Victorian Crime & Punishment, Courts Police and Prisons. Lesson Three. The High Courts & Civil Litigation

Transcription

1 , Courts Police and Prisons Lesson Three The High Courts & Civil Litigation In the last lesson we looked at Petty Sessions, Quarter Sessions & Assizes. This week we examine the records of the High Courts and the online records of the Old Bailey, which became the Central Criminal Court. Most of the records we shall be looking at are held at The National Archives at Kew and very few of those are available online, although some surname indexes are available to search online and the website Connected Histories will help you track down records. In the lesson we deal not only with criminal courts but, because of their importance to research, also look at civil litigation in the High Court and Chancery and matrimonial disputes. The topics we cover are: The King s Bench & Court of Common Pleas The Old Bailey or Central Criminal Court Old Bailey & Connected Histories websites The Courts of Chancery Matrimonial Disputes By the end of the lesson you should be able to Locate information about the King s Bench & Common Pleas records Search the Old Bailey and Connected History websites to isolate information on court procedure as well as search for specific court cases. Start a search in Chancery and use the TNA Discovery catalogue to find divorce records. Pharos Teaching & Tutoring Limited Page 1

2 1 The High Courts Prior to the establishment of the Supreme Court in 1875, the business of the High Courts was not dictated by the type of case but by the type and status of litigant. In other words, who you were, rather than what the case was about. After 1875, the courts were divided along functional lines; thus one court for personal actions, one for estates, and so on. So, this is the situation prior to 1875: Exchequer Courts dealt with litigation between Crown debtors (titles of land, manorial rights, mineral rights, debts & wills any area where the Crown might have a fiscal interest); Court of Common Pleas handled disputes between subjects of the Crown King s Bench handled actions between the Crown and its subjects. Although the courts were located in Westminster, the actual trials could often be heard at local assize courts under a writ of nisi prius (earlier hearing). It may help you to know that the law terms (like school terms) are named after times of the year and are: Hilary, Easter, Trinity and Michaelmas. Some records are arranged by these terms. Exchequer The key to finding a case is with the Bill Books which can act as an index to the cases. They are indexed by plaintiff in series IND 1/ which cover the period 1558 to There are many different parts to a case heard in the Exchequer courts pleadings, evidence, court decisions and opinions all of which are separately filed. The pleadings were statements made by the parties involved in the case, starting with a Bill of Complaint which set out the case against the defendant. It should state the nature of the case and name the key characters involved and these are found in the E 134 series. The online TNA catalogue Discovery can be searched by surname within this series but only up to around 1820, the more modern index has not yet been uploaded. As an example, however, if you were to be looking for information about two illegitimate daughters of the Alston family in 1810, a search of the E 134 online catalogue brings up this entry: Pharos Teaching & Tutoring Limited Page 2

3 E 134/MISC/2583 Thomas Alston, Elizabeth, his wife, Justinian Alston, and others. v. Thomas Richard Till.: Concerning Dame Catherine Davies Alston, deceased, late wife of Sir Thomas Alston, deceased, and the paternity of two of her children, known as Fanny Clarke and Kitty Clarke, supposed to be the children of Henry Sims alias Clarke.: Southampton Bills and Answers will add circumstantial detail and the Answers comprise the responses from both sides to the case and often bring to light interesting details about the life, work and situation of the parties involved. Bills and Answers from 1558 up to 1841 are in E 112, arranged by reign and by county and are NOT searchable online (yet). The reference book Tracing Your Ancestors in TNA by Amanda Bevan has a very detailed account of how to use the Exchequer Records and I recommend you read the relevant pages in section 59 if you are interested in using these records. The TNA research guide on Exchequer records can be found here: Common Pleas Pleas rolls are the formal record of the court's business they record the nature of the case and the judgment and are in CP 40 covering the period Between 1583 and 1838 they include a mix of personal causes but pleas of land were handled separately. There is no surname index but you can use the docket rolls held in CP 60 which cover the period and were compiled for the collection of fees due. This will give you references to link back to the CP 40 series. None of these are online. King s (Queen s) Bench The King s Bench (or Queen's Bench during reign of a Queen) was the name given to the highest court of common law in England & Wales, with jurisdiction over both criminal and civil cases. In addition to being the highest court in the land, it also had other functions; that of supervising lower courts and its own local area of London which included Westminster and Middlesex. In this local way it operated in the same way as the assize courts. Even though we are concerned with the Victorian period, I will refer to it as King's Bench because all the TNA research guides do as well. Court business at King s Bench was divided into two areas: Civil law referred to as Plea side. Criminal law referred to as the Crown side Since we are concerned in this course mainly with crime in Victorian England & Wales, we will not dwell long on the civil law side of the High Courts. Pharos Teaching & Tutoring Limited Page 3

