Middlesex County Records: Volume 1, 1550-1603. Originally published by Middlesex County Record Society, London, 1886.
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I. Measures taken for the re-arrangement of the Middlesex Manuscripts, from October, 1882, to July, 1884.—On the 26th of October, 1882, the Court of Her Majesty's Justices of the Peace for the County of Middlesex, in Quarter Session assembled, appointed a Special Committee to "consider and report to the Court whether any and, if any, what better accommodation can be provided for the old Records of the County; and as to the best means of sorting them with a view to the preparation of an Index or Calendar." This Committee consisted of the following magistrates of the county,—Captain Morley (the Chairman of the Court), Sir W. H. Wyatt, Mr. B. H. Adams, Lord Alfred Churchill, the Hon. J. F. T. W. Fiennes, Mr. J. F. France, the Hon. H. L. Noel, Mr. J. F. Pownall, the late Mr. B. Sharpe, and Mr. Basil Woodd Smith.
By this Committee it was decided that the county-records lying at Westminster should be moved to Clerkenwell, so that all the ancient muniments of Middlesex should be brought into a single collection, lying at what may be termed the sessional head-quarters of the metropolitan county. Through the action of the same Committee, the multifarious writings, thus put together, have been relieved of dirt and mould, reduced as nearly as possible to chronological order, sorted, labelled, and exactly catalogued. They have been recovered from the confusion into which the older records seem to have been falling so far back as the time of William the Third, when Mr. Harcourt, the Clerk of the Peace for the County, removed them "to his country house in Holborne," and there kept them for a considerable period, in curious disregard of peremptory orders by the Court for their restoration to the Sessions House.
The task of recovering the two collections from confusion, and making them into one well-digested, accurately labelled, and exactly catalogued body of sessional muniments was executed by Mr. A. T. Watson, one of the very few masters of his particular craft in the whole country, to whom so great and important a piece of work could have been safely entrusted. That the Middlesex magistrates put no exces sive confidence in Mr. Watson's ability to do what they required to be done appears from the present state of the manuscripts. Whilst this perfect craftsman was at work on the records, the county-architect made the new Muniment Room at the Clerkenwell Sessions House, which should be visited by persons who wish to know what such a chamber ought to be, in respect to dimensions, light, temperature, ventilation and furniture.
When it is said that the Middlesex Manuscripts, now resting in this room under all the conditions most favourable for their safety and for the maintenance of their present orderliness, comprise 10,118 volumes, and 4,916 rolls or bundles (containing, at a rough but moderate computation, 500,000 documents), it is needless to add that all this work was not accomplished in a few weeks. It took all the longer, because Mr. Watson could work on the records only in time before or after his daily hours of labour at the Record Office. The work, however, went on so regularly and steadily under the Committee's sympathetic and vigilant surveillance, that on the 24th July, 1884, the Honorary Secretary of the Committee could inform his Fellow-Justices of the Peace, in Quarter Session assembled, that the archives of the county were in perfect order.
II. Middlesex County Record Society.—This good work having been accomplished, it appeared to the magistrates who had been members of the late Records Committee, ana to several of the Justices of the Peace, who without being members of the committee had watched its labours with interest and approval, that steps should be taken to exhibit in a series of printed calendars the purport and chief particulars of the more noteworthy manuscripts of the collection, on whose restoration and re-arrangement so much labour had been expended. The immediate result of this sentiment was the institution of the Middlesex County Record Society, whose aims and general scheme of action are set forth in a prospectus at the opening of this volume. Till the records shall have been examined more thoroughly in all their periods, it will be impossible to form a precise estimate of the time and the number of volumes requisite for the perfect editorial exhibition of all their matters of historic value. But a general survey of the entire body of MSS., and the particular examination of the writings of certain periods, justify an opinion that the whole work may be accomplished in ten such volumes as the present, and within five years from the publication of the first of the calendars.
On this general view of the magnitude and requirements of the undertaking, the council of the Middlesex RecordSociety have determined to publish this book and another volume of the same size in the course of the present year, and, in case the subscriptions of the public should be adequate to the charges of the enterprise, to produce two such calendars yearly, till the purpose of the Society shall be achieved. The two publications, edited for the Society by the present writer, will deal with the records of the earliest of the three most important periods of the Middlesex MSS., viz., with the writings from the third year of Edward the Sixth to the end of James the First's reign. After dealing with the records of this period, the Society may perhaps edit the notable MSS. of the Restoration period, which are rich in evidences touching the Great Plague, the Great Fire of London, the political prosecutions of Charles the Second's reign, and the proceedings against Nonconformists. It may then appear well to the Society to deal with the books, sessions-files and multifarious rolls of the Jacobite period. The manipulation of the less interesting, though valuable, writings of the interlying periods might be deferred till the evidences of highest moment have received editorial attention.
