Bettany
Legal records are very detailed so, if there was a criminal in the family, you could probably trace his life. Australian Rob Davey is working in a London bar after finishing college. He's discovered that some of his ancestors were transported to Australia in the 1700s and he wants to find out more.

Do you know anything about your ancestors?

Rob Davey
A little bit. I only know the family tree that my mother's done up. She discovered that we had fellow called Robert Forrester in the family who was actually a first fleeter. He was a convict that was transported from England to Australia on the first fleet in 1788. He was tried for larceny at the Old Bailey in 1783 for stealing 120 shillings.

Bettany
Which is quite a substantial amount of money, isn't it?

Rob
Yeah, definitely in those days for sure.

Bettany
So Rob wants to find out what his other relations, John Cobcroft and Richard Ridge, got up to. After all, they are his direct ancestors.

That's great actually, so you can go all the way down to you, to Robert John Davey.

Rob
Yep. Right down there at the bottom of the page.

Bettany
Like many researchers, Rob begins at the Public Record Office. In all, 163,000 people were transported to Australia, so Rob's got his work cut out. We'll catch up with him later.

The records show how juries again and again conspired to help petty criminals whom they often knew to avoid the most severe punishments. I'm off to Essex to find out how people eluded the noose in the 1600s. I know that officially you could be hanged for stealing goods worth more than a shilling, but apparently there were ways around the law. Jim Sharp knows all about these legal loop holes. He's going to introduce me to an old friend of his, a small time thief named Matthew Powell, who was operating in Essex in the 1630s.

Jim Sharpe
What we have here through this documentation, is the possibility of actually tracking his career as a chicken thief. He was a remarkable chicken thief in the period. This is the first set of evidence where he enters the criminal history record and, as you can see, there's a heading which gives the name of the person giving evidence, in this case somebody called John Garrard, the name of the examining justices, and the date when it was taken, 17th June 1636.

So here is John Garrard saying that Matthew Powell tried to sell him chickens, he was suspicious, he alerted the local constables. We then go from the depositions which are in English, very straightforward, normally very simple to read, to the court of session rolls. Now these, as we shall see, are very difficult to use.

Bettany
They're fantastic things.

Jim
They're wonderful, they look good, they look very romantic, until you actually have to get into them. Now here we had three indictments for Matthew Powell in Latin, written on parchment, above his name, that's Matthew Powell written there. You have the Latin formula which says that he was whipped. This says pose cul carnal flagilenture. It was normally done in public either at a whipping post, in the middle of Chelmsford in this case, or sometimes the offender, male or female, would be stripped to the waist, tied to a cart and paraded through the streets and whipped as they were paraded.

Bettany
Did he learn his lesson?

Jim
He certainly didn't. Two years later, in the summer of 1638, we find Powell again appearing before Quarter Session and, if you’ll just bear with me . . .

Bettany
Are they very delicate?

Jim
They're very delicate. I'm always terrified of the things breaking up as I'm using them. I mean this is 350 years old. And Powell, on this occasion, is charged with stealing a number of chickens to the value of over four shillings. What happens here is one of the common dodges of the period. Obviously, by the 1630s, for some time before that, people would not like to execute people for a few shillings theft so, in that Latin formula at the top, the court decides to re-value the chickens at six pence, so again it's created as petty theft and again he's whipped.

Bettany
And that was a way around the law that was accepted by the courts.

Jim
Very much so, yes. It's a curious sort of set up in this period that there are all sorts of anomalies that are built into the system which judges, jurors, even the people offended against, seem perfectly willing to operate. He's whipped twice, as we've seen, and he turns up again in the Quarter Session records a year later in 1639.

Bettany
So how does he wriggle out of this one?

Jim
On this occasion he is found guilty but he's allowed to escape through another one of these legal loop holes of the period called benefit of clergy.

Bettany
Now this is really bizarre. In the middle ages, simply being a priest meant you couldn't be hanged for a first offence. Instead, you'd be branded on the hand with a T for theft or an M for manslaughter. Then, if you re-offended and you were found with a brand, you would be hanged. By Matthew's time, the protection of benefit of clergy had been extended to anyone who could read or pretend to read.

Jim
We know, for example, that it was nearly always the first verse of the 51st Psalm that you had to read when claiming benefit of clergy, so you could learn it off by heart. The jailer could teach you or somebody else could teach you in jail. This begins coggan, which is an abbreviated form of cog notive which means he confessed, petit librum, he asked for the book, and then it continues to say that he read and that he was branded on the left hand.

Bettany
So do we know what happens to Matthew in the end?

Jim
He appears for the last time in history awaiting trial in Colchester Castle and in the summer of 1642, he escapes from Colchester Jail and he also escapes from the historical record.

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