4 Civil or Plea Side For King's Bench from 1837 to 1875 you need to check the Entry Books of Judgments in KB 168, arranged chronologically and listing the date, county, names of plaintiffs, defendants and attorneys. This is surname indexed by defendant, and documents include names of plaintiffs, defendants and attorneys but the index is not searchable online. The Plea Rolls are held in KB 122 for the 19th century up to Tracing Your Ancestors in the National Archives probably the most essential handbook for TNA by Amanda Bevan provides detailed descriptions of how to carry out a search using the various referencing aids at Kew but even she is cautious about success, since so little of this material has been indexed for family historians use. Criminal Cases Crown Side Do not fall into the trap of assuming that only serious or important cases were heard at King's Bench level. All levels of society had access to the justice of this High Court and cases from provincial quarter sessions or assizes were referred here. Cases range from minor assault, disorderly houses and obstructed highways to the more serious cases of rape, riot and treason. There is no easy way to find a case without the names of some of the people involved and a date. Start with a trawl through newspapers. Any important 19 th century case will have been covered and you may find the vital names and dates you need to help access the records. Once you have the name of the defendant in a criminal case and you know that the case came to court, then there are contemporary index books to Defendants London & Middlesex area in IND1/ Provincial areas in IND 1/ These index books are the original books used by the clerks and have to be called up and consulted in order to find out more. They are arranged in alphabetical order by surname and then in date order by law term. If you find an entry, then the number written to the left of the surname provides the link to the indictment file. Indictment files for London & Middlesex are in KB 10 Indictment files for Provincials are in KB 11 Indictment files whole country in KB 12 The index books ref IND 1/6685 to 6687 are for KB 12 Indictment Files and cover the period 1846 to1926. These are arranged by year, session & then case and are not available online. Pharos Teaching & Tutoring Limited Page 4

5 The case of Dudley & Stephens took place in the Michaelmas sessions of 1884, case no. 2 (see illustration below). This was only found by a manual search of the index book. Extract from IND 1/6687/2 dated 1884 for the Michaelmas sessions, case no. 2 relating to the famous murder trial of Dudley & Stephens Armed with the appropriate year, session and case number, you can return to KB12 and by browsing the online catalogue from that point, locate the reference for the original documents for that session which you can only view in person. KB 12/155 file containing with other documents the indictment documents for the murder case Regina v. Dudley & Stephens 1884 In this instance, the Michaelmas session for 1884 is in KB 12/155 so this could be ordered up at Kew and we already know that the 2 nd case file will be the one we want. The files arrive in a huge box, piled one on top of the other. This is not the end of the case, however. This famous case involved murder on the high seas and the defendants were originally tried in Devon, at the Assizes, but as the case was beyond the scope of the judges, it was referred to the High Court. The newspapers picked up on this sensational story and all the gory details were freely provided. The two main defendants, Stephens and Dudley, were found guilty and sentenced to death but received a conditional pardon from the Crown. Pharos Teaching & Tutoring Limited Page 5