III. Chief Purpose of this Introduction.—In dealing with what remains of the sessions-rolls alias rolled sessions-files, that grew upon the hands of successive Custodes Rotulorum for Middlesex in the later half of our Tudor period, I have been no less thoughtful for the needs of students, who may search this volume for matters likely to aid them in undertakings of literary research, than for the entertainment of the far larger number of persons who will, it is hoped, be moved by mere desire for diversion to glance at the pages of a calendar, that has not been produced without labour and anxious vigilance. But this preface will be written less for the advantage of the special scholars who are familiar with old official writings, than for the information of readers who have only the slightest acquaintance, or no acquaintance whatever, with the kind of literary material on which I have been operating. Its chief purpose will be accomplished, should it enable "the geneial reader" to apprehend the shape, character, texture, diction and aspect of the records, which I have tried to manipulate into entertaining literature, and also to apprehend the fashion and construction of the packets, that afford us so considerable a body of evidence respecting the religious life and lighter humours, as well as the criminal restlessness and darker passions of Shakespeare's London.
IV. Purpose of the present Volume.—From the third year of Edward the Sixth, in which the Middlesex MSS. begin, to the fifth year of James, the First, in which year the oldest book of the collection was begun, the Clerkenwell evidences of the proceedings of the Justices of the Peace for the metropolitan county are preserved in an imperfect series of more or less fragmentary sessions-files; and it is the purpose of the present volume to exhibit the purport and principal particulars of all the noteworthy documents contained in these files, from their com mencement in Edward's time to the close of Elizabeth's reign. Of these files, twenty-six came into existence in Edward's reign, sixty-eight during the regnal period of Mary Tudor, and three hundred and eighteen whilst Elizabeth wore the crown; and the several documents of these four hundred and twelve files may, in the present fragmentary state of the packets, be computed as numbering thirty thousand. With the exception of the Licensed Victuallers' Recognizances Roll temp. Ed. VI., the rolls dealt with in this work are files, that from being rolled into cylindrical packets have come to be designated respectively,—
V. Gaol Delivery Rolls.—Consisting chiefly of indictments and recognizances, but comprising documents of divers other kinds, such as precepts of Venire Facias, writs of Capias, lists of jurors, jury-panels, and sometimes writs of Supersedeas and memoranda of Proclamations, each of the uninjured gaol-delivery rolls, put together after Elizabeth's fourth regnal year, may be described as the perfect collection of the documents that were used at, or furthered the business of, the particular session of gaol-delivery named upon its wrapper. But this description would be inappropriate to the earlier gaol-delivery files, which are by no means so bulky as the gaol-delivery files of the subsequent period, and contain only a small proportion of the indictments on which culprits were arraigned at the successive assizes, to which the packets respectively pertain. For the present it is enough to observe that the comparative slightness of these earliest gaol-delivery files was less due to the lightness of their calendars, than to what may be called the clerical arrangement of the indictments. How so few of the indictments appear in the earlier gaol-delivery files, to which they may be said to pertain, is a question that will be answered by what will be said about inquest-rolls in a later section of this preface
VI. General Session of Peace Rolls.—Like the Justices of the Peace of other counties, the Justices of the Peace for Middlesex had for some years been required by 2 Henry V. c. 4, in accordance with previous ordinances, to "make their sessions four times by the year; that is to say, in the first week after the Feast of St. Michael' and in the first week after the Epiphany, and in the first 'week after the close of Easter, and in the first week after the Translation of St. Thomas the Martyr, and more often if need be," when reasons appeared why they should be exempted from this obligation and the people of the county be relieved of the inconvenience and bootless trouble of attending so many General Sessions of the Peace in each year. It was observed that, owing to the frequency of the Newgate gaol-deliveries, the metropolitan county was in less need than any other shire of General Sessions of the Peace, for the repression of crime and the correction of evil-doers. Indeed, the business of a General Session of the Peace for the county was sometimes so slight, as to make it obvious the court was held only for the avoidance of the penalty for neglecting to hold it. At the same time, as all the King's high courts sate continually in Middlesex. during the four terms of the year, and the commons of the county were bound to attend upon these courts as jurors, it was manifest that the freeholders of the shire were, in respect to a particular service, far more heavily burdened than the freeholders of other counties. Under these circumstances, for the removal of a cause of reasonable complaint, it was ordained by Statute 14 Henry VI. c. 4, "That the Justices of the Peace which now are, and all other hereafter for the time being, in the said County of Middlesex, shall be clearly discharged of the said penalty, by authority of the said Parliament from henceforth, the Court of the King's Bench being set in the said County of Middlesex. Provided always, that the said Justices of the Peace of the said County of Middlesex, for the time being, keep, observe, and execute the Court of the Sessions of the Peace, two times in the year at the least, and more often if need be, for any riot, or forcible entry made within the same County of Middlesex, and that upon the pain and forfeiture of such sums as be for that ordained by any law made before this time; to the end and intent that the said Commons and Inhabitants of the said County of Middlesex be not inforced nor compelled to appear before the Justices of the Peace of the same County for the time being, but at such time which shall seem by the discretions of the same Justices of Peace necessary and needful."
