Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions

NORMA LANDAU

In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals. And, as the English realized, private prosecutors posed a problem: how could the English ensure that private individuals would spend their own time and their own money in prosecuting an offender who had committed an offense against the peace of the realm? Parliament's solution was to proffer the carrot: sixteenth-century statute decreed that his prosecution of the thief was, in itself, action sufficient for the owner of stolen goods to recover those goods, 1 while from 1692, statutes offered rewards to successful prosecutors of highway robbers, burglars, coiners, and other specified offenders. 2 In contrast, England's magistrates wielded the stick, binding a plaintiff bringing an accusation of felony to prosecute an indictment against the alleged felon. 3 As a result, private prosecutors of major offenses were both bribed and compelled to prosecute. Private prosecutors of more minor offenses were neither bribed nor compelled to prosecute, and yet they did, nonetheless, prosecute indictments. Why?	1
This article examines the most private of those private prosecutors—prosecutors who would not even have considered themselves duty bound to prosecute. 4 It examines prosecutors of indictments for nonfelonious offenses against the person, offenses that were almost always assault, or riot, or both. 5 As the overwhelming majority of such prosecutions were brought at Quarter Sessions, this article investigates the prosecution of such indictments at the Quarter Sessions of eighteenth-century Middlesex. And it argues that, in eighteenth-century Middlesex, prosecutors of such indictments aimed not at punishing the defendant, but instead at obtaining compensation. These indictments were, in essence, civil suits.	2
The claim that some early modern indictments were, in essence, civil suits is by no means novel. Historians have argued that some indictments for assault concluded with a settlement between prosecutor and defendant and so have noted the affinities between indictments for assault and civil suits. 6 This article argues that, before the late eighteenth century, almost all indictments for nonfelonious offenses against the person concluded with a settlement between prosecutor and defendant. 7 As these prosecutions constituted a large proportion of the indictments brought at eighteenth-century Quarter Sessions, their quasi-civil nature raises questions about the framework within which they have been discussed. Indictments for nonfelonious offenses against the person have been analyzed within the context of debates about crime and the courts in early modern England. However, since these indictments were quasi-civil suits, they present the intriguing possibility that neither the acts that generated these indictments, nor the proceedings on these indictments, nor the defendants at whom they were aimed were really "criminal."	3
I. Why Evidence about Prosecutors of Nonfelonious Offenses Is Scanty
Investigation of what motivated prosecutors at Quarter Sessions of indictments for assault, riot, and other nonfelonious offenses against the person has to confront a major evidentiary problem: the three varieties of evidence used to analyze accusations of more serious crime are much less likely to provide assistance in analysis of these indictments, because it is much less likely that such evidence ever existed or has survived.	4
The first type of evidence, recognizances binding prosecutors to prosecute, and so identifying the prosecutor's status and place of residence, was almost always extracted from prosecutors of felonies, but rarely from prosecutors of nonfelonious offenses at Quarter Sessions. In the first six decades of the eighteenth century, less than five percent of indictments for nonfelonious offenses against the person at Middlesex Quarter Sessions were brought by prosecutors compelled by recognizance to prosecute. 8	5
Just as justices were less likely to bind in recognizance to prosecute a plaintiff alleging such an offense, so they were less likely to take the second type of evidence, statements (depositions and examinations) from either plaintiff or defendant, statements they would return to Quarter Sessions. The law demanded that such statements be taken when a felony was alleged and its alleged perpetrator apprehended. 9 However, not only were nonfelonious offenses against the person not felonies and so less likely to impel justices to take such statements, 10 but defendants to bills of indictment for such offenses were markedly less likely than alleged felons to be apprehended and taken before a justice before they were indicted. For example, of the 1158 defendants in the Middlesex bills of indictment on which this article is based, 11 only 429 (37 percent) were placed in recognizance or incarcerated before they were indicted. As their prosecutors did not bring any of the remaining 729 defendants to court until after they had secured their indictment, it is likely that they also did not appear before a justice before bringing their indictment. As only a minority of both prosecutors of and defendants to these bills of indictment appeared before a justice and so could have given a statement; and as justices were less likely to take statements from these prosecutors and defendants than from those associated with allegations of felony; statements relevant to indictments for nonfelonious offenses against the person would have constituted only a small proportion of the statements returned to Quarter Sessions. 12 And most of the statements returned to Quarter Sessions have not survived. 13 Of the 696 bills of indictment on which this article is based, only two left statements in Quarter Sessions's records. 14 It is therefore not possible to deduce the motives of prosecutors of these indictments from statements of either prosecutor or defendant made before indictment.	6
The third type of evidence is even more rare. The report of the trial of a defendant indicted for assault or riot would, quite probably, reveal something about the prosecutor's motives in bringing the indictment. However, there are few such reports, for two reasons. First, only a small proportion of those against whom the grand jury found a bill of indictment for nonfelonious offenses against the person stood trial. For example, of the 907 indicted defendants in the sample, only 180 (20 percent) were tried. Second, it seems their trials were considered so uninteresting that reporters rarely, if ever, noted them. While the felonies tried at Assizes and the Old Bailey (Middlesex's version of the Assizes) stimulated interest sufficient to support a series of publications, 15 no publication ever devoted itself to trials at Quarter Sessions. Indeed, when at the end of the century London newspapers occasionally reported trials at Middlesex Quarter Sessions, they deemed few trials for nonfelonious offenses against the person of interest sufficient to attract readers. Not one of the trials of the sixty-five defendants in the sample who stood trial in the 1790s was so much as mentioned in The Times.	7