6 For the period from 1844 to 1859 only, there is a modern card index to the plea rolls (KB 28) which gives the names of both prosecutors and defendants. The Plea Rolls record the outcome of the case it will not contain cases where the case was dismissed or settled out of court but finding an entry in this index is a bonus as the Plea Roll entry will give all the stages of the case thus saving tedious searches through several different sets of records. More information is likely to be found by using the rule books (KB 21) for details of the sentence and the depositions (KB 1) for illuminative detail. Depositions taken in cases between 1836 and 1886 appear in KB 6 and refer to cases that were started elsewhere but were subsequently moved to King's Bench (for example at the local quarter sessions). You should, however, still look for the depositions used in the case in KB 1 and for the details of the final sentence in KB 21. If the case is after 1859 then your best course of action is to search the Controlment files in KB 29 where the cases are listed by law term and should have a number in the left-hand margin to link with the Indictment files (see above). As you can see, this is not an easy process, especially with no proper online indices available. I should add that there is a surname indexing project underway for the KB records at TNA so do keep checking the Discovery Catalogue, just in case! EXPLORE FURTHER :There is a very detailed (and slightly bewildering) research guide on the King's Bench records at TNA click here to go direct to this leaflet. Also - a podcast from TNA on the resources available for the trial of Oscar Wilde Pharos Teaching & Tutoring Limited Page 6

7 2. The Old Bailey The Central Criminal Court was established in 1834 taking over the responsibility of the London & Middlesex sessions held at the Old Bailey. The remit was to try cases of treason, murder and serious crimes in London, Middlesex and parts of Essex, Kent and Surrey. It could also deal with crimes committed at sea, and cases from the Court of Admiralty could be transferred here. This changed in 1964 when its powers were reduced to trying cases in Greater London and with the transfer of the Assizes to Crown Courts in 1971 it was further reduced to a Crown Court sitting in London. The Central Criminal Court Act of 1856 widened the remit to hear cases from outside London when there was some concern over local prejudice or when the case needed to be heard swiftly. These powers were further extended in Once again the original records are at TNA and are not all indexed by personal name but are in date order, so you need a date to find the entry. The original records include: Depositions witnesses accounts and evidence submitted for in CRIM 1 Indictments the formal charge listing the crime. These are arranged in calendars and indexed in CRIM 5 by surname from The indictment should give the name of the accused, the offence, the date of conviction and sentence and any appeal lodged. Court Books only contain brief details of the case and not surnameindexed. If all of this sounds very hard work, then get ready to be amazed. The proceedings for the Old Bailey between 1674 and 1913 are now freely available online. These comprise the original shorthand notes and details of the trials, the originals of which are found in PCOM 1 and CRIM 10. For the full details of the case you still need to use TNA records but the Old Bailey website provides a wealth of detail to get you started and may even be enough. Pharos Teaching & Tutoring Limited Page 7

8 The Old Bailey and Connected Histories Websites Prepare now to spend some time exploring the site, doing searches for surnames you are interested in and reading some of the cases. There is a drop-down menu on the left-hand side and the search box is on the right. Before you rush off to search - DO NOW: Visit the Old Bailey site, and find and read the articles on: Trial Procedures Crimes tried at the Old Bailey See if you can find the Glossary and use it to check any definitions for the Glossary from the first lesson. There is a sister website entitled London Lives which spans the period with a wealth of background material and examples online plus a helpful guide to crime records in their database. Alas, this is slightly too early for our Victorian period but is well worth browsing for earlier and background material. Pharos Teaching & Tutoring Limited Page 8

9 About the Proceedings page : EXERCISE 1 Visit the Old Bailey Online website and find the answers to these questions: 1. Up to 1858, under what sort of conditions would a jury be kept whilst deciding the verdict for a trial? 2. What was a partial verdict? Give an example. Post your answers in the forum. The search facility on the home page allows you to choose whether to look under surname, offence, verdict or punishment. Obviously for family historians the prime field will be surname but it can be interesting using the other fields and if you know the punishment (transportation for example) then combining the two fields will save you time when you check each hit. Pharos Teaching & Tutoring Limited Page 9