Thus exonerated from holding what are ordinarily called Quarter Sessions, provided they held a court of General Session of the Peace at least twice in the year, and such other additional sessions of the Peace as the state and affairs of the county should seem to require, the Middlesex magistrates availed themselves of the peculiar exemption, so that for a long series of years their county had no more than two courts of General Session of the Peace in each year. The General Session of Peace rolls, pertaining to sessions held in the period covered by the ensuing calendar, are numerous; it seldom occurs that a year's bundle of Elizabethan files fails to afford at least a fragment of a General Session of Peace file; in the files pertaining to the majority of Elizabeth's years, two fairly perfect files of this particular kind are preserved in each yearly bundle; but no yearly bundle contains more than two General Session of Peace files. It is also noteworthy that all the rolls of this particular kind relate to sessions that were held either in the first week after Michaelmas or in the first week after the close of Easter. Throughout the imperfect series of sessional files one comes on no single lot of documents relating to a general session held in the first week after Epiphany or in the first week after the day of St. Thomas the Martyr. From this absence of Epiphany Session files and Midsummer Session files, and this presence of Michaelmas Session and Easter Session files, one may infer without misgiving that, throughout the period covered by this book, only two General Sessions of the Peace were held in Middlesex in the course of the year, and that those two were held just after Michaelmas and Easter. And it may be assumed, though with less confidence, that this practice of the Middlesex magistrates from the middle of the sixteenth to the beginning of the seventeenth century (and to a much later time) was the mere continuation of a practice that was begun in the fourteenth year of Henry the Sixth, and persisted in from that time.
Were it not that the General Session of the Peace rolls comprise the sheriff's lists of the Bailiffs and Sub-bailiffs and the High and Petty Constables of the shire (documents never found in other files), whilst the Gaol-Delivery rolls comprise the Coroners' Inquests, Writs of Supersedeas and separate Memoranda of Proclamations &c. (documents never found in the Sessions of Peace rolls), the general account given on a previous page of the usual contents of the Gaol-Delivery rolls would serve as a general description of the rolls to which this section of the present introduction relates. Like a Gaol-Delivery file, a General Session of Peace file consists chiefly of writs of "Venire Facias," for the production of jurors, writs of "Capias," lists of jurors, jury-panels, recognizances and indictments. Of course the indictments preserved in the General Session of Peace files are for the most part, indictments for petty offences, whilst the indictments preserved in the Gaol-Delivery files are, for the most part, indictments for felonies. The General Session of Peace rolls, however, sometimes comprise indictments for the most heinous crimes. Not that such grave matters were determined by mere Justices of the Peace, who after taking such indictments and submitting them to the inquisition of the grand jury, took no further action in respect to them. On being found "true" at General Sessions of the Peace, these graver indictments were in due course transmitted by the Clerk of the Peace to the Justice Hall in the Old Bailey, where they were used for the arraignment of culprits, without being again submitted to the preliminary inquest. The same was the case with indictments taken at those Sessions of Peace that were known to Elizabethan Londoners as "Sessions of Enquiry."
