Misinformation, Mulligans, and (No) Mistrials: The Trial of Stephen Arrowsmith

On December 11th, 1678, six cases at the Old Bailey resulted in guilty verdicts carrying the punishment of death. Upon his sentencing of the guilty parties, the judge made several declarations of the grief he felt at seeing the Youths forfeiting their lives to villainy and debauchery. He spoke of the nature of their crimes, and of the mercy the court had shown them. Whereat he made this statement:

“I do therefore in the name of the Court pronounce this Judgment upon you all… you shall go from hence to the place from whence you came, and from thence to the place of Execution, where you shall severally be hanged by your necks till you be dead; and Jehovah the Lord of Heaven and Earth have mercy upon your Souls.”

The six criminals destined for the Executioner were guilty of a range of offences:
Susan Banster, for stealing goods of 13 l. value…
Stephen Arrowsmith, for a Rape committed upon Elisabeth Hopkins…
Richard Bradshaw, for high Treason, in clipping the Coyn of this Kingdom.
John Leak, for stealing Cloth off of the Tenters
Edward Preston, for stealing of a Mare…
Nathaniel Russell, for the Murder of William Midgley.

While the record of Stephen Arrowsmith’s trial is not as substantial as many others on the Old Bailey site, the record does allow for several intriguing observations to be made:
1. That, as the list of guilty parties above illustrates, in 18th Century London, the systematic rape of a small child over the course of six months carried the same punishment as theft, murder, and coin debasement.
2. That while the law’s concerning rape were firmly established, the public may have been largely ignorant of exactly what those laws were.
3. That said laws were still barbaric by today’s standards.
4. That it was common practice at that time (and remains so today) for Judges to overrule a jury’s decision if the decision is unsatisfactory, or to allow the jury to deliberate further, if their initial ruling was made in ignorance of the law.
5. That prejudicial errors on the part of the court were not grounds for a mistrial in 18th Century London.

The first witness in the trial against Stephen Arrowsmith was a young girl of nine or ten who, having not been sworn in, testified that on July 7th of the previous year, she “saw in a Room, the Prisoner lying a top of the little Girl, but what they did she knew not, but the Girls Petticoats were up, nor did she cry out.” Whereupon the victim of the trial testified (also without being sworn in) that “[Arrowsmith] had had to do with her for half a year together every sunday, that she was hindred from crying the first time, by his stopping her mouth, and that he gave her money afterwards…” The two young girls were the only eye witnesses to the crime.

Several witnesses provided hearsay evidence in the trial, stating that after several circumstances, the young girl was “found shamefully abused,” and that she “had got a very foul disease by it.” They testified that after her examination, the young girl finally confessed what had transpired.
Arrowsmith then made his defence. The trial transcript on the Old Bailey site reads thus:

The Prisoner with a great many tears denied the Fact, and desired some Witnesses might be called. Among whom there was a maid that lived at the Doctors where the Girl was for Cure, who testified that the Girl upon Taxing her, why she did conceal it, said, she took Pleasure in it, and that upon Examination there were no Symptomes on the Prisoner, as the Doctor said, of any such disease as the Girl had, which was indeed the Pox; which was also attested by one Mrs. Rawlins: and the Prisoner protesting his Innocence, alledged that they offered a Composition.

The defence both denies the fact of the rape, then suggests that if it had been done, it was because the girl “took pleasure in it,” and because the parents were fine with it. Sound familiar?
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At least OJ was smart enough to wait until after his trial to say how and why he would have “hypothetically” committed his crime. However, as the judge pointed out, “her consent would not save him, for the Statute provides, that a Child under 10 years of age, should not be abused with, or without her Consent. That the First Violence whereby he stop’d her Crying, made the Rape, had it been a Woman above 10…” There are two important observation to be made of this statement: first, that Arrowsmith engaging in sexual congress with the victim would not have been a crime if she had been ten or older; second, that even if she had been over ten, the violence of stopping her from crying would have still made the sex rape.

While we may not agree with ten being the legal age of sex (may even think it is barbaric), we cannot deny that the laws of sex and sexual consent were clearly defined. However, the jury in this case did not seem to be aware of that:

One of the Jury being an Apothecary, said it was his opinion, that a Child of those years could not be Ravished. Which the Court told him was to Elude the Statute, that having provided a Punishment, had done it in vain, if there were no offence, and so he did tax the Wisdom of a whole Parliament; Which ought not to be Others of the Jury, because the Girls were not sworn, doubted of the sufficiency of their Testimony, and they had nothing but hearsay from the other Witnesses. But the Court told them, in regard such Offenders never call others to be by while they commit such actions, they could expect no other Testimony than from the Party injured, which they had, and with it of an eye Witness, both whom they forbore to Swear, because of the tenderness of their Age; but if they insisted upon it, they should be Sworn.

The jury’s initial verdict was Not Guilty, but the “Recorder, not conceiving it to be according to their Evidence, would not take from them without further deliberation,” and the judge set the jury straight on the law, and on the reason why there were only two eye witnesses, and why those witnesses had not been sworn in. And he sent them to make their decision again.

Whereupon the jury almost screwed things up again. In trials today, it is illegal for members of the jury or the defence to speak to members of the jury. This was also the case in 18th Century London. The bailiff in Arrowsmith’s case seemed to be unaware of this: “…while they were deliberating, information was given to the Court, that they had the two Children with them, which was against the Law. Whereupon the Officer appointed to keep them, was sent for, and it being sworn against him, that he had admitted them in, he was sent to Newgate…” While today, this absolute disregard for procedure would be grounds for a mistrial, the case against Arrowsmith proceeded, and the jury soon found that “Stephen Arrowsmith was guilty of the Rape.”

The trial of Stephen Arrowsmith teaches us much about the way trials were carried out in the 18th Century. We can see that the legal system was (and in some ways still is) an unrefined system; however, while the prejudicial error made by the court in allowing the children to be sequestered with the jury, as well as the jury’s ignorance of the law, might today be grounds for a mistrial, in the 18th Century, Arrowsmith’s judge allowed the case to continue, and it lead, ultimately, to the execution of a man who later confessed to his crime.

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