10 Here is an example of a search for John Carter who was transported in late Even with such a common name as Carter, by using the three categories name, punishment and date bracket , there are only four results. EXERCISE 2: Again, visit the Old Bailey online website and, choosing one of your ancestral surnames, conduct a search for anyone of that name who was sentenced to Penal Servitude between 1855 and Note how many 'hits' you get and choose one to put into the Old Bailey thread. If you find an ancestor in this search let us all know! Connected Histories The Connected Histories website brings together in one place online resources for family history research from many websites including the Old Bailey Online, Transportation records, British Museum, British Library and the well-known British History Online. The period covered is Some of the less well-known records in the database need a subscription to view for example the John Johnson Collection of Printed Ephemera. A general search of the combined database, using specific criteria, brings up a list of results linking different records together and often providing previously unknown documentation. You can select the databases to search before you start, which is very useful although you should be careful in case you inadvertently miss a connection. Start with the research guides which provide details of the different records in the database. One useful guide is on crime and justice; listing the specific records that apply to these topics and providing vital clues on successful searches. Pharos Teaching & Tutoring Limited Page 10

11 Probably one of the easiest ways to use this website is to keep the criteria very simple and then filter the results. Being too specific can result in zero hits. But be careful to fill in the search box correctly. In order to use the website to its full capacity, you need to register and give yourself a password this is all free. Then, you can save your searches (using the side menu options) and check the other hits in other databases. Watch the 2 minute video as well as reading the research guides. EXERCISE 3 Using the Connected Histories website, search for one of your ancestral names and, depending upon the results, spend no more than 30 minutes following up the hits. Then go to the Connected Histories thread in the forum area to post a resume (brief account) of your searches. You can add comments about how you got on, and what you think of the site. Do feel free to inter-act with each other on these searches. Although this website is promoted as an amazing resource, it does not provide anything new, merely groups existing databases together in one place, which is very useful and can allow you to search many websites at one click. Pharos Teaching & Tutoring Limited Page 11

12 3. Court of Chancery Chancery heard civil cases where justice was deemed more important than the letter of the law. Types of case or cause include: disputes over inheritance, property boundaries, guardianship of children, wards of court. The volume of papers is huge and the detail breathtaking. There is also some cross-over between cases heard in the Exchequer and those in Chancery, both covering the same ground. After 1875, the Court of Chancery became the Chancery Division of the Supreme Court of Judicature. To understand Chancery, you have to understand that when a case was brought before the court, all the parties involved felt they were in the right. That was the whole point of the case, to find out exactly who is the most right or who has a just cause. Unfortunately the documents for any one case were not all filed in one bundle and are now divided between the different series. This makes it difficult to track everything for a case down. Chancery records contain the following, and the arrangement of the records reflects the type of record: Pleadings: statements made by the parties to a case. These bills, answers, replications and rejoinders are collectively known as Chancery Proceedings. Evidence: depositions (sworn examinations of persons chosen by the parties), affidavits (voluntary statements on oath) and exhibits brought into court. Decrees and orders: in the course of a suit. Chancery Masters' reports: on evidence and subjects remitted for investigation. Final decrees - and appeals against them. The plaintiff (person bringing the case) employed a lawyer to draw up a bill of complaint, addressed to the Lord Chancellor. The Bills of Complaint or Pleadings are filed in series and these are partially indexed. There is a detailed Research Guide on Chancery Proceedings after 1558, scroll down to find the section that deals with post-1714 cases. You should find that most up to 1875 are searchable by surname to a certain extent, and some will give greater detail. For a case after 1875, you need to call up the IND index books at Kew. A search in just one of the Chancery series reference codes, for example C 15, for Carter brings many results, however if you know that someone was involved in a Chancery case and you have an approximate date (say 10 years) you can try a speculative search, and with more unusual names with fewer results, you have a greater chance of coming across something totally unknown to you. Pharos Teaching & Tutoring Limited Page 12

13 Of course, this is just the start. When you find a possible case you still have to order up the original documents and view them at Kew there is no short cut to these records. When the pleadings were completed, the next stage in the process was affidavits and depositions witnesses accounts. These can be most revealing. The same Research Guide as used above contains, further down, the Town and County depositions. Both the town depositions from 1854 to 1880 and the country depositions up to 1880 are included with the Pleadings. Affidavits, and pleadings after 1880 need to be searched for manually within indexes at Kew. At the end of a case (if it were ever finished, many were settled out of court) came Decrees and Orders in Suit (verdicts) which again need to be searched at Kew using the annual index volumes in C 33. To start a surname search in Chancery in Discovery use the advanced search and filter it by the series code C. The screen shot below shows the advanced search screen with the surname Jessop and reference C. You might like to try that now on one of your own family names. Another way in to 19 th century Chancery is to try a search of newspapers and particularly the digitized London Gazette which publishes legal notices and has many notices of cases in Chancery brought for debt. You will need to have a surname and an idea of date as there will be many hits: Pharos Teaching & Tutoring Limited Page 13