VII. Special Session of Oyer and Terminer Rolls.—Consisting sometimes of a single indictment against a single individual, with a writ of "Venire Facias," a list of jurors and a jury-panel, and rarely containing more than three or four indictments against three or four persons, these particular sessional files, even when they are perfect, may be recognized at a glance by the slightness which distinguishes them from the other rolls. That so few of these rolls are found in any condition, and that so considerable a proportion of those that have come down to us are mere remnants, is no doubt chiefly referable to their original slightness, which rendered them less able than the larger packets to endure the violence, and resist the water, that wrought so much injury to the outer membranes of the stoutest and most compact of the Middlesex Sessions' rolls. That the havoc wrought amongst these especially interesting packets by moisture and hard usage is to be regretted, will be admitted by the reader who examines (vide pp. 111–113) the records of the arraignments of the Catholic priest Thomas Metham, and the Catholic gentlewomen, Margery Anderson, Elizabeth Barram, and Lady Brome, preserved in a substantial though imperfect file, whose contents may well cause the student to ask whether he has lost many no less important writings through the decay of the Oyer and Terminer rolls, of which nothing remains but an empty wrapper or a list of jurors.
VIII. Inquest Rolls.—To apprehend the nature and historic interest of these rolls, readers should liberate themselves from the general notion (which is entertained at the present time even by criminal lawyers) that the practice of submitting all the indictments dealt with at acriminal assize to the grand jury after the opening of the commission of the same assize was no less universal in former, than it is at the present, time. Three centuries since it was, at least in Middlesex, more usual for the indictments on which culprits were arraigned at a criminal assize to be submitted to the preliminary inquisition and found true, before than after the opening of the assize. And this usage, which prevailed in ancient time throughout the kingdom, was maintained in Middlesex to a time so recent, that it would be no bold figure to speak of it as yesterday.
During the particular period covered by this volume, whilst holding only two General Sessions of the Peace in the course of each year, the Middlesex magistrates, in the exercise of their power to hold as many sessions as should appear needful, used to hold in every year several sessions for the preliminary examination of the evidence against persons charged with felony, at which sessions they not only took general examinations of the prisoners, before admitting them to bailment or mainprise, in accordance with Statute 1 & 2 Philip and Mary, c. 13, and in accordance with practice anterior to that statute, but also submitted formal bills of indictment against the same persons to the inquisition of the grand jury, before exercising their discretion in respect to the bailment or mainprise of the offenders. Whether any other business was transacted at these sessions does not appear from the files; but the evidence of the files is conclusive that the chief, if not the only, purpose of these sessions (styled "Sessiones ad inquirendum" in many of the recognizances, and "Sessions of Inquiry" in the English footnotes to or endorsements of the same recognizances) was to take inquest of indictments, viz., to submit indictments to the Grand Jury, in order that they should be found True Bills or Not True Bills.
Held now and then at Westminster, and more often at the Manor of Finsbury, these Sessions of Inquiry were held most often at the Castle in St. John's Street,—the locality that has remained from Tudor time the head-quarters of Middlesex for sessional business, though in the sixteenth century, and long afterwards, it was the exception for a General Session of the Peace for Middlesex to be held anywhere but in Westminster. Sometimes these sessions for taking indictments were held of St. John's Street, whilst Judges of Assize were making a gaoldelivery at Newgate, in which case the bills found true at them were transmitted promptly to the Justice Hall in the Old Bailey. But sometimes they were held before the opening of the commission at the Justice Hall, in which case the inquisitions taken by the Grand Jury before the Justices of the Peace may be said to have been taken in anticipation of, and preparation for, the next session of gaol-delivery. It is noteworthy that, although it must have been familiar to all Elizabethan Londoners, and commonly used by them in their ordinary talk, the term "Session of Inquiry" seems to have fallen not only out of use but out of memory, before Jacob compiled his dictionary of legal terms in the eighteenth century. Had he known aught of the once familiar designation, he would not have failed to notice it.
The bills of indictment, thus taken and found true at one of these sessions, were put on a file, together with the precept of "Venire Facias," the jury-panel, and sometimes a few recognizances, and made into a roll. Sometimes the last thing to be put on the file was a parchment, setting forth the date and place of the Inquisition, together with the names of the Justices before whom, and the names of the jurors on whose oath, the inquisition was taken; the names of the jurors being followed, at the foot of the certificate, by these words: "Qui dicunt super sacramentum suum quod omnes bille huic Inquisicioni annexate sunt vere"=Who say that'all the bills annexed to this Inquisition are true. Each roll was described on its wrapper with corresponding words, beginning with "Inquisicio capta apud . . . ." The indictments for felony, taken and found at General Sessions of the Peace, were in the same manner filed and made up into a roll, before their transmission from Westminster to the Old Bailey.