Since the sources which would identify prosecutors and allow them to tell their own stories are so scant, this article resorts to a behavioral approach to the problem of prosecutorial motivation: it assumes that prosecutors were moved to prosecute through contemplation of the results obtained in other similar prosecutions. And so this article uses some of the analytic categories that have distinguished discussions of the treatment of crime by early modern courts. It examines the outcome of bills of indictment, presenting the percentage of defendants who were indicted, the percentage of these who were convicted, and the types of punishment inflicted upon these convicts. The records of Middlesex Quarter Sessions provide unusually complete information for this type of analysis, for Middlesex's clerks kept both a series of registers of indictments, which for most periods give a clear statement of both verdict and punishment, 16 and a series of Sessions Books, which record the action taken on these indictments in court. 17 As hundreds, and by the end of the century, thousands of bills of indictment were preferred at Middlesex Sessions each year, the indictments on which this study is based must necessarily be a sample. The indictments in the sample are the bills of indictment for nonfelonious offenses against the person presented to the grand jury 18 at the Middlesex Quarter Sessions of: October 1701 through April 1702; October 1733 through January 1734; October 1753 through January 1754; July 1774; May and October, 1795, and January, 1797. 19 The outcome of these indictments should provide some clue as to why their prosecutors spent time and money bringing them.	8
II. Oddities of These Prosecutions
However, when the analytic categories usually used to delineate the ways in which the courts dealt with crime are applied to these indictments, the results are distinctly odd. For though, as was usual for other varieties of indictment, the grand jury found bills against a very large proportion of defendants 20 —indeed against 907 of 1158 defendants (78 percent)—the cases against an oddly large proportion of defendants to indictments for nonfelonious offenses against the person were not prosecuted to a final disposition at Quarter Sessions. So, of 907 defendants indicted by the grand jury, 325 (36 percent) were neither acquitted nor convicted at trial, nor did they confess, nor obtain a stay of proceedings, nor have their indictment removed by writ of certiorari to King's Bench. 21 Nor was this lack of prosecution unique to Middlesex. Sarah Anne Barbour-Mercer found that, at Yorkshire Quarter Sessions in the last four decades of the seventeenth century, the cases against 49 percent of defendants indicted for assault did not reach a final disposition at Quarter Sessions. Similarly, James Sharpe discovered that there was no record of action against 38 percent of the defendants against whom the grand jurors of seventeenth-century Essex found indictments for assault, and no record beyond a plea of innocence for a further 15 percent of defendants. And Peter King found that there was no final disposition at Essex Quarter Sessions for the cases against 20 percent of those indicted for assault from 1748 to 1797. 22 If the vision inspiring prosecutors of indictments alleging offenses against the person was the visitation of justice upon the defendant, then these prosecutors must have found Middlesex Quarter Sessions a most disheartening institution: only 387 of the 1158 defendants (33 percent) against whom they brought charges were ever sentenced.	9
Table 1. Sentences of Those Convicted of Offenses against the Persona     a Fines reported in this table, and elsewhere in this article unless specified otherwise, are the fines ultimately assessed by the bench, fines which in some cases had initially been set higher than reported here. b This column counts only those whose sentence did not include a fine. Those sentenced to both a fine and another punishment are included in the counts of those fined.
Nor do the sentences inflicted upon convicted defendants render their prosecutors' motivation more evident. 23 For, as Table 1 demonstrates, almost two-thirds of those convicted at Middlesex Sessions of offenses against the person were sentenced to a fine of 18d. or less. (Almost all of these were fines of one shilling.) Indeed, as Table 1 also demonstrates, over four-fifths of convicts were sentenced to a fine of just 3s. 4d. or less. A very few of those fined—17 (5 percent) of those fined 3s. 4d. or less, and 11 (46 percent) of those fined over 6s. 8d.—were also sentenced to incarceration, some to incarceration until they paid their fine, and others to both incarceration and fine. 24	10
Nor did the court insist that some defendants pay even these minimal fines. For, in many instances, the convict escaped payment altogether and did so with the full and express consent of the bench. Such escape was effected when the bench ordered that a convict's fine be estreated. The order meant that the fine would be reported to the monarch's Exchequer in the annual report, known as the estreat, and it would be reported as unpaid. Convicts whose fines were estreated were discharged from paying that fine to Quarter Sessions. They still owed their fines to the monarch, and the monarch would, in theory, receive those fines when the Exchequer ordered the sheriff to order his bailiffs to collect them. However, it is highly unlikely that the bailiffs would act upon these orders. The sheriffs' bailiffs received "poundage" of a shilling in the pound for each sum they collected. 25 It is unlikely that the prospect of earning a ha'penny (on a fine of 1s.) or tuppence (on a fine of 3s. 4d.) would lure bailiffs into searching for discharged convicts. And so, in practice, convicts sentenced to a small fine, which was then estreated, were excused from paying their fines.	11
In the first six decades of the eighteenth century, a considerable proportion of fines—almost always small fines—were estreated. Of the fines of 3s. 4d. or less levied at the sample sessions of 1701 to 1702, 9 percent were estreated, as were 33 percent of such fines in the samples for each of 1733 to 1734 and 1753 to 1754. 26 Estreat as a means of forgiving fines had almost vanished by the late eighteenth century. Possibly the bench had decided that it was not a good idea to foster the belief that fines to the monarch could be repudiated with impunity. At the same time, the bench was also ensuring that convicts could pay their fines, even if, to do so, they had to fine the convict just a penny. 27	12
As 22 percent of defendants at Middlesex Quarter Sessions charged by prosecutors with offenses against the person were not indicted by the grand jury, as the cases against 36 percent of those indicted did not even reach a final disposition at Quarter Sessions, as only 43 percent of those indicted were convicted, 28 and as 77 percent of convicts were sentenced to just a fine of 3s. 4d. or, and usually, less, the categories historians have used to analyze the proceedings of the criminal courts—rate of conviction and type of punishment—do not provide an altogether satisfactory explanation of the reasons prosecutors prosecuted. True, prosecutors may have comforted themselves with the assurance that, in bringing a prosecution, they were doing their duty as English men and women. But doing their duty was expensive. Not only did they lose time at work (and the associated wages or profits) when they prosecuted. They also had to spend at least 3s. just to prefer an indictment, and, most probably, a couple of shillings more to bring their defendant to court. 29 What satisfaction could they have found in spending more money than the court fined their defendant just to have that defendant so minimally fined?	13
III. The General Release and Prosecutorial Satisfaction
Nonetheless, prosecutors did receive satisfaction from successful prosecution. Indeed, they explicitly acknowledged their receipt of satisfaction and did so in a document that bulks large in the papers of eighteenth-century Quarter Sessions. This document, hitherto unexamined in analyses of the criminal courts, is the general release.	14
The general release stated that the person signing the document (the prosecutor) released the people specified in the document (the defendants) from "all and all manner of Actions, Cause and Causes of Actions, Suits, Bills, Bonds, Writings obligatory, Debts, Dues, Duties, Accounts, Sum and Sums of Money, Judgments, Executions, Extents, Quarrels, Controversies, Trespasses, Damages, and Demands whatsoever, both in Law and Equity or otherwise howsoever" that the releasor, his heirs, executors or administrators might claim "from the Beginning of the World unto the Day of" the release. 30	15