14 Case Study The Tharp Family John Tharp senior made his fortune in Jamaica in the sugar trade and in the 1790s named his grandson, John Tharp jnr, as his heir. John junior was born in 1794 and it was soon apparent that his mental faculties were impaired and he suffered from epilepsy. A private tutor was engaged and the matter kept quiet. With his grandfather and then his own father dead, the young lad came under the control of his mother, Lady Susan Douglas (who had remarried) and his uncle John Tharp who was awarded custody of the estate while the child John was a minor. Under the terms of his grandfather s will, John junior would receive 1,000 pa from the age of 21 years but, if he were to leave Great Britain and travel until aged 24 years, the legacy would be increased to 3,000 pa. No doubt his grandfather hoped that travel might improve the boy s illness. The case in Chancery arises from the alleged insanity of the child John, the untimely marriage into which he claimed he was pushed and the claims by his mother and his wife for maintenance for his care from the estate. First few search results for Tharp v Tharp in TNA Discovery Pharos Teaching & Tutoring Limited Page 14

15 The petitions are numerous as are the letters written between the lawyers, the Court of Chancery and the family members. The uncle writes how dismayed he is to hear that Lady Susan is trying to arrange a marriage for the young man and was not able to see how his nephew in his current bodily infirmities (he being at the time subject to constant fits of epilepsy) could render him an object of attachment to a young lady of such superior mind and attainments as the said Miss Roberts was represented to possess. Ref R55/7/22h Tharp Collection, Cambridgeshire Archives He claimed the marriage was being arranged out of pecuniary interest for Lady Susan (the child s mother). When the first marriage was called off at the 11 th hour, Lady Susan continued negotiations for a marriage with Lady Helen Hay, daughter of the 7 th Marquess of Tweeddale, who would come with a dowry of some 12,000. John Tharp junior is reported to have commented: that he was not going to marry her as she was merely after his money. The marriage took place on 1 st June 1815 and apparently he had a severe fit that morning, had to be physically forced into the church, was 2 hours late for the ceremony and refused to say the correct words! Lady Helen and John did not have a happy relationship and after a couple of weeks the couple suddenly moved to Scotland from where John wrote to his Uncle John claiming he was being held prisoner, and that his wife was arranging a divorce. Uncle John rode to the rescue, bringing him back to England and wrote in a letter addressed to the Court of Chancery: His lunacy now dates from the date of his marriage 1 st June The intimate details revealed in the depositions provided for the case; the letters between the family members and the summaries given at various stages made horrific reading. Which party was in the right, what was the true story? It is very hard to find out. Case papers relating to the Tharp Family ref. R55/7/22 (j) Cambridgeshire Archives What we do learn is that the estate remained in Chancery care until the death of John junior in 1863; that he was sent off to a private asylum in Hertfordshire where he enjoyed hunting, playing cricket and entertaining friends; the fees for his care were astronomical; the estate was run down and Lady Helen had a string of extra-marital Pharos Teaching & Tutoring Limited Page 15

16 affairs. The list of causes brought in this case before the Court of Chancery is amazing even after the death of John, there are disputes within the surviving family about the property and inheritance. The really interesting outcome of this long and drawn-out case in Chancery is the wealth of family records it produces not just the personal documents but all the estate records and maps. Many of these are held, not at the National Archives, but in the family papers which are deposited at the local archive office. The moral of this tale, if you have a case in Chancery in your family history, check for local deposits at archive offices as well as at the National Archives. Cases can also yield detailed inventories of goods, plans of the homestead including outbuildings, detailed depositions from neighbours and tradesmen relating to the character of the various key characters involved in the case, and much other fascinating stuff. Pharos Teaching & Tutoring Limited Page 16