Throughout Mary's reign, and also in the opening years of Elizabeth's reign, these Inquest Rolls were preserved in the form given to them, on their transmission to the Old Bailey. Instead of being refiled with the other documents of the gaol-delivery to which they pertained, the documents of each of these rolls were put away in the separate rolled packet into which they had been made at Session of Inquiry. So long as this was the Clerk of the Peace's practice, the Gaol-Delivery Rolls were necessarily light and slender things. But after Elizabeth's fourth year the searcher of the Middlesex Manuscripts comes upon no more of these Inquest Rolls; not because Sessions of Inquiry were discontinued, but because the documents of the Inquest Rolls were henceforth transferred to the file of their proper gaol-delivery roll;—a change of clerical practice that at once gave the gaol-delivery rolls a more impressive and weighty appearance.
In taking inquest of indictments for felony at Sessions of the Peace, with the purpose of transmitting them to the Assizes, the Justices of the Peace for Middlesex in the sixteenth century only took the course of Justices in other counties. But the case of Rex v. Wetherell (vide "Russell and Ryan's Crown Cases," p. 381) indicates how completely this whilom familiar practice had in 1819 passed out of general usage, though it was still maintained in Middlesex. Two bills of indictment had been found against John Wetherell, at the North Riding of Yorkshire Quarter Sessions of the Peace, for escaping, and at the same time aiding a fellow-prisoner to escape, from the Northallerton house of correction; and John Wetherell had been transmitted to York to be tried at' the Lent Assizes, 1819, for these two offences, on the two several indictments so found at quarter-sessions; when so able a Judge as Mr. Baron Wood refused to try the prisoner on the following grounds:—(1) That he had never tried an indictment found at quartersessions, unless it had been removed by certiorari in the King's Bench, and sent thence to Assizes for trial; (2) That serious inconvenience and labour would be thrown on the Commission of Gaol Delivery, if Justices of the Peace could at their discretion thus transmit prisoners to the Assizes for trial, when the same Justices were themselves competent to deal with them; and (3) That there ought to have been a new indictment preferred against John Wetherell before the grand jury of the county and found by them. In the ensuing Easter Term the Judges were of opinion that the prisoner should have been tried at the Assizes upon the indictments' found at the sessions.
It was strange that so good a lawyer made so considerable a mistake. It would have been far more strange had any other opinion been given by the Judges, sitting in Middlesex, where it was the practice of Justices of the Peace to take indictments for felony at sessions, and on their being returned into court by the Grand Jury to transmit them to the Old Bailey, up to the time of the creation of the Central Criminal Court,—a Court established under a statute (4, 5 William IV. c. 36), by whose 19th section the power of finding true bills and transmitting them to the Old Bailey was preserved to the Middlesex Quarter Sessions. Mr. Wright, the present Keeper of the Clerkenwell Sessions House—a gentleman enjoying a clear memory in his green and vigorous old age—remembers, how in his boyhood, soon after his admission to his first appointment in the Sessions House, he was sent from Clerkenwell to the Old Bailey court-house with a file of indictments that had just before been found "true bills" by the grand jurors sitting at Clerkenwell. (fn. 1)
IX. Composite Rolls.—The peculiarity of the rolled files, to which I venture to assign this designation, is that, whilst holding the documents of a single gaol-delivery, each of them preserves also the documents of a session of the peace. But, though they are Sessions of Peace Rolls no less than Gaol-Delivery Rolls, they were rated and described as gaol-delivery rolls by the successive clerks who filed their various documents and endorsed their wrappers. There is indeed an exception to this clerical practice. The rolls of Elizabeth's first year comprise a file, that is particularly declared to be at the same time a General Session of Peace roll and a Gaol-Delivery roll by its endorsement, "Generalis Sessio Pacis . . . . Sancti Michaelis, &c., &c. . . . unacum . . . . Deliberacione Gaole de Newgate . . . . 7 Oct. 1 Eliz." But all the subsequent rolls of this composite sort are declared to be Gaol-Delivery packets, no reference being made in the large lettering of their endorsements to the session-of-peace documents; and in my frequent references in the ensuing calendar to these composite packets, I have thought it right to adhere to the terms of their descriptive endorsements. When the document to which it relates is not "a broken file," each entry of the calendar ends with an indicatory reference to the particular rolled packet in which the document may be found; and a chief, though not the only, pur pose of each indicatory reference being to guide searchers to a particular collection of writings, I could not do otherwise than make it correspond with the descriptive endorsement of the file thus referred to. Indicatory reference (by the capital letters G. D. R. and a date) is therefore now and then made in the ensuing calendar to a roll, that besides being a gaol-delivery roll is a session-of-peace roll. Readers therefore must not assume hastily that every indictment, thus described as lying in a Gaol-Delivery Roll, came under the cognizance of the commissioners of a Newgate gaol-delivery, as it may have been determined by Justices of the Peace, instead of having been transmitted to the Old Bailey. In respect to the indictments for felony, and more serious misdemeanours, lying in these composite rolls, it may of course be assumed that they were Old Bailey matters. On the other hand, though the Commissioners of Oyer and Terminer and Gaol Delivery sometimes dealt with charges of petty larceny, common vagrancy, and trivial misdemeanours, the majority of the true bills for ordinary trespasses and other insignificant offences, lying in these several collections of session-of-peace unacum gaol-delivery records, may be regarded as having been dealt with from first to last by the Justices of the Peace, who were manifestly competent to proceed to judgment in respect to them.
