Jacks, Knaves and Vagabonds

Crime, Law, and Order in Tudor England

Durston, Gregory J.

• Publisher: Waterside Press
• Year: 2020
• Print ISBN: 9781909976764
• eBook ISBN: 9781910979938
• Topic: Law
• Subtopic: Legal History
• Index: Law

Students of English history will have heard how benefit of clergy and the 'neck verse' might avoid a hanging, but what of other stratagems such as down-valuing stolen goods, cruentation, chance medley, pious perjury or John at Death (a non-existent culprit blamed by the accused and treated by juries as real); all devices used to mitigate the all-pervading death-for-felony rule.Together with other artifices deployed by courts to circumvent black-letter law the author also describes how poor, marginalised and illiterate citizens were those most likely to suffer unfairness, injustice and draconian punishment. He also describes the political intrigue and widescale corruption that were symptomatic of the era, alongside such diverse aspects as forfeiture of property, evidential ploys, the rise of the highwayman, religious persecution, witchcraft and infanticide crazes.At a time of shifting allegiances — and as Crown, church, judges, magistrates and officials wrestled over jurisdiction, central or local control, 'ungodly customs', laws of convenience or malleable definitions — never perhaps were facts or law so expertly engineered to justify or defend often curious outcomes.Part of Durston's Crime History Series. Covers the entire Tudor era. Based on first-hand historical research. Fully referenced to hundreds of sources.

Part III

Prosecution, the Courts, Trial, and Punishment

Chapter 8

Methods of Prosecution for Felony

Introduction

When Henry VII came to the throne there were three methods for bringing suspected felons before the courts. One of them was clearly dominant, another was still moderately significant but just a few years away from rapid and almost terminal decline, and the third was already moribund. They are considered in ascending order of importance.

Approvement

From the twelfth century onwards a man who was accused of a felony could confess his guilt and ask to turn “approver”. Permitting this was a Crown privilege, so that, if the royal judges (who made the decision) allowed such a course of action, he was called the King’s Approver or probator regis. The approver would then be assigned a coroner who would record his admissions to crimes that he had personally committed and the accusations he made against his former accomplices; he would also provide details of the latters’ whereabouts. Those implicated had to be men who had actively participated in the same crimes as the approver, or at least acted as the receiver for goods stolen during them, not merely those who had committed offences of which the approver was personally aware.¹ One medieval illustration is a case from 1383, in which Richard II wrote to the sheriffs of London ordering them to arrest John Colbrond and Alice Longe (the former’s “concubine”), and three other people, all of whom were resident in the City, if they could be found (a variety of general addresses were provided). They were then to be kept in prison until produced for trial to “make answer unto us as to certain felonies, of which, by an approver, now in the prison of our Marshalsey, they have been accused”.² Given the frequent absence of willing private prosecutors, the procedure allowed the Crown to turn a felon into an officer of justice. Although the process by which the approver’s alleged accomplices were prosecuted was termed an appeal, it should be distinguished from the (related) private appeal of felony (discussed below).

In theory, if not quite always in practice, women, children, and men who had been maimed or who were over the age of 70 years, were excluded from turning approver, not least because, and as with the appeal of felony, those implicated might opt for trial by battle — a judicially supervised duel — rather than by jury. Where this occurred, the parties would be bare-headed, bare-legged from the knees downward, sleeveless from the elbows, armed with long batons with “crooks” made of horn or iron, and protected by four-cornered leather shields. They fought until one of them died, yielded by crying “craven”, or the evening stars appeared.³

During the thirteenth century, such combat occurred quite regularly. It appears that in 1274 a single approver convicted 13 of his erstwhile accomplices through trial by battle, whilst in 1249 another defeated and convicted ten appellees in the same manner.⁴ However, by the early fourteenth century, this method of adjudication was no longer a regular feature of approver cases (or, as will be seen, appeals), and it declined further thereafter. Only two cases of approvers’ battles have been positively identified in England for the fifteenth century, while a thorough scrutiny of East Anglia during the same period has found none at all in what was then an important region.⁵ Nevertheless, such a combat appears to have taken place as late as 1456, being conducted in the traditionally stipulated fashion. In this case, Thomas Whitehorn, a notorious false approver, fought one of the innocent men he had implicated, at the latter’s request, near Winchester. The bout included extensive recourse to grappling and biting. Whitehorn eventually yielded, and admitted that his allegations were false. He was executed shortly afterwards.⁶

