Men of Bad Character: the Witham Fires of the 1820s

The trial

The law specified that some types of offence could be dealt with summarily by magistrates without a jury. But others had to be tried in one of the jury courts, namely Assizes or Quarter Sessions. Assizes were held before judges, and Quarter Sessions before a bench of county magistrates. Where one of these jury courts was appropriate, the magistrate to whom the suspects were brought could commit them to gaol to await trial if he thought the evidence justified it. However, there were still several opportunities to escape trial. In seven per cent of cases in Essex in 1824 and 1829 the prosecutors dropped the action between the committal and the trial.⁹² On occasion the reason stated was cost; if there were 'social' reasons they were not made explicit.⁹³ Sometimes hearings might be postponed because of the non-availability of witnesses. Otherwise in Essex the suspects went to the next court, whether it was Assizes or Quarter Sessions, unless there was a potential penalty of death or transportation for life, in which case they waited for the Assizes. The basic number of two Assizes and four Quarter Sessions per year was sometimes added to; in 1829 for instance there were three and six respectively. In Essex in 1824 and 1829, 57 per cent of the 1,345 jury court prosecutions went to Assizes and the remainder went to Quarter Sessions.⁹⁴

Before proceeding to trial, cases were first heard by the Grand Jury, which decided whether there was a case to answer. There were 23 men on the Grand Jury. At Assizes they were 'gentlemen of the county', usually in effect magistrates, whilst at Quarter Sessions they came from the panel of summoned jurors, customarily from its wealthier ranks.⁹⁵ In 1824 and 1829 twelve per cent of the prosecutions heard by the Grand Jury were dismissed as 'not found'.⁹⁶ It met in private, so was ideally suited to be able to exercise its own brand of discretion. Four out of the eight charges brought against Edmund Potto at Witham were dismissed by the Grand Jury, perhaps an indication that the panic of the prosecutors had led them to put too much reliance on inadequate evidence.⁹⁷

If the grand jurors found a case fit to proceed, they awarded it a 'True Bill', and it proceeded to open court to be heard in public. There the Petty Jury was responsible for giving a verdict on the guilt of the suspect.⁹⁸ It was regarded as normal for this jury to act on guidance from the presiding judge or magistrates; when the jurors at Edmund Potto's trial did not do so, the judge found their behaviour 'unintelligible'.⁹⁹ But Henry Hobhouse, Permanent Secretary at the Home Office, wrote in his diary in connection with the Cato Street conspiracy in 1820, that 'in this self-sufficient age ... juries are not content to take the law from the judges'.¹⁰⁰ So in fact the petty jurors may be added to the lengthening list of people whose discretion could affect the outcome of a prosecution.

In 1824 and 1829 Essex Petty Juries gave a verdict of 'not guilty' to twenty per cent of the charges that came before them. A further nine per cent were dropped because the suspect had been convicted of other offences on the same occasion. Many of the decisions must have been somewhat hasty. The jurors normally did not leave the court room, and in 1824 and 1829 they had to consider an average of 42 cases per day at Quarter Sessions, which only lasted one day, and 21 per day at Assizes, which lasted about a week.¹⁰¹ Thus the first hearing of Edmund Potto's case at Witham was extremely unusual in taking all day and in having a jury which retired from the court room.¹⁰² Also exceptional was the challenge by Potto's counsel to the farmer jurors, who had to be replaced by tradesmen; no other challenges were found during the 1820s. The challenges for Potto were probably wise, because there are indications that farmer jurors were more severe than others, quite apart from the fact that they were likely to be particularly hostile to arson. It also seems that the compilation of jury panels and the selection of jurors by the Sheriff and the Clerk may not have been entirely random; there was a tendency for farmers to be better represented at each stage than one would anticipate.¹⁰³ Hence discretion could be influential even in jury selection.

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