IX. The Construction of these Sessions-Rolls.—All these various kinds of sessions-rolls are constructed in the same way; and, without being devoid of concern for the dignity of the archives committed to my editorial authority, I must admit, that it is a way which of itself justifies some of our best masters and connoisseurs of old manuscripts in speaking of sessions-rolls as sessions-bundles, and even in maintaining that "rolls" should not be used for the description of a number of documentary collections, which are wanting in prime characteristics of the particular sort of records, to which alone the word is strictly applicable. It must be conceded that the precisians are right on this point, and that persons who speak of mere rolled files as rolls are barely justified by custom in their free use of an ancient term.
Strictly speaking, the collection of separate documents, thus called a session's-roll, is nothing more than a file of miscellaneous writings done up roll-wise, i.e., done up in a fashion that gives it the outward show of a roll. A roll proper may consist of a single piece of vellum, parchment, paper, or other material, or it may be made of any number of pieces; but when it is made of more than one piece, it is necessary that the pieces should be made into one uniform volume. The membranes, strips or pieces may be put together like the leaves of a book, and secured with stitches or a single ligament, in which case the roll, on being untied, and laid upon a table, has the look of an oblong book. Or they may be stitched together "tandem-fashion," so that, on being opened and displayed at full length, the roll resembles a broad riband. The documents making up a Session's-roll are never stitched together, but are held in contiguity by a file of vellum, parchment, or hempen string, that is usually passed through the upper corner of the left-hand margin of each of the documents, so that no injury is done to the written words either by the file or by the filing needle. Sometimes, however, the file passes through the body of the documents, alike to the detriment of the writings and to the inconvenience of those who have occasion to search them. Rolls that set forth uniformly the acts and proceedings of Sessions of Peace or GaolDelivery are records to which "roll" is strictly applicable; but no such rolls appear amongst the Clerkenwell MSS. of the sixteenth century.
The documents, thus put together into the various kinds of rolled session-files, comprise recognizances, indictments (in Middlesex, only those of the indictments that were found to be "true bills"), writs of "Venire Facias" and "Capias," now and then writs of "Supersedeas," lists of good and loyal men returned to serve on juries, jury-panels, coroners' inquisitions-post-mortem for cause of death, sheriffs' returns of coroners, bailiffs, constables and other officers, lists and calendars of prisoners, memoranda and incidental writings. These documents necessarily differ in magnitude; but two-thirds of the documents of an ordinary Elizabethan session-roll are narrow parchments, measuring some twelve or fourteen inches from left to right by from one to three or four inches from the upper to the bottom edge of the material. Some of the parchments are of course larger. For instance, the sheriffs' lists of officers measure some two or three feet by two or three inches; the lengthier indictments are often as deep as they are broad; whilst the coroners' lengthier inquisitions and the calendars of prisoners are of still larger dimensions.
