J.S. Cockburn (Ed.), Calendar of Assize Records; Essex Indictments Elizabeth I. HMSO, 1978.

Reviewed for the American Journal Of Legal History, VOL. XXIV (1980), PP.171-177

Alan Macfarlane

p.171

   The calendar of Essex assize indictments is a fine achievement and Dr Cockburn is to be congratulated for bringing the publication of the Elizabethan Home Circuit assize documents to a successful conclusion. Unfortunately, the price of the volume will make it inaccessible except in well-endowed libraries. The Public Record Office really must investigate the use of cheaper production methods, including the use of computer output and microform, which could have cut the cost of this volume to a tenth of its price. The calendar in itself contains a great deal of information for legal, social and economic historians. Before it can be used, however, it is necessary to understand how the court which produced these indictments worked. There is no introduction to this calendar to explain this, but Dr Cockburn has provided us elsewhere with an excellent guide. [1] There we learn that the indictments are only a tiny fragment of the records which were produced by the court, documents which have almost all been destroyed. We also need to realize that, like other legal records, the indictments are not what they seem. The information in them cannot be used by historians without being aware of the systematic distortions contained in them. This is not explained in this calendar, and once again we have to look elsewhere in Cockburn's writings for the essential description of the biases in the indictments. [2] If we place this calendar alongside Cockburn's other accounts we find ourselves in a curious position. On the one hand we find that as an editor Dr Cockburn has produced at great expense and with immense care a vast calendar of records. Simultaneously, as an archival historian he has proceeded to demolish these same records, arguing that perhaps half or more of the indictments contain serious errors of fact. This raises general problems worth exploring in more detail.

   Some years ago J.M. Beattie warned us that assize indictments were of limited value in the analysis of crime for two major reasons. Firstly they omit a great deal that is of interest to the historian, for instance the motive and the degree of violence employed. Secondly, there is a very large gap between the amount of crime committed and that which is indicated. [3] Cockburn has taken the criticism a stage further by suggesting that the indictments are also inaccurate. This means that

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social historians need to treat them with extreme caution. Cockburn also draws the implication that we can learn a good deal about criminal process from this discrepancy. The inaccuracies were such that perhaps up to half of the indictments were technically invalid. The fact that they were not challenged by grand and petty juries or the accused tells us a great deal about the role of juries, Justices and the court bureaucracy. We may expand Cockburn's argument to show the implications it has for legal historians.

   Contemporary authorities were unanimous in their demand that indictments for felony must be both certain and precise and Cockburn summarizes this literature effectively. [4] As Jacob concluded in his Law Dictionary, 'there is a great strictness required in indictments, where life is in question; and therefore very nice exceptions thereto, are of later times allowed...indictments ought to be more certain than common pleadings in law, because they are more penal, and to be more precisely answered unto...they must be precise and certain in every point...' [5] Yet by comparing the recognizances and indictments for the counties of Hertfordshire and Sussex, where, unlike Essex, both survive, Cockburn has discovered that 'perhaps even a majority of indictments, while technically satisfying the legal requirements, are factually worthless' in that the information under the various headings was fictitious. [6] Thus 'in a large number of cases the occupation attributed to the accused in an indictment, or his place of abode, or both, are entirely fallacious' so that we discover that there is a 'central fact of massive factual discrepancies in indictments' which means that there were numerous convictions 'on what amounted to fallacious charges'. Thus, Cockburn proceeds, it is indeed 'difficult to resist the conclusion that a moderately alert attorney could have made mincemeat of perhaps half of the indictments considered at assizes.' [7]

   Cockburn then proceeds to argue that this apparently large gap between legal theory and legal practice shows us the following facts about court procedure. Firstly, it tells us how ineffective were the grand jury who were meant to examine bills of indictment. That they failed to detect the fact that up to half the bills were 'fallacious charges' means that we can minimize the 'possibility of decisive interference by grand juries' in the trials. [8] Once the grand jury had failed to rectify the mistakes and had endorsed these factually inaccurate documents as 'true bills', they were conveyed with the prisoner to the next stage of the trial. Here the jury of life and death also failed to detect the errors. This failure, Cockburn argues, is the 'most damaging of all to long-cherished notions of amateur control' for it limits