The release was originally invented to give legal status to the settlement of disputes that, if not settled, would be determined by the civil courts. However, by at least the early eighteenth century, it was being used to give effect to the settlement of disputes that had generated indictments at Quarter Sessions. 31 Most releases in the papers of Middlesex Quarter Sessions are printed forms that just reiterate the standard formulae for the general release presented in attorneys' precedent books. Some releases, however, suggest that the defendant had doubts as to whether the release was sufficiently comprehensive as to include indictments. And so, in some releases, the hand-written word "Indictments" is inserted in the list of actions annulled by the release. 32 As the release itself reveals, it was an instrument for the final termination of all claims to prosecute a dispute in the courts, an instrument which was being adapted from the civil courts for use in Quarter Sessions.	16
Why would a prosecutor surrender his right to prosecute? Why would a defendant demand that the release state specifically that the prosecutor had no right to prosecute an indictment that had been found by the grand jury? Because the defendant had, somehow, satisfied the prosecutor. Quite frequently, there is a handwritten note on the release stating that the releasor had received "satisfaction" from the releasee. 33 Sometimes, these notes even disclose what had proved so satisfying: it was money.	17
How much money? As one would expect, the amounts vary. And they vary not only because the defendants had inflicted varying types of damages upon their prosecutors, but also because prosecutors who extracted satisfaction from their defendants did so at varying stages of prosecution. Most releases signify satisfaction achieved after indictment, but before trial; but others signify agreement reached after trial, after the prosecutor (who may have employed an attorney or even a barrister) had invested more money in the prosecution. As prosecutors' costs and causes were so various, it is not surprising that the sums prosecutors received as "satisfaction" varied enormously. The largest payment noted in the releases of the mid-1750s and mid-1790s is £15—£10 for damages and £5 for the prosecutor's solicitor. 34 The smallest is for 1s. 35 More usually, prosecutors received sums ranging from 10s. to £5.	18
What then of the prosecutor who preferred an indictment against a defendant who manifestly could not pay, who might not even be able to reimburse the prosecutor for the costs of prosecution, let alone the damages he had suffered? While prosecutors clearly considered money satisfying, money was not the only source of satisfaction. Successful defense of one's reputation could be quite satisfying. So, for example, when John Howard indicted Elizabeth Staines, the wife of a coachman of New Brentford, for assault, Quarter Sessions ordered that she "make a submissive and public acknowledgment" of her offense "in the open market at Brentford, where she gave the abuse to the said Mr. Howard, and to ask his pardon there, which Mr. Howard is willing to accept, in regard to the poverty of ... her husband." 36 Reputation was a reflection of public opinion: it was the generally accepted evaluation of a person who claimed to be valued. And so it was appropriate that the punishment for an act that unjustly besmirched someone's reputation be the convict's humiliation by her prosecutor before the public that evaluated his reputation. 37	19
John Howard's satisfaction left a written record only because Quarter Sessions ordered that his defendant apologize. Most probably, other prosecutors also received satisfaction through their defendants' apologies made in a public arena, but such apologies are unrecorded. However, by the middle of the eighteenth century, there was a new public arena which was also a written record, and prosecutors received satisfaction by humiliating their defendants here as well. The new arena was the newspaper, in which from mid-century Londoners placed advertisements of apology. 38	20
Placement of a written apology in a public document, there to be read by or to the relevant public, was not an eighteenth-century invention. In the seventeenth century, an apologist might have his apology inscribed on the roll of the relevant manorial court, along with the order that the apology be read aloud at the next meeting of the court leet. 39 However, like Elizabeth Staines's submission to John Howard in Brentford's marketplace, the apology inserted in a court roll addressed just a localized and concentrated public. Not so the newspaper advertisement, which provided an arena suitable for apology to a prosecutor who considered his public metropolitan rather than local. Most probably, even in the era of newspaper advertisements, some prosecutors received satisfaction from defendants who performed a ritual of submission before their neighbors. Most certainly, a few Middlesex defendants satisfied their prosecutors by publishing an advertisement of their apology in a newspaper. By the late eighteenth century, even defendants at provincial Quarter Sessions were placing advertisements of apology in the county newspaper. 40 Occasionally, the satisfied Middlesex prosecutor would just submit a statement to Middlesex Sessions explaining that, as the defendant had published an advertisement of apology, he had decided not to proceed further with the prosecution. 41 And occasionally, a release issued by a prosecutor satisfied by a public apology survives in Middlesex's Sessions papers. 42	21
IV. Confessions, Stays of Proceedings, and Released Defendants
While the prosecutor who granted a release was, clearly, a satisfied prosecutor, his satisfaction posed a problem for Quarter Sessions: what was Quarter Sessions to do with a defendant whose prosecutor had signed a document that rendered him unable to prosecute? And Quarter Sessions did have to decide what to do with these defendants, for defendants who had been released were also almost invariably defendants who had been placed in bond to attend the court. 43 Quarter Sessions solved the problem of the released defendant, but the procedural devices it used to solve this problem have camouflaged the existence and the prevalence of the satisfied prosecutor, and so the nature of prosecution at Quarter Sessions. Indeed, analysis of the solutions adopted by Quarter Sessions suggests that most convictions at Quarter Sessions for offenses against the person were convictions founded on satisfied prosecutors.	22
Quarter Sessions had two procedural solutions to the problem of defendants under legal obligation to attend the court who had nonetheless been released by their prosecutors. Almost all defendants availed themselves of the first solution: they confessed and were sentenced to a small fine. Of the 57 released defendants in the samples for 1753 to 1754 and 1795 and 1797 who appeared in court, 53 confessed and were fined 1s. As a 1738 manual on court procedure stated: "Sometimes the Prosecutor and Defendant agree before the Defendant pleads to the Indictment, and then the Defendant comes into Court, in his proper Person, and pleads Guilty to the Indictment; and upon proving (by a subscribing Witness) a general Release executed by the Prosecutor, the Defendant submits to a small Fine...." 44 The second solution, more expensive, and adopted by the remaining four released defendants in the sample, was a stay of proceedings. 45 Nonetheless, some defendants preferred to pay higher fees rather than acknowledge by confession any involvement in the action for which they had been indicted, a preference quite understandable when, for example, a defendant had been indicted for assault with intent to commit sodomy. 46 Releases, quite evidently, brought indictments at Quarter Sessions to conclusions, to conclusions that satisfied the prosecutor but did not visit the punishment of the court upon the defendant.	23