In filing the documents of a Newgate gaol-delivery file, the Elizabethan Clerk of the Peace, either with his own hands or with the hands of one of his clerical servants, did his work in the following manner. The first document to be filed was the stoutest and deepest of the parchments. Usually it was the calendar of the recently delivered prisoners. But sometimes choice was made of a more than usually expansive inquisition, that would prove a better wrapper than 'the calendar. Before filing this chosen parchment, the clerk put upon it a carefully written endorsement, for the sufficient outward description of the assemblage of writings, of which it would be the envelope,—an endorsement opening with "Midd': Deliberacio Gaole de Newgate," and closing with the date of the day, month, and regnal year of the particular gaoldelivery. The next things to be filed were the coroners' inquisitions for cause of death, some of which had been used in draughting indictments for murder and manslaughter, whilst others of them had sometimes been themselves submitted to the grand jury, endorsed "Billa Vera," and in other ways used as sufficient bills of indictment. The other indictments were then put on the file. The next matters to be filed were the writs of "Capias" and "Venire Facias," lists of persons returned to serve on juries, and the jury-panels. Finally taking in hand the only class of writings still remaining to be put with the aforementioned documents, the clerk filed a considerable body of recognizances, i.e., the instruments by which individuals had been bound, under pecuniary penalties, to appear at the gaol-delivery, answer charges, give evidence, produce persons in their mainprise, or in other ways further the ends of justice. The documents were not always filed precisely in this order; but in the majority of the still perfect files, the writings are preserved in this sequence.
Having put the writings (numbering from 100 to 200 parchments) on the file, the clerk arranged them so that they lay evenly, at their upper edges, folded in the broader documents backwards, so that none of them extended more than twelve or fourteen inches from the file, folded the deeper parchments upwards, and then with all the power of his hands rolled them into a firm, compact, cylindrical packet. Having done this, he brought round the file, and put it tightly three or four times round the bundle, and finally made its end fast by slipping it under the last coil of the cord. The bundle of documents now had the appearance of a roll, neatly and fully described on its wrapper. It looked like a roll, but was in fact a file of documents packed rollwise. There is no reason why a bundle of parchments thus put together by strong and masterly hands, if only it be left undisturbed in a dry chamber, should not last uninjured by time for a thousand years, or why, on being opened a thousand years after its construction, the writings should not be as legible as when they were first penned. But the muniment-rooms of olden time were seldom so dry as such depositaries should be; and human restlessness is not favourable to the conditions under which records are permitted to repose without disturbance.
Damp and necessary disturbance are chiefly accountable for the disorder and destruction of old documents; and this is especially true in respect to such packets of ancient writings as Sessions' Rolls, at whose removal from an old to a new building, or from one chamber to another room in the same building, the snapping of a single string may throw a hundred writings into confusion and litter. In the course of centuries occasions naturally arise when it is needful to move the archives of a Sessions House. On the erection of a new court-house, it is needful to transfer such documents from building to building. On the mere enlargment of an old court-house, the disturbance of its rolls is an ordinary incident of measures for structural improvement. Such occasions are fraught with peril to the ancient writings, whose removal for needful purposes is usually committed to the deficient discretion of persons, who, besides being ignorant of the value of such sources of historical evidence, are apt to imagine that things, so elastic and seemingly tough as bundles of parchments, tied up with apparently stout ligaments, do not need to be handled tenderly. Workmen, who pack new bricks with proper care for their fragility, will from sheer ignorance and simplicity toss old session-rolls about, as though no violence could break them. It is needless to say that if, besides being handled thus roughly at seasons of necessary disturbance, an accumulation of ancient manuscripts is exposed for hours at a time to heavy and drenching rainfall, and straightway crammed into a chamber of inadequate dimensions and no sufficient ventilation, it is in a fair way to pass through rottenness to dust. In former time it was the ill-fortune of the Middlesex Manuscripts to undergo several removals. They were brought together from different Sessions Houses in James the First's time, when the Middlesex magistrates entered on their long tenure of Sir Baptist Hicks's Hall. The migration from Hicks's Hall to a more ample Sessions House was another time of trouble to the manuscripts, which in later years have undergone the perils and trials of several removals. Had it not been for these successive disturbances, it is more than probable that, instead of being slender and fragmentary, the Middlesex Records from Edward VI. to Elizabeth would have remained unbroken in their series and perfect in their details.
