58 Sometimes reprieves were indicated by the judges before leaving town; at other times, they came some days later. Thus, the London Chronicle noted that at Oxford on Sunday, March 12, the judge’s calendar was received from Chipping-Norton, which brought a reprieve for one who had been condemned the previous week for horse stealing and on Monday the 13th a ten-day respite arrived fromJustice Wilmot for a woman under the death sentence.'*^ In his assize notes, Mansfield frequently wrote “to be reprieved” or “no reprieve” after recording a guilty verdict in a capital offense.Occasionally, he added an explanation,"*^ a notation of a jury recommendation for mercy, or an observation (“a well looking Man spoke to Counsel about employing him[Defendant] for a termof years upon a conditional pardon”). 48 colonies was no longer feasible because of the Revolution. Instead of transportation for 7 or 14 years, or for life, commitment to prison ships lying in the Thames (“the hulks”) for varying terms evolved. Also, it became common to show mercy to first-time or youthful offenders by allowing themto enlist in the troops being shipped to fight in America. For details about these practices, see Beattie, J., Crime and the Courts in England 1660—1800, 1986, ch’s 8, 9, 10. The London Chronicle, March 15—18, 1766. See also the examples given by Langbein fromthe Ryder Assize Diary at Lincoln’s Inn Library, 50 LJniv. of Chicago L. Rev. at 30. “Reprieved to plead the next circuit [for] a pardon - heir a child”. Rex v. Parker, Chelmsford 3 August 1775. ■** Rex V. Kirk, Chelmsford 3 August 1775. There ought to be taken into account in deciding whether or not to recommend mercy. Often ex parte affidavits were filed with the judge after trial, asserting new facts, and the judges would sometimes credit these. For example, in his report to the Secretary of State on prisoner Mary Beeby, who was convicted of arson on her own declarations, Foster saw nothing amiss at trial, but after studying the posttrial affidavits, he wrote that “if the matter contained in such affidavits had been satisfactorily proved on the Trial, or if Credible Evidence of the like Import had been given, the Prisoner ought not to have been convicted”. Accordingly, he recommended mercy. PRO/SP 36/f. 18 (April 1775). Ryder, while Attorney General, viewed this procedure as improper. As he wrote in a long opinion on February 11, 1739, recommendingagainst granting a pardon to Colchester prisoners on the basis of affidavits frompersons who were present at the trial and could have testified, “the truth of all these Facts is much more likely to appear by an Examination and Cross Examination of the witnesses viva voce than by Affidavits. ...” PRO/SP36/f. 146b. This sense of evidentiary propriety was not customary in the process of deciding upon recommendations for mercy. As well as crediting post-trial affidavits in the prisoner’s favor, judges would sometimes recommend against mercy on the basis of reputation or rumor. In a letter accompanying his negative report on convicted forger John Woods, Foster wrote: I have Reason likewise [that he should not be an object of mercy] from some Circumstances, which are not part of my Report, because not given in Evidence at the Tryal, to believe that he practiced in this way. When he was under Examination before our Magistrates, other Bills of the same kind and drawn by the same Hand and Indorsed in the Names of People of good Credit, some torn and others Entire, were found upon him. There was likewise taken out of his Pocket a Piece of Waste Paper on which the Name Jonathan Lees, one of the pretended Indorsers of this Bill, appeared to have been several times attempted in different Characters and in a different manner of Spelling. This I am assured by some of the Gentlemen who were concerned in the Examination of him. different ideas about what properly were
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