If the prosecutor's release of a defendant almost always produced either a confession associated with a tiny fine, or (less frequently) a stay of proceedings, does that mean that almost all confessions associated with small fines were based on agreements reached out of court between the prosecutor and his defendants? The evidence suggests that this is indeed the case.	24
Perhaps the most persuasive evidence of the almost inevitable association of confessions educing small fines with releases comes from the end of the eighteenth century. For, by the late eighteenth century, the clerks of Middlesex Quarter Sessions routinely noted confession followed by a one-shilling fine with the phrase "Rel ver and Conf fine 1s," a phrase that the clerks of Westminster Quarter Sessions obligingly amplified as "Release verified and Conf[essed] fine 1s." 47	25
Unfortunately, though the clerks used the phrase "rel ver" throughout the eighteenth century, they had not, in the early eighteenth century, used it to signify "Release verified." The phrase "rel ver" was originally an abbreviation of the Latin "relicta verificatione indictamentum cognovit"—"abandoning proof [of his innocence], he acknowledges the indictment." 48 In other words, the phrase denotes a defendant who first pleaded his innocence of the charges in his indictment and then confessed. And, during the first six decades of the eighteenth century, the phrase "rel ver" is associated only with defendants who first plead their innocence and then confess. 49 Mindful of their Latin, the clerks practicing before the accession of George III did not confuse the phrase "rel ver" with an English homonym. Not so their successors: by the end of the century, the phrase "rel ver" routinely appears in clerks' notes of confessions even when defendants had not previously pled their innocence. Such routine association of the phrase "rel ver," now meaning "release verified," with confession surely argues that by the late eighteenth century confessions were usually based on releases.	26
Another type of evidence suggests that, by mid-century, confessions associated with a small fine were usually based upon a release. That evidence is the releases themselves. Unfortunately, it seems likely that not all releases submitted to Middlesex Quarter Sessions have been preserved in the Sessions papers. For instance, no releases survive for the October session of 1753, even though each year's October session was that most inundated by releases. 50 It is therefore not possible to base a count of the percentage of confessions that were educed by releases on a report of the percentage of confessions for which releases survive.	27
Nonetheless, it is evident that a large proportion of releases submitted at some sessions have survived, and a collation of these releases with the stays granted at these sessions and the confessions there eliciting sentence of a small fine is indicative of the proportion of confessions and stays that were founded upon satisfaction made to prosecutors. For instance, there are releases in the Sessions papers for 1795 on the indictments found at the May and October sessions of 1795 for all but two of the eleven confessions made and for all four of the stays of proceedings granted before December 1795. 51 Similarly, of forty-four confessions resulting in a small fine to indictments for offenses against the person found at the sessions of October 1753 through January 1754 and made to the court after December 1754, twenty-two left releases in the Sessions papers. 52 These releases therefore reveal that a very large proportion of confessions and stays were, from at least the mid-century on, the court's response to releases, and so to out-of-court agreements between prosecutors and defendants.	28
Releases do not provide similar evidence about the court's practices in the first four decades of the eighteenth century. In the early eighteenth century, releases were indeed submitted to Quarter Sessions, but Middlesex's clerk of the peace did not routinely include them in the records of the court. His practice changed in 1740, when the justices in Quarter Sessions ordered that every general release "given by any prosecutor to a Defendant (who is or shall be Indicted in this Court and intends to discharge such Indictment by confession)" be "kept among the Records of this Court as a Warrant to Justify the discharge of Such Indictment." 53 From the 1740s, it is therefore possible to find much evidence that prosecutors were routinely receiving satisfaction from their defendants. Nonetheless, the release—the instrument for achieving that satisfaction—had been in routine use since at least the beginning of the eighteenth century.	29
Table 2. Convictions Based on Confession and Resulting in a Small Fine     a Any sentence involving an order for the defendant's incarceration (except orders rescinded during the session at which they were made) is excluded from the columns displaying convicts sentenced to just a small fine.
Routine use of the release, 54 and its routine association with a sentence of just a small fine, suggests that most convictions at Quarter Sessions for offenses against the person were based on satisfaction made, out of court, to prosecutors. As Table 2 demonstrates, most defendants convicted at Middlesex Quarter Sessions for nonfelonious offenses against the person were defendants who confessed and upon whom the court then imposed a sentence limited to a small fine. Nor was Middlesex unique in producing defendants who obtained releases from their prosecutors, or in producing defendants who confessed and then suffered sentence of a trivial fine. Williams's analysis of prosecutions for assault in Berkshire has demonstrated the presence there both of releases and of the one-shilling fine as the most usual punishment for assault, while King has shown that in Essex, before the 1780s, the overwhelming majority of convicts on assault charges were confessed convicts, upon whom Quarter Sessions inflicted the punishment of a one-shilling fine. 55 As it was the justices sitting in Quarter Sessions who determined sentence, their sentences hint that they considered a satisfied prosecutor one of the chief desiderata of a prosecution, a desideratum usually more important even than punishment of the convict by monarch, state, and community.	30
V. Quarter Sessions's Proceedings and Prosecutorial Satisfaction
Of course, justices confronted with a defendant released by his prosecutor before either party had even told their stories to the court 56 did not have much opportunity to exhibit their opinion either of the charge against the defendant or of the purpose of indictment in general. They were facing a fait accompli—a defendant who had rendered his prosecutor unable to prosecute on a charge that they had never heard. The justices had greater opportunity to influence the court's proceedings when the parties to an indictment allowed the proceedings relevant to their case to take place in court. And when that happened, the justices revealed that they did indeed think satisfaction of the prosecutor an important and legitimate goal of indictment. For the procedures their court adopted when the defendant had not obtained a release before he told his story to the court were procedures designed to encourage the defendant to satisfy his prosecutor.	31
There were three situations in which a defendant who had not satisfied his prosecutor could appear before the court, there to receive his sentence. First, the defendant could decide to confess even though he had not obtained a release. Indeed, as several manuals advised, in cases of "trifling Assaults," confession was probably the best strategy. A confessing defendant could introduce evidence in mitigation of his offense—for example, evidence that the prosecutor had made the first assault, evidence he could not present were he convicted at trial. 57	32