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'the contribution of trial juries to the endorsement of a decision already shaped by bureaucratic agencies. [9] What Cockburn is strongly implying is that the clerks of the court were now dominant. The cherished belief in the jury trial system of England is largely a myth. A third implication is for the role of Justices of the Peace. Alluding to the theory of John Langbein which suggests that Justices sometimes acted as prosecutors at assize trials, Cockburn asks whether 'on the evidence now before us are we not entitled to ask by what process they managed to prosecute successfully cases in which the evidence they themselves had certified as accurate was glaringly and materially at variance with the indictment upon which the accused was being tried?' [10] At the more general level, these discrepancies show us a great deal about the absence of interest in criminal law at the period under discussion. In this respect, the position at the assizes was particularly bad. Cockburn concludes that 'in the absence of evidence to the contrary, once must assume that discrepancies on such a scale were probably unique to a court which was not only subject to the general rule excluding defence counsel but was also divorced from the source of professional interest and opinion at Westminster. [11]

   There can be no doubt that Cockburn's arguments are of great value to the increasing number of social historians who have used or are using criminal indictments. Topics such as the geographical distance between criminals and their victims or the temporal fluctuations in crime rates cannot now be studied without taking into account Cockburn's findings. Yet it may possibly be the case that in the aftermath of the shock of finding these massive discrepancies Cockburn has over-reacted. In particular, it could be argued that the discrepancies do not have the implications for legal process which Cockburn has taken them to have. The following argument is offered as a contribution to solving the very real dilemma which Cockburn has raised. Only further research will confirm whether it is a more plausible interpretation than that offered by Dr Cockburn.

   A comparison of recognizances and indictments led Cockburn to conclude that there were five areas where there was often contradiction or, at the least, the information is not what it seems. The first is that in a number of cases the person accused as the principal was not the major criminal, but rather an accessory or receiver. This is obviously true, but it has no great implications for legal historians. Being an accessory to a felony was indictable. As Cockburn himself argues, the probable reason for this practice was to put pressure on the accessory to reveal the principal. It is possible by comparing indictments and verdicts to show that while the number was indeed 'significant', as a proportion of all cases, or even of thefts, it was not large. A second questionable piece of information concerns the value of the goods specified in the indictments. Cockburn rightly points out that indictments show suspiciously contradictory valuations, a fact which can also be found in other contemporary documents, for example probate inventories. This is vital for those interested in the valuations as evidence

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 on prices, but it has no implications for legal process. All that was needed for the purposes of an indictments was a crude figure which stated whether the value of a stolen object was over or under twelve pence. Obviously, of a worthless object was valued at over 12d, the boundary between petty and grand larceny, there might be objections. But the difference between valuing a horse at 4 shillings or 4 pounds was legally immaterial.

   The third area of uncertainty lies in the supposed date of the offence. Cockburn found that between a third and a half of the dates in the indictments was different by between one and seventy-one days to the date given in the recognizance. This inconsistency is not legally grounds for questioning an indictment. As Burn stated the position: 'But though the day or year be mistaken in the indictment, yet if the offence were committed in the same county, though at another time, the offender ought to be found guilty'. He continued by pointing out that an exact date was only needed in those rare felonies where there was escheat or forfeiture of land and it was only for this reason that 'it is best in the indictment to set down the time was truly as can be, though it be not of absolute necessity to the defendant's conviction. [12] Thus the juries would not be interested in establishing minor contradictions of date.

   A fourth area of inconsistency concerns the occupation and status of the accused. As Cockburn rightly says, 'the omission of the accused's status or occupation, or proof that he had been accorded an occupation other than his own, voided the indictment.' [13] By comparing the recognizances and indictments Cockburn then finds that there are 'literally dozens of cases' where there is a discrepancy, thus people are styled labourer in one document, linen-draper in another, labourer or bargeman, baker or brewer and so on. Cockburn's assumption is that one of these is right and the other wrong, invented by the clerk and demonstrably an error. In fact, it seems more likely that the discrepancies are more apparent than real and arise out of several features of contemporary social structure. Firstly, many people had more than one occupation, thus they were very often both a baker and a brewer. Often they combined occupations which to our eyes seem fairly incompatible, clergyman and farmer, for example. A second problem is that the statute 1 Henry V, c.5, which laid out the requirement for the 'addition' stated that an 'estate or degree or mystery' were required. In other words, either status or occupation were sufficient. What we find is that very often one document will give an occupation, for example linen-draper or bargeman, the other will give a broad status, for example labourer, husbandman or yeoman. A third problem is that many people changed occupations and status quite rapidly in this period; it was often the case that they were on the move and how they were described would depend very much on who was asked and to which period of their life he was referring. Thus it seems likely that only very gross discrepancies, such as the one case instanced by Cockburn where an attorney of the Common

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Pleas was discharged when he proved that he was not a 'husbandman' would be worth discussion by the juries.

