs or beadles. Each county has its militia, a local force of part-time, semi-trained men who can be called out to put down riots or break up unlawful assemblies. Parishes have at least one constable, appointed by a local Justice of the Peace or by the parishioners: his role is to arrest suspects and bind them over, and to make enquiry into the circumstances of a crime. Often he will continue his usual occupation alongside his legal responsibilities, so you might find yourself being arrested by a baker, a butcher or a candlestick maker. In London, each of the twenty-six wards has a constable who breaks up quarrels and, in more serious cases, arrests the culprits and marches them off to the stocks or prison. Bellmen keep a watch for open and broken windows at night.11 Selected citizens are obliged to patrol the streets of their ward, armed with halberds. These men constitute the town watch, and their like is to be found in most towns up and down the country.

  It is worth knowing a few things about the powers of the sheriff and constables, just in case you find yourself on the wrong side of the law. The sheriff is responsible for maintaining the king’s peace; executing the king’s writs and instructions; summoning juries to try accused people; hanging them or otherwise punishing them, as directed by the king’s justices; collecting fines; and examining smaller pleas in the county court. He and his officers are legally empowered to arrest you without showing a warrant. They may detain you at any time of day or night, and even on a Sunday (although no action at law may proceed against you on a Sunday, nor can any document against you be dated that day). A sheriff may break open any house to arrest you or to apprehend your goods in the case of a felony. Constables have similar powers in that they may arrest you for breaking the peace but, if they do so, unless it is night-time, they are obliged to take you straight to the county gaol – they are not permitted to lock you up in a private house or in the parish stocks. A constable may not arrest you for a violent act after it is done except with a warrant. He may arrest people on suspicion of felonies, especially nightwalkers, and he can search suspected bawdy houses for loose women. He may also detain people who sleep during the day. It stands to reason that, if you are sleeping in the daylight hours, you must have been up part of the night and probably up to no good. But it seems a bit tough if you are arrested simply for having a nap.12

  The Administration of Justice

  So you’ve committed an offence, the constable has raised the hue and cry and all the neighbours have chased after you and caught you. Now you are in the county gaol. No doubt you’re cold and damp, surrounded by several dozen men and women in the same dark cell, some eyeing you up to see what you might have that’s worth stealing or whether they can take advantage of you in some other way. What now? Of course, it depends on what you are accused of. Is your offence merely a misdemeanour? Or is it a felony, such as murder, housebreaking, rape or theft of something worth more than 12d? Either way, you are likely to be lingering in this dank cell for weeks, awaiting your day in court.

  The seventeenth-century justice system operates at many levels. The highest courts in the land are those of King’s Bench, Exchequer and Common Pleas. It is highly unlikely that you will have anything to do with these. Although King’s Bench has the power to call in cases from lesser courts, it doesn’t interfere with felonies, and you will only end up here if you appeal a judgement from a lower court or have taken part in a riot.13 However, lawyers from all three courts regularly travel around the country to sit as assize judges. In that capacity they try those arrested for felonies – crimes sufficiently serious that they normally require a death sentence. Lesser offences (misdemeanours) are dea
lt with at a local level, by magistrates. Although magistrates no longer hang miscreants, they still have a wide range of powers, from imposing fines and floggings to more general administrative matters, like licensing. They also deal with routine local business, like bastardy disputes and bridge repairs, in the petty sessions. At a yet lower level there are manorial courts that will fine you if you cause a legal ‘nuisance’, such as allowing your cesspit to overflow on to the highway or letting your cattle trample someone’s crops.

  Running alongside this secular justice system is a similar hierarchy of ecclesiastical courts. At the top are the archbishops’ courts, which have authority over the provinces of Canterbury and York. At the next level down are the consistory courts, which preside over individual dioceses. And below that are the archdeaconry courts. All these ecclesiastical courts deal with routine matters like probate administration and ecclesiastical buildings, but they also hear cases concerning the moral law. If you are an adulterer, your case will be heard by an ecclesiastical court. If you are a drunkard, philanderer, blasphemer, slanderer, defamer or someone who does not attend church every Sunday, it is the archdeacon’s apparitor who will send for you and threaten you with dire punishment, unless you can produce compurgators or compurgatrices in court to swear to your innocence. On the whole these courts, like the manorial courts, exist in order to maintain order amongst neighbours; nevertheless you should be aware of their existence, lest you fall foul of their high moral standards.

  At your trial you will face a few legalistic difficulties. First, there will be no assumption that you are ‘innocent until proven guilty’. Experts in jurisprudence on the Continent are just beginning to discuss this idea but it has not yet touched British shores.14 The next big problem you will encounter is that you don’t have the right to remain silent in court. If you are asked a question, you have to answer. Standing mute is not an option. Then there is the lack of lawyers. A legal case is basically a confrontation between you and the person who is accusing you, in front of a judge and jury. No lawyer can speak for you until 1696, and then only in cases of treason or a misdemeanour – those accused of a felony have to defend themselves.15 The thinking here is that, if you are innocent, the judge will ascertain this and direct the jury accordingly, so lawyers are unnecessary. That might set alarm bells ringing with you, and quite rightly. From the 1690s, lawyers start to appear for the prosecution – especially in cases of treason, sedition and libel – so things are doubly stacked against you, if you don’t have a lawyer. Moreover, cases proceed bewilderingly fast. You might be on trial for your life but do not expect to have a hearing that goes on much beyond half an hour. Some are over in less than ten minutes.