Clearly, if the court were to hear from the defendant, it would also benefit from hearing the prosecutor's case. Therefore, defendants who intended to confess had to give notice to their prosecutors so that their prosecutors could attend the court. 58 Some defendants nonetheless found ways to circumvent their prosecutors. They might, for example, confess to the court at a time when the prosecutor would believe that the court was not considering his indictment. So, in 1720, Middlesex Sessions ordered that no confession be taken in the afternoon, a rule it considered necessary to prevent defendants from being discharged "in a clandestine or undue manner." 59 The release, too, provided opportunity for clandestine discharge. After all, a prosecutor who had signed a release had signed a document notifying the court that he would not prosecute the defendant. Such a prosecutor did not need to be notified that the defendant intended to confess. And so, as one would expect, at least one release was forged. In 1739, Westminster Quarter Sessions put two men in the Gatehouse prison, one for impersonating a defendant, and the second for "publishing a general Release between them." 60 Within a year Middlesex Sessions was ordering that all releases be accompanied by an affidavit to the release sworn in open court by at least one of the witnesses to the release. 61 Despite his forgery, a defendant appearing on a forged release was, nonetheless, a defendant who was confessing to the offense for which he had been indicted. The court, however, clearly thought it necessary that the prosecutor have his day in court.	33
Undoubtedly, the prosecutor of a confessing but unreleased defendant participated in Quarter Sessions's deliberations about the sentence appropriate to his defendant. The prosecutor most certainly informed the court of the offense and called his own witnesses. 62 Undoubtedly, too, the court considered the prosecutor when sentencing the defendant. The court might encourage the defendant to satisfy the prosecutor before it pronounced sentence 63 —encouragement which could explain the tiny fines imposed on confessed defendants for whom no releases survive. Indeed, even after it imposed sentence, the court would mitigate that sentence if the defendant satisfied his prosecutor. For example, several weeks after Quarter Sessions fined William Dover £3 on each of two indictments, Dover submitted a release from his prosecutors and was awarded a reduction of each fine to just one shilling. 64	34
Prosecutors found the court similarly helpful in dealing with defendants who refused to confess, and had so been tried and found guilty. There were two stages in Sessions's proceedings that the court structured so as to promote the satisfaction of prosecutors who had triumphed at trial. First, there was the interval between the jury's delivery of its verdict and the justices' pronouncement of sentence—an interval that, according to a much-cited eighteenth-century manual, the court recommended that the defendant use "to speak with the Prosecutor (that is to make him amends for the Injury done him) and if the Prosecutor comes and acknowledges a Satisfaction received, the Court will set a small fine on the Defendant, as three Shillings and Four-pence, or Twelve-pence." 65 Defendants evidently followed the court's recommendation. Of eighty-five defendants found guilty at trial for an offense against the person, twenty were sentenced to a fine of 3s. 4d. or less. 66	35
When such conversation between defendant and prosecutor proved unsatisfactory, the court had yet another opportunity to promote prosecutorial satisfaction. It was the justices who determined the defendant's sentence, and Middlesex Sessions sentenced defendants recalcitrant in the arts of satisfaction to very high fines, frequently associating that sentence with an order that the defendant be imprisoned until he paid the fine. The justices expected that such sentences would effectively signal their desire that these defendants satisfy their prosecutors, and these sentences did do just that. For example, in 1778 Quarter Sessions fined William Harding £40 on each of two indictments for assault; the attorneys for defendant and prosecutors then met and agreed that the defendant pay the prosecutors a total of just £30, upon which the defendant successfully petitioned for mitigation of his fine and his discharge from the House of Correction. 67 Like Harding, many of those convicted at trial and sentenced to a substantial fine thought satisfaction of their prosecutor (enemy though he be) preferable to paying the fine. Of thirty-nine fines originally set at over 3s. 4d., on defendants convicted at trial of offenses against the person, twenty-four were reduced, including sixteen reduced to 3s. 4d. or less. 68	36
Clearly, a prosecutor whose defendant had been sentenced to imprisonment until he paid an extraordinarily punitive fine was in a highly satisfactory position—too satisfactory, as the court realized. Such a prosecutor might make exorbitant demands of his defendant. And so the justices made it a standing order of their court that, on the last day of the session, defendants "on whom fines shall have been Imposed ... with a view to their talking with the prosecutor be again brought before the Court so that the Court may Examine if the Offender had offered reasonable satisfaction or done all in his power towards the same." If the prosecutor had declined a reasonable offer, then the justices sitting in court would reduce the defendant's fine "within the abilities of the defendant or so much as they shall think proper." 69 It is likely that this late eighteenth-century order merely made a formal rule of what had been standard practice throughout the century. When, for example, in 1720 the court fined John Hamilton £50 for assault, it reduced his fine to £2 after learning that his prosecutor's agent would not accept Hamilton's offer of £15. 70 Similarly, when John Toine confessed and was ordered to tender a guinea to his prosecutor, the court fined Toine just 13s. 4d. on his attorney's report that neither his prosecutor nor his prosecutor's attorney would accept less than £4. 71 That the justices usually evaluated unsuccessful negotiations between defendant and prosecutor, that they did not insist that the defendant confronted by an unreasonable prosecutor either meet the prosecutor's demands or pay an equally unreasonable fine, and that they actually allotted a specific portion of their proceedings to consideration of these unsuccessful negotiations: all indicate that the justices expected that the usual and normal result of conviction for an offense against the person would be a defendant who made satisfaction to his prosecutor. And, in fact, the overwhelming majority of convictions did meet their expectations. As Table 1 demonstrates, 82 percent of defendants convicted at Middlesex Quarter Sessions for an offense against the person were fined 3s. 4d. or less, fines emblematic of the court's recognition of satisfaction made to prosecutors.	37
VI. Satisfied Prosecutors of Unconvicted Defendants
That most convictions for nonfelonious offenses against the person resulted in compensation to the prosecutor explains the oddity of the trivial fines imposed on those convicted for these offenses. So, too, it explains the other major oddity presented by these indictments—the large proportion of defendants whose cases did not reach a final disposition at Quarter Sessions. It is likely that prosecutors did not prosecute these defendants, even though they had indicted them, because prosecutors were not really interested in bringing defendants before the court, there to have the court work its will upon them. Prosecutors were interested, instead, in obtaining compensation for the offense.	38