17 4. Matrimonial Disputes The Matrimonial Causes Act of 1857 brought in a single court to deal with divorce and related cases such as guardianship and maintenance. Prior to 1857, any couple wishing to end their marriage had to go through the church courts and apply for a private Act of Parliament which limited availability to the wealthy. For ordinary folk, a Deed of Separation might be an alternative although neither party could remarry until the original spouse had died. This meant that many couples who appear on census returns as a married couple, may not have actually married (or may have married much later) as they already had another spouse alive elsewhere. If you have been searching for a marriage in the civil registration records without success, bear this in mind. The Act was a long time going through Parliament, partly due to the fear expressed by MPs and the Lords that by changing the criteria and making divorce easier to obtain, women would be queuing up at the courts to start cases against their husbands and the fabric of society would be irreparably damaged. In the event, very few women took advantage of the change to the law between 1858 and 1900, because the law was still very restrictive on the causes for divorce, and it was still very expensive. All cases were heard in London which meant London-based lawyers had to be engaged. From 1878 poorer women could apply to the local magistrate for a separation and maintenance order if the husband had been convicted of aggravated assault and by 1886 any husband who refused or neglected to maintain his wife and family could be ordered to pay maintenance by the local courts but any women deemed 'immoral' was excluded from these amendments. It is estimated that by 1900 over 10,000 magistrates orders were being issued to women each year. Divorce only became a reality for the majority of the population in the 1920s. In 1922 ten assize towns were listed to hear divorce cases and from 1923 women were allowed to sue for divorce, citing just one cause. Most early divorce cases were reported in The Times newspaper. There are two places to search for original divorce records after 1858 the Principal Registry of the Family Division, Decree Absolute Section and The National Archives. The Principal Registry will search their records, for a (large) fee, and will provide a copy of the information the decree. You have to supply the names of the parties involved and a rough idea of the date. This route is not recommended, unless you have to find a formal decree. After 1858, case files were created for each suit and surviving files can be seen at The National Archives, with a very good online index. Records up to 1927 are well kept but thereafter become patchy with only a few sample cases being retained after The case files contain more information than the decrees. The records at TNA are in J 77 surname indexed and free to search using Discovery. If you find an entry, you have a couple of choices, you could visit Kew to get the file yourself, you could pay TNA to copy the file (although they may not copy it all for you), or you can use one of the many professional researchers to copy the file which is a common request for them. The J77 Pharos Teaching & Tutoring Limited Page 17

18 records from 1858 to 1915 are also now available via the Ancestry website if you have a subscription. They will usually include the original petition, sometimes the response of the other party and often also a copy of the marriage certificate. EXERCISE 4 Using the Discovery Online Catalogue at TNA website, check for your family surnames in the J 77 (divorce proceedings) index and see whether there are any hits. Note the number of hits (if any) and report back to us all on the forum. If you find a family divorce, and want to share it, let us know in the forum thread! CONCLUSIONS With the exception of the Old Bailey records and some of the database material on Connected Histories, there are very few digital images online or transcriptions of records for the High Courts or Chancery. Certainly you can check catalogues online and this may bring up some clues but you need to bear in mind that a detailed search through the original records is almost always required for the 19 th century. Searching and browsing TNA Discovery can take you to an appropriate file, or a handwritten index, which you can pre-order for a research visit to Kew. There are further finding aids for many court records at Kew. The Connected Histories website gives you access to several useful databases in one search and may prove to be invaluable. This is a growing database so keep an eye on new additions. Make sure before you start any search that you have as much information as possible names, places and dates and do ensure you have checked for newspaper reports to confirm the information. Acting on a hunch or a bit of family legend really is not a good way to tackle these difficult but rewarding sets of records. Pharos Teaching & Tutoring Limited Page 18

19 WEBSITES VISITED - TNA leaflet on the Court of King s Bench records. podcast from TNA on resources for the trial of Oscar Wilde Old Bailey Online website Research guides at the Connected Histories website htm - TNA leaflets on Chancery Equity Suits FURTHER READING Moore. S.T Family Feuds An Introduction to Chancery Proceedings (FFHS, 2003) Bevan A. Tracing Your Ancestors in the National Archives (TNA, 2006) sections Pharos Teaching & Tutoring Limited Page 19