   The final area of uncertainly lay in the assigning of a place from which the accused was supposed to have come. Cockburn gives a number of instances of cases where there were contradictions of parishes and even of counties. He suggests that some of these can be explained by the practice of giving the accused a place of origin which was the same as that where the crime was supposedly committed. He also suggests that the assize clerk invented residences for people in the indictments, giving people 'notional' domiciles. [14] Cockburn is obviously right in relation to the former point. By checking fifty persons accused in the Essex parish of Earls Colne between 1559 and 1670 against all other local records it is possible to be certain that roughly one quarter of them were outsiders who were not present in the village except, possibly, in association with the crime. The figure rises to one third for the Elizabethan period. [15] As regards invention by the clerks, we again need to take into account certain features of the society. It is now clear that there was a very great amount of short-term and long-term geographical mobility at this time. A person was often born in one place, had legal settlement in a second, became a servant in several more, owned a house in another, had living parents in a further place and was temporarily residing at yet another. The difficulty of deciding where a person was 'of' seems to have been recognized in the wording of 1 Henry V.c.5. To be included in the indictment were the 'hamlets, or places, and counties, of the which they were or be, or in which they be or were conversant'. Under this very broad requirement it would be possible to state a previous residence or merely a place where a person was or had been 'conversant'. The Oxford English Dictionary gives as the legal definition of 'conversant' the following: 'dwelling habitually or frequently, accustomed to live or abide, passing much of one's time in a place'. It is very easy to see how the statute could be interpreted to include the place where the crime was supposed to have occurred, for it could well be argued that a person had been there and was 'conversant' there. Blackstone's late eighteenth century opinion was that though time and place were to be specified in indictments, 'a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment, and the place to be within the jurisdiction of the court.' Blackstone was here referring to an act of 7 George IV.c.64, but it may well be that the juries had followed such an interpretation earlier. [16] Furthermore, it seems likely that the places mentioned in the various documents usually reflected some connection with a place where the accused had once been, though not necessarily his permanent residence or current abode.

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   All this is not to argue that there were no errors of fact. No doubt many errors were made and those which were detected and corrected have mostly disappeared. It was stated that 'while the jury who found a bill of indictment is before the court, it may be amended by their consent in matter of form, the name, or addition of the party etc....clerks of the assize and of the peace etc. drawing defective bills of indictment shall draw new bills without fee... [17] Other indictments may have been successful yet contained real errors of fact. Yet it does not seem totally implausible to argue that while there were certainly many approximations and notional values and dates, very few of them were legally 'fallacious'. Indeed, we may give one illustration of the way in which the discrepancies between indictments and other documents come to mirror a complex reality rather than the fiction-making of the clerks. In the prosecution of several criminals at the northern assizes in the 1680s we find recognizances and indictments which speak of a Henry Smorthwait of New Hutton or Middleton in Westmorland and of a William Smorthwait of Middleton in Westmorland or Clapham in Yorkshire or Austwick in Yorkshire. A detailed reconstruction of the case which it is possible to make because assize depositions have survived shows that the two brothers had been brought up and continued to have rights in property in Middleton. Later they moved to new homes in New Hutton and a hamlet on the borders of Clapham and Austwick. Their crimes were committed in Cumberland, Westmorland, Yorkshire and Lancashire, which added to the difficulties of locating and trying them. As for occupation, William Smorthwait was termed yeoman in the indictments, but elsewhere he was given styles varying from husbandman to gentleman. The same case also gives some evidence of the way in which both grand and petty juries were not merely inactive and subservient in relation to clerks and magistrates. Finally, from the manuscripts of the major Justice involved in the case it would appear that it was sometimes the practice of the Justices themselves to sketch out rough bills of indictment which were then modified by the grand jury and drawn into formal shape by the clerks. [18]

   As regards Cockburn's final major point, that inconsistencies on this scale makes it very unlikely that Justices could have played any part in the trial, the previous argument throws some doubt on this deduction. It is quite possible that he is right in doubting that Justices acted as prosecutors and cross-examined in court. But this view gains no support from the types of discrepancies between indictments, recognizances and examinations which we have discussed.

   We have sketched out a tentative argument. If it is right it would explain why no contemporary authorities commented on the glaring contradictions and legal anomalies which Cockburn has only recently uncovered. We have suggested that differences in the documents reflect different versions of reality, rather than the absolute truth of one document and the fictional nature of another. Thus it seems possible that we are not dealing with documents which belong to that large class of legal fictions which cloud the fantasy world of property law. Contemporaries were right in saying that indictments must be certain and precise, but they gave large bounds to both certainty and precision. If it appears after further research that this argument is correct, it should please Dr Cockburn. For though it would undermine his attempt to minimize the role of juries and Justices, it would increase the value of those documents which he has spent so much time making accessible to us. It would be pleasant after his great contribution to our understanding of early criminal justice if we were able to come to his rescue as he attempts to saw off the branch upon which he is sitting.