As a result, there is a significant difference between the efficiency with which prosecutors at Quarter Sessions prosecuted offenses and that with which they prosecuted defendants. While the cases against only 64 percent of defendants indicted by the grand jury reached a final disposition at Quarter Sessions, 78 percent of indictments found by the grand jury produced at least one defendant whose case reached that final disposition. 72 Prosecutors, interested in obtaining payment rather than in punishing defendants, lost interest in pursuing prosecution of the defendants charged in their bill as soon as they had received compensation from one defendant. A compensated prosecutor had got what he wanted. That other defendants involved in the offense had not yet been brought before the court, there to make obeisance to monarch, state, and law, did not seem to bother prosecutors one whit.	39
Indeed, prosecutorial indifference to the prosecution of unsentenced codefendants was actually fostered by the release, the document that marks the prosecutor's conclusion of a successful prosecution. A release might well include among its releasees defendants who, though indicted, had not yet been placed under legal obligation to appear at Quarter Sessions, there to plead to an indictment on which at least one other defendant had been sentenced. So, in 1754 John Jessett, victualler, and his wife Elizabeth, and John Jenkins, coal merchant, released the weavers Thomas Baron, Thomas Bennett, and John Chapman, and Chapman's wife Sarah, though only Bennett appeared at Quarter Sessions, where he submitted the release, confessed, and paid a fine of one shilling. 73 Even if a prosecutor had wanted further to pursue his unsentenced defendants, it is quite possible that, in signing a release, he had made himself vulnerable to a civil suit if he did prosecute them. When he had brought his indictment for a nonfelonious offense against the person at Quarter Sessions, the prosecutor was prosecuting an offense which Quarter Sessions categorized as "trespass." According to legal manuals, "if two Persons commit a Trespass, the Release of one Trespassor shall discharge the other." 74 "Trespass" was a category of offense in both civil and criminal law, and it is likely that these manuals were really just summarizing the legal parameters of the release granted in civil trespass. However, it is also likely that those granting releases on indictments, and their attorneys, believed that in adopting the release of a civil suit for the release of an indictment, they had also committed themselves to the restrictions intrinsic to grant of a release for a civil trespass.	40
Indeed, it is likely that the release to some extent explains why, in 22 percent of indictments found by the grand jury for offenses against the person, prosecutors did not prosecute the case against any defendant to a final disposition at Quarter Sessions. Surviving evidence of prosecutorial activity subdivides these indictments into two categories: those in which there is no evidence that a prosecutor caused a defendant to enter into a recognizance to attend the court; and those in which there is no evidence of prosecutorial activity after a defendant defaulted on a recognizance to attend or a bond to traverse his indictment.	41
For 8 percent of indictments found by the grand jury, indictments in which the case against no defendant was prosecuted to a final disposition, prosecutors had caused at least one defendant to enter into a recognizance to appear or a bond to traverse, a bond or recognizance on which the defendant then defaulted. As Middlesex's clerk of the peace explained, sometimes defendants who had entered into recognizances or bonds and subsequently agreed with their prosecutors "thought all was ended." 75 So, every autumn, Middlesex's clerks sent letters warning the principals and sureties of defaulted recognizances and bonds that, unless they appeared at Sessions, their obligations would be estreated into the Exchequer and they would become liable for the considerable sums for which they had been bound. And, every autumn, defendants appeared at Middlesex Quarter Sessions, proffering releases signed months before and obtaining the discharge of their obligations. 76 By the time some defendants realized that they had to appear at Sessions, they could no longer even find their release. William Curtis swore that, after meeting with his prosecutor at a public house and obtaining a release, he had put the release in his desk, from which—so his apprentice said—his maid servant had taken it to light the fire. 77 Quite possibly, some defendants who defaulted on their bonds or recognizances had obtained a release, and even the clerks' letters (if they actually reached these defendants) 78 would not persuade them that the release was of itself insufficient to discharge their obligation.	42
The release may even explain why, for 14 percent of the indictments found by the grand jury, there is no evidence that any defendant was ever placed in any obligation to appear in court. Had these prosecutors spent their own time and money to bring an indictment and then just decided to drop the matter? Evidence from the clerk's fee books, evidence available for the late eighteenth century only, reveals that at least some of these prosecutors had attempted to bring their defendants to court. Of the twenty-one indictments found by the grand jury in the sample for 1795 and 1797 on which no defendant appeared in court or was placed in recognizance to appear in court, at least six had prosecutors who, once their indictment was found, paid the fees for the bench warrant which commanded that peace officers apprehend their defendants. 79 However, as these defendants were under no obligation to attend the court until they were either brought to court or before a justice who placed them under legal obligation to attend the court, it is probable that at least some of these defendants were apprehended and then immediately compensated their prosecutors, so circumventing both appearance in court and payment of the court's fees. The release would provide such defendants with necessary and sufficient protection against further prosecution on their indictments. The release made such out-of-court settlements legally enforceable, and so possible.	43
Indeed, the release even made possible settlements on indictments on which the prosecutor took no further legal action whatsoever against his defendants after bringing his indictment. It is quite conceivable that the prosecutor would just inform his defendants that he had succeeded in bringing an indictment against them; they might then have Quarter Sessions's clerks search their records to verify his claim; 80 and, once they found themselves to be indicted, they would then satisfy their prosecutor and, of course, obtain a release. The release made possible the ultimate in out-of-court settlements—the settlement of a prosecutor with a defendant whom he had never even attempted to bring into the court.	44
And so the release presents a challenge to current interpretations of crime and the courts. While at odds on almost every other issue, these interpretations have usually agreed in presenting the court's role as active: the court's juries weigh evidence and determine guilt; its justices adopt policies in sentencing and punishment; proceedings in the court—be they judicial determinations or legal ceremonies—broadcast concepts of law's nature and law's relation to the community. 81 In contrast, for most prosecutions for offenses against the person at Quarter Sessions, Quarter Sessions is a mere nominal presence. The decisive action—the settlement of the case—takes place out of the range of the justices' hearing and usually outside the walls of their court. In this light, Quarter Sessions is merely an institution structured so as to encourage disputes to be settled extra-institutionally.	45