Some observers have suggested that it is very unlikely that there were any instances at all of trial by battle in Tudor times (whether on an approver’s or a private appeal). William Stanford, a sixteenth century judge and legal writer, even thought it probable that it could only be claimed if there was a “bare accusation” against the accused, unsupported by other evidence.⁷ Nevertheless, in a case from 1556, it seems that one Richard Reade appealed several men for his brother’s murder. When one of them offered him trial by battle he demurred and abandoned the action, and was even ordered to pay damages to the suspects.⁸ Formal abolition of trial by battle was considered in the early seventeenth century but ultimately waited until 1819.

Some approvers appealed only a handful of accomplices, others as many as 40 of them. In an extreme case, William Rose named 54 men in 1389. The system was particularly effective in breaking up bands of robbers and thieves, something that explains why it survived the institution of the presentment jury in the years after 1166.⁹ In exchange for such services, the approver enjoyed a significant delay (months or even years) to his own trial. This also allowed him the possibility of making an escape in the meantime. For example, one John Tyler, who turned approver early in 1393, escaped while the ensuing process was still incomplete, some three years later. The need to occasion such delay may explain why some approvers’ appeals involved legal process in widely distant counties; for example, one man cited felonies in both Devon and Suffolk.

Alternatively, if the approver secured the arrest and conviction of a sufficient number of his erstwhile accomplices he might be allowed to abjure the realm, or even secure a full pardon and release. However, as the judges of the courts of both Common Pleas and King’s Bench noted in 1442, the commonwealth had to gain a benefit from the approver if the latter was to be considered. In its absence, for example, if those implicated were abroad and so not prosecuted, or if they were acquitted after being brought to trial, the approver would be hanged.¹⁰ There was no set figure for the number of successful appeals required to secure a pardon, although some commentators spoke of at least five being necessary. In practice, few approvers received such mercy.¹¹ The penalty for failure to secure sufficient convictions was death, the approver’s conviction based on his initial confession to the coroner.¹²

Of course, there was always a danger that desperate men might invent accomplices to delay matters or, even worse, make up allegations against innocent people to whet the authorities’ interest and buy time, just as they would when turning “Crown evidence” in later centuries. For example, in the 1450s, the thief Thomas Whitehorn (see above) was sent to the prison at Winchester after being captured in the New Forest. Once there, he “appealed many true men, and by this means he kept his life albeit living it in prison”. Some of these innocent men were, apparently, subsequently convicted and executed.¹³ Less disastrously, in a King’s Bench case of 1454, a Southwark yeoman named John Owden, sentenced to death for felony, attempted to save his own life by turning approver and accusing eleven Bristol burgesses of various capital offences, including plotting treason with the French. Investigations into Owden’s story quickly revealed it to be a total fabrication, and he was duly executed.¹⁴

Furthermore, improper pressure may have been placed on some potential approvers to implicate others. William Nethercote, who eventually claimed benefit of clergy in 1394 (and whose ability to read meant that he was never in fear for his life), ultimately withdrew his appeals, claimed that they were formulated for him, and revealed that his original consent to this course of action had been obtained by the use of thumbscrews.¹⁵ On another occasion, four men claimed that they were forced to turn approvers after being hung up by their hands and feet by the constable of Worcester Castle, while a Norwich approver testified that he had been kept naked while in gaol, and without food or drink, for three nights, during which he was tortured by the sheriff and constables.¹⁶ Unsurprisingly, in these circumstances, there was often considerable distrust of approvers’ appeals, and the great majority that went to trial ended in an acquittal.¹⁷

Even so, the use of approvers continued on a fairly regular basis throughout the early 1400s, albeit founding only a small minority of total prosecutions. They were employed extensively during the reign of Henry V, particularly to deal with professional counterfeiters in the Midlands, and secured a significant numbe...

Table of contents

• Copyright and publication details
• About the author
• Acknowledgements
• Preliminary Matters
• The Criminal justice System
• Prosecution, the Courts, Trial, and Punishment
• Avoiding the Death-for-Felony Rule
• Crime
• Frequently Used Acronyms
• Bibliography
• Index