  When your trial begins, the indictment will be read out, detailing your supposed crime. A grand jury will be asked to decide whether the accusation is sufficiently well founded to proceed to trial. The prosecution can testify at this stage but you may not say anything in your defence. If the grand jury decides there is insufficient evidence, the case is dismissed and you are free to go. Forget about the weeks you spent in that miserable cell awaiting this moment; there is no such thing as compensation for wrongful detention. If the grand jury decides you do have a case to answer, then the indictment is marked as a ‘true bill’ and the case proceeds before a petty jury. First, you will be formally charged. Then you will be required to hold up your hand to acknowledge that you are the person accused and will be asked to enter a plea. If you plead Guilty, then the judge will proceed to sentencing forthwith. If you plead Not Guilty, the trial begins. Do plead one way or the other; if you refuse, there is a particularly gruesome ordeal awaiting you (described below).

  Presuming you plead Not Guilty, you will be summoned into court by a crier, to stand before the bar that separates you from the scarlet-robed judge and his assistants. The judge then calls for twenty-four men to serve as a jury, selects twelve and asks if you have any objection to any of them hearing your case. You may object to up to twenty potential jurors in an accusation of a felony, or thirty-five in a case of treason; each one rejected will be replaced. When a set of twelve jurymen has been agreed, the indictment will be read out, as will your deposition. Witnesses for the prosecution will be called to give evidence under oath. You may interrogate them – indeed you must, for the onus is on you to prove yourself innocent, and you won’t have a lawyer to do it for you. When all is said and done, the judge gives a summing-up speech and sends out the jurymen to consider their verdict. They are not allowed food, water or heat while they deliberate your fate; the law requires them to come to a unanimous decision as quickly as possible. In the 1660s, they can be locked up for contempt of court if their verdict displeases the judge. In 1670 this changes: a jury refuses to find two Quakers guilty of unlawful assembly and the judge imprisons them without food until they change their verdict. When they refuse to do so, he fines them 40 marks (£26 13s 4d) each. The foreman, Edward Bushel, refuses to pay the fine and so goes back to prison. He obtains a writ of habeas corpus and not only gains his freedom, but makes legal history. In granting the writ, the judge, Sir John Vaughan, establishes that juries are henceforth free to reach verdicts contrary to those of the judge. Bushel’s Case is another little step along the long road to civilisation.

  Scottish and English law are both descended from feudal law, and thus have much in common, but there are a number of important differences. Scottish law has its own hierarchy of courts, with the local and burgh courts at the bottom, the sheriffs’ courts above them, and the High Court of the Justiciary (established in 1672) and the Court of Session at the top. Serious crimes such as murder, rape, treason, heresy, witchcraft and counterfeiting are dealt with by the High Court of the Justiciary. Scottish law has borrowed much more heavily from Roman law, so the processes and procedures vary from their English equivalents. Juries can still be locked up by a judge throughout the period. Torture is permitted (whereas it is not in England), and women are not normally allowed to give evidence. Punishments also differ. Witchcraft in Scotland is a heretical crime punishable by burning – although the condemned person has to be strangled first. There is no writ of habeas corpus, therefore you cannot insist that you be charged or released. But what will strike you as the greatest difference is that the king’s writ is largely ignored in the Highlands and Islands. This is, after all, the only place left in Britain where you can still encounter the blood feud and medieval-style robber barons. Although the government tries to force the heads of all the clans to come to Edinburgh once a year to give sureties for the good behaviour of their clansmen, many do not attend. Even if they do, they are a law unto themselves. In 1671 Macleod of Assynt levies a tax on ships entering the water of Loch Inver; he also captures a neighbour and holds him to ransom. When the sheriff takes action against him, he defends his house with 400 men. After the government has issued a commission of fire and sword against him in 1674, Lord Seaforth and Lord Lovat storm his house with 800 troops, using a battering ram. They arrest him and drag him to the Tolbooth for trial – but the case against him is found Not Proven by a jury who are terrified of his revenge. And so Macleod returns to Assynt to carry on as before.16

  Punishments

  As you may already have realised, most punishments are carried out in public, partly to shame the condemned person and partly to deter others. In some cases, public humiliation is a key element of the penalty. Several men are arrested in 1660 for having sat in judgement on Charles I, even though they did not sign his death warrant. They are sentenced to forfeit their lands, titles and honours and to be imprisoned for life; but their punishment also involves them being drawn on a hurdle to the gallows every year, with a rope around their necks, as if they were going to be hanged. Nor do you need to have sat in judgement on a king to suffer such ignominy. As anyone who has spent any length of time standing in the pillory will tell you, it is not the pillory itself that inflicts the damage but the behaviour of the public. Executions are carried out in front of large crowds, and accou
nts of hangings are widely circulated in broadsides and official publications. The Ordinary of Newgate’s Account of the Behaviour, Confession and Dying Words is one example, produced every time someone is executed in London. Its message is simple: the wages of sin are death – and not just any form of death, but a particularly agonising one.

  PUNISHMENTS FOR TREASON

  Of all the public executions that you really want to avoid, being burnt at the stake is surely the worst. Fortunately for men, it is not a punishment that we have to face in this period. Although, technically speaking, men can be burnt to death for heresy, this law has not been enacted in England since 1612 and is repealed in 1671. Women, however, are required to be burnt for treason as well as heresy. So there are days when the air at Tyburn and Smithfield is rank with the smell of wood smoke and burning flesh. Dozens of women die in this way, some for high treason and others for petty treason.