VII. Indictments as Civil Suits?
Releases therefore raise questions about the assumptions underlying current discussions of crime and the early modern courts. For these discussions have labeled the offenses determined at Assizes and Quarter Sessions as "crimes," the proceedings under which they were determined as "criminal," and their defendants, therefore, as putative "criminals." However, legal proceedings that conclude with compensation paid by defendants to their prosecutors bear considerable resemblance to civil suits. Indeed, when indictments for assault were brought at Assizes, they were tried on the civil rather than the criminal side of the court. 82 The satisfied prosecutor therefore suggests that, in the early modern era, there were considerable affinities between civil and criminal proceedings, more so than there are today.	46
In the eighteenth century there was good reason for a plaintiff seeking compensation from his defendant for a nonfelonious offense against the person to prosecute by indictment rather than by civil suit. Prosecution by indictment was less expensive; and it also allowed the prosecutor to present evidence he could not present in a civil suit. According to law, a plaintiff bringing a civil suit who would profit from conviction of his defendant could not give evidence against that defendant. As a defendant convicted on a civil suit would probably have to pay compensation or make restitution to his plaintiff, a plaintiff in a civil suit therefore usually could not testify against his defendant. 83 However, as compensation was, in legal theory, not the goal of an indictment, a prosecutor could give evidence on an indictment, evidence which he would not have been permitted to give in a civil suit, after which he could still make a settlement with his defendant. 84	47
Even if a plaintiff had witnesses who could testify in a civil suit, he might well have found it preferable to bring an indictment. The prosecutor's usual out-of-pocket costs for an ordinary civil action in King's Bench amounted to £12—£18 if he employed an agent to manage his case, and £23 if his case was managed by an attorney. 85 If the prosecutor was bringing a civil action for assault and battery, and he was awarded less than £2 in damages, the law's rules made it quite possible that he could not recover from the defendant as reimbursement for the costs of prosecution a sum higher than that awarded him in damages. 86 A plaintiff risked much less in prosecuting at Quarter Sessions. In the mid-eighteenth century, prosecution of an indictment for petty larceny at Quarter Sessions, including trial of that indictment, could cost just 15s. 87 In 1720, prosecution of an indictment at Middlesex Quarter Sessions by a solicitor, including prosecution at trial, could cost about £2. 88 True, prosecutions at Quarter Sessions could cost more. When in the late eighteenth century an enterprising attorney published a manual showing the costs of legal proceedings by reproducing bills presented to their clients by the attorneys who had managed their cases, his manual included a bill for £14 13s. 8d. for prosecution of a special indictment for assault at Westminster Quarter Sessions. The bill included charges for employing counsel. If the prosecutor had both managed his case himself, and not employed counsel, his costs would have been £3 15s. 10d. 89 As this manual was designed to present bills covering any charge that might possibly be levied, it is quite likely that the case was more complex and so more costly than most. The case does exhibit the stigmata of an expensive contest—the special and so more costly indictment, seven witnesses and the fees incurred by serving them with the relevant documents and bringing them to court, and a removal of the case by the defendant to King's Bench. 90 Even so, the charges incurred by this prosecutor fade to insignificance when compared with those presented in the same manual as incurred by prosecutors of civil suits. Indictment was a procedure both less expensive and more efficacious than a civil suit, a procedure that nonetheless attained the same goal as a civil suit—a satisfied prosecutor.	48
Indeed, the similarity of these eighteenth-century indictments for nonfelonious offenses against the person to civil suits is not limited to that of identical goals. For the means to reach that goal, the legal proceedings on each action, were more similar in the eighteenth century than they seem today. In the twentieth century, indictment can be defined as a written accusation of crime presented to the grand jury, 91 and standard guides to the law consider indictments under the heading "Criminal Law and Procedure." 92 However, in the early modern era, offenses that we would not consider "crime" or even "misdemeanor"—offenses such as a parish's failure to repair its roads—were routinely addressed by prosecution of an indictment. And prosecution of an indictment could well seem less removed from prosecution of a civil suit than it does today. Today, in Britain, most civil suits in the high courts are settled before they reach trial, but plea bargains, and so conviction without trial, affect relatively few criminal cases. 93 Indictable offenses are tried, and the paradigmatic trial for such offenses is trial by jury. But if a civil case in the high courts does reach trial, that trial is almost always by judge and not by jury. 94 Both of these features—whether the case is settled out of court, and whether it is heard by a jury—highlight criminal law's sphere as that of offenses against the public. Perhaps the feature of modern criminal law which most emphasizes the public preoccupation of that law is the public prosecutor. The overwhelming majority of charges of offense against the criminal law are now laid by people employed by the public to do so.	49
In contrast, in the early modern era almost all prosecutions, whether public or private, whether criminal or civil, were brought by private prosecutors, and their reasons for bringing these prosecutions affected the way in which the courts were both administered and used. Small wonder then that an entrepreneurial outlook characteristic of the private individual's use of the law permeated use of the criminal as well as civil courts. 95 Sometimes government attempted to prohibit such entrepreneurship, as when it prohibited the compounding of a felony. Sometimes government tried to exploit the entrepreneurial opportunities afforded by the courts, as when it offered rewards for successful prosecution of heinous offenders. But when government neither hindered nor encouraged entrepreneurial use of the criminal courts, prosecutors used them for their own purposes, purposes that may well have had little to do with criminal proceedings, crime, or criminals. When eighteenth-century prosecutors brought indictments for assault, riot, or other nonfelonious offenses against the person, their goal was not punishment of the defendant (perhaps the defining characteristic of a criminal proceeding), 96 but instead the extraction of payment, or less frequently, apology from the defendant. To such prosecutors, their defendants had two outstanding characteristics: they were people who had done them wrong, but could put them right. Should such defendants be labeled "criminals"? Indeed, had they committed "crimes"? And were the accusations against them being determined in a "criminal court"? 97 The satisfied prosecutor of a "criminal" offense raises questions about the assumptions defining categories basic to current discussion of early modern crime and the courts.	50
Norma Landau is a professor of history at the University of California at Davis. She thanks Harriet Jones, Sarah Millard, Susan Palmer, Louise Salcini, and Richard Samways, all on the staff of the Greater London Record Office (now the London Metropolitan Archive), for their courtesy and help; and Michael Saler and Tom Barnes for their interest and advice. Notes       1. 21 Henry 8, c. 1
2. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 2, The Clash Between Private Initiative and Public Interest in Enforcement of the Law (London: Stevens and Sons, 1956), 57-61, 64-66.
3. A mid-sixteenth-century statute, 2 & 3 Phil. & M., c. 10, commanded magistrates to place in recognizance witnesses against those apprehended on charges of felony, the recognizance to be discharged when the witness appeared to give evidence on prosecution of an indictment. By the seventeenth century, this statute was being interpreted as commanding magistrates to bind a plaintiff who accused an apprehended defendant of felony in recognizance to prosecute a bill of indictment. See Richard Burn, The Justice of the Peace (London, 1756), 208, under "Examination." By the early eighteenth century, if not before, the overwhelming majority of prosecutors of charges of felony at the Old Bailey (Middlesex side) had been placed in a recognizance to prosecute.
4. A large proportion of indictments at Stuart and early Hanoverian Quarter Sessions were charges against people who had failed to maintain parish amenities or who had violated laws regulating the economy. Almost all indictments of the first variety, and many of the second, were brought by parish officers. No such indictments are included in this analysis.
5. The indictments here categorized as indictments for nonfelonious offenses against the person also include indictments for rout, attempted rape, false imprisonment, the rescue of someone in custody, and the solicitation of murder. Indictments that couple a charge of offense against the person to other types of charge—such as perjury, blackmail, or an offense against property—are not here categorized as indictments for offenses against the person.
6. J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 457-58, suggests that about one-third of those convicted of assault in late seventeenth-century Surrey had reached a settlement with their prosecutors. However, his less detailed comments in "Violence and Society in Early-Modern England," in Perspectives in Criminal Law, ed. A. N. Doob and E. L. Greenspan (Aurora, Ontario: Canada Law Book, 1985), 42, suggest that a greater proportion of those convicted of assault reached such settlements. Peter King, "Punishing Assault: The Transformation of Attitudes in the English Courts," Journal of Interdisciplinary History 27 (1996): 43-74, focuses on the increased use of imprisonment as a punishment for assault, presenting this change in punishment as a reflection of change in English and magisterial evaluations of the gravity of the offense and so a contrast to earlier punishments, which treated assault as a private matter. R. B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660—1725 (Cambridge: Cambridge University Press, 1991), notes that prosecutors at Middlesex Quarter Sessions occasionally reached settlements with their defendants (129, 159, 161) and that some indictments for assault could be viewed as disputes about property and so as civil disputes (129, 131, 161). For indictments for assault as civil disputes, see also: J. A. Sharpe, Crime in Early Modern England, 1550-1750 (London and New York: Longman, 1984), 45-46, 178-79; Clive Emsley, Crime and Society in England, 1750—1900 (London and New York: Longman, 1987), 140-41.
7. As this article argues that most prosecutors bringing indictments at Middlesex Quarter Sessions for nonfelonious offenses against the person did so in an attempt to obtain some form of compensation from their defendants, it has to confront Shoemaker's argument in Prosecution and Punishment. Prosecution and Punishment contrasts Middlesex's indictments to the recognizances returned to its Quarter Sessions that were unassociated with indictments. It argues that indictments "rarely" resulted in out-of-court settlements or compensation paid the plaintiff (see especially 85) but that the recognizances unassociated with indictments that were returned to Quarter Sessions usually emanated from disputes settled before Quarter Sessions met and so from settlements that often included compensation paid the plaintiff (see especially 95, 98, 101-11). My findings suggest different conclusions about both recognizances and indictments and so about the nature of Quarter Sessions, the purposes for which it was used, and the types of behavior likely to be reflected in its records.
In "Appearance at the Quarter Sessions of Eighteenth-Century Middlesex," London Journal 23, no. 2 (1998): 37-40, I examine Prosecution and Punishment's evidence that recognizances unassociated with indictments usually emanated from disputes settled before Quarter Sessions met and conclude that this evidence applies to only a very small proportion of such recognizances returned to Middlesex Quarter Sessions. It is therefore unlikely that a large proportion of recognizances that were returned to Quarter Sessions and were unassociated with indictments represent disputes that concluded with compensation given to plaintiffs.
As this article states, I also found evidence that contests Prosecution and Punishment's assertion that indictments rarely resulted in compensation paid to prosecutors. Since much of Prosecution and Punishment's evidence about proceedings on recognizances and indictments is the letters to the court preserved in Middlesex's Sessions papers, and since most of this article is based on other types of evidence, it might be inferred that there is little evidence in these letters that indictments produced settlements between prosecutors and their defendants. It is therefore pertinent to note that some of the evidence in letters to the court of settlement of disputes that Prosecution and Punishment presents as emanating from disputes that generated recognizances unassociated with indictments actually emanates from disputes that generated indictments. As part of its evidence that justices routinely returned to Quarter Sessions recognizances emanating from disputes settled before Quarter Sessions met, Prosecution and Punishment presents (103, n. 31) a petition about a recognizance to traverse an indictment (London Metropolitan Archives [hereinafter LMA], M/SP 1707, Oct. no. 7) and a petition about the recognizance of an indicted defendant (M/SP 1720, Oct. nos. 68a, 68c). Its evidence that justices exerted pressure on those bound in recognizances to settle disputes includes (107, n. 44) a certificate about a recognizance to traverse an indictment (M/SP 1720, Oct. no. 134). Similarly, the evidence for its argument that sureties to a recognizance worked to ensure both that the principal to the recognizance appear at Sessions and that the dispute that generated the recognizance be settled (108-9) includes in n. 50 a surety's statement about an indicted defendant (M/SP 1720, Oct. no. 30) and a surety's statement about the principal in a recognizance to prosecute (M/SP 1719, July no. 5a) and in n. 54 statements from sureties bound for indicted defendants (M/SP 1720, Oct. no. 65, and M/SP 1691, Jan. no. 10).
8. Of 122 indictments for such offenses at Middlesex Quarter Sessions in January and February of 1702 and 1756, only six were brought by prosecutors compelled by recognizance to prosecute (LMA, MJ/SR 1980, 1982, 3048, 3049). It may be that magistrates were more likely to bind prosecutors by the end of the century. Four such prosecutors were bound for Middlesex's Quarter Sessions of April 1797, when at least thirty-nine such indictments were brought (MJ/SR 3611). The indictments themselves are lost, and it is likely that some of the thirty-three indictments brought at that Sessions whose charges cannot now be discovered from other sources were indictments for offenses against the person brought by prosecutors who had not been bound to prosecute. Prosecutors compelled by recognizance to prosecute were prosecuting either defendants who had been incarcerated before indictment or defendants charged with more heinous assaults, though not all such prosecutors were bound in recognizance to prosecute. King, "Punishing Assault," 53, 57 (tables 6 and 9) and n. 13, suggests that about one-third of prosecutors of indictments for assault at Essex Quarter Sessions from 1760 to 1799 were bound in recognizance to prosecute.
9. 2 & 3 Phil. & M., c. 10.
10. Depositions could not be given in evidence on indictments for misdemeanor. See Joseph Chitty, A Practical Treatise on the Criminal Law (London, 1816; reprinted New York: Garland, 1978) 1: 80-81.
11. The bills of indictment providing the data for this article are specified in the text associated with note 19 below.
12. Of 266 statements in the Quarter Sessions papers of early seventeenth-century Sussex, 225 deal with larceny. See C. B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 67, n. 2.
13. Such statements were not part of the formal legal record and so were likely to be discarded. J. S. Cockburn, Calendar of Assize Records: Home Circuit Indictments, Elizabeth I and James I, Introduction (London: Her Majesty's Stationery Office, 1985), 11, discusses the discard of statements returned to Assizes.
14. Similarly, in Kent, whose Quarter Sessions papers are more likely than those of Middlesex to contain examinations and depositions, there are only seven such documents relevant to the 122 bills of indictment for nonfelonious offenses against the person brought at the Sessions of 1708-1709, 1716-1717, 1748-1749, and 1758-1759. Indeed, since only a minority of allegations of nonfelonious offenses against the person generated these statements, it is probable that these statements reveal circumstances atypical of such indictments.
15. The publications devoted to trials at Assizes and the Old Bailey are presented in: Beattie, Crime and the Courts, 649-51; idem, "Crime and the Courts in Surrey, 1736-1753," in Crime in England, 1550-1800, ed. J. S. Cockburn (London: Methuen, 1977), 156, 166-74; J. H. Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 267-71; idem, "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 10-18.