X. Indictments.—With the exception of a few bills, preserved in the earlier General Session of Peace files, the indictments examined for the production of the present volume are drawn in Latin, with frequent interpolations of English words, for the explanation and familiar definition of the Latin immediately preceding them. But save for this use of a barbarous and more or less contracted Latin, these indictments differ in no important respect from the indictments used in criminal proceedings at the present time. Opening either with the words "Juratores pro Domina Regina presentant quod," or the words "Inquiratur pro Domina Regina si," even as Victorian indictments open with "The Jurors for our Lady the Queen present that," or "Let it be enquired for our Lady the Queen if," each Elizabethan indictment states precisely, and seldom with needless amplitude, the names and description or descriptions of the indicted person or persons, the offence or offences charged against the same person or persons, and the place, time and material circumstances of the alleged offence or offences.
It may not, however, be assumed that the old indictments in their present state exhibit nothing more than these particulars. For it was the practice of the Clerk of the Peace to put on each of the more important indictments brief minutes of the incidents and consequences of the arraignment, and also brief memoranda of other matters touching the case, some of these matters often being incidents that occurred at times considerably subsequent to the dates of the arraignments. From some of these minutes or memoranda (to be found on most, though not on all, of the indictments), one learns whether a particular culprit put himself 'Guilty' or pleaded his innocence; whether, after putting himself 'Guilty,' he pleaded his clergy; whether the plea of clerical privilege was allowed, in consideration of his ability to read a verse from the bible, or denied in consideration of his lack of learning, or because he had on a former occasion escaped the gallows by a timely exhibition of clerical address, or because there was sufficient proof of his having committed an unclergiable felony, or for any of the other reasons that occasionally debarred felonious clerks from the benefit of the plea. So also one learns whether, for one of the minor offences for which the capital sentence could not be given, a culprit was whipt, branded, fined, or put in the pillory. By other memoranda it is told in the fewest possible words of extremely contracted Latin, how an urchin, who might have been sent to the gallows for stealing a few shillings of his master's numbered money, was discharged with a warning, in consideration of his juvenility; how, on being convicted of a petty theft, a serving-girl was sentenced to no more severe punishment than the shame of doing penance in her parish church; how another girl, guilty of stealing chattels to the value of several pounds, was fortunate in having a jury capable of appraising the stolen things at eleven pence, so that instead of being hung she was dismissed with wholesome admonition; how a gentleman-highwayman came into court with the Queen's pardon of his part in a felony, that a few weeks earlier had sent his confederate in iniquity to the gallows. By these memoranda the files, that without them would be mere rolled files, become sessions-rolls, in their literary substance and essence, though not in their literary form,—i.e. coherent records of the acts and proceedings of successive sessions.
(a.) An Incident of Arraignment.—One of these numerous, diverse, and diversely written memoranda runs thus: "Po se cul ca null sus." In this note, po stands for ponit, cul for culpabilem, ca null for catalla nulla, and sus for suspendatur. Extended and punctuated, the note runs thus: "Ponit se culpabilem; catalla nulla; suspendatur,"=in English, "He puts himself 'Guilty'; no chattels (i.e. for forfeiture); let him be hung." In some cases, instead of ending with "sus," the note gives "sus per col"=suspendatur per collum=let him be hung by the neck. In other notes, instead of "sus" or "sus per col," we read "h'et jud" or "h'eat judic'"=he has judgment; or, let him have judgment. Perhaps the most noteworthy part of the memorandum is the introductory "po se cul"=he puts himself 'Guilty.' In recent time the fashion has prevailed to speak of a prisoner as pleading 'Guilty,' when he 'puts himself Guilty,' i.e. confesses the offence charged against him; though it is obvious on a moment's consideration that a mere avowal of guilt is neither a plea nor in any way of the nature of a plea. That the customary misdescription of the act, by which the culprit in sheer despair of acquittal surrenders himself to justice, is an innovation no less modern than corrupt, appears from the fact that Blackstone observes, "When a criminal is arraigned, he either stands mute or confesses the fact; which circumstances we may call incidents to the arraignment; or else he pleads to the indictment,"—in other words, puts himself 'Not Guilty,' and in doing so pleads his innocence as a reason why he should be acquitted of the crime charged against him.
(b.) The other Incident to Arraignment—"Standing Mute."—To the other and rare incident of arraignment, i.e. the offence of the criminal who, on being required to confess the indictment or plead to it (in other words to put himself 'Guilty' or plead his innocence), we are indebted for the memorandum "Ideo judicium dat' est p' Cur' scz fort et dure" (i.e. soit my en la prisone fort et dure)=Let him be put in strong and hard prison; a memorandum which demands a few explanatory words, though it seldom appears on the indictments lying at Clerkenwell. From the third year of Edward I. to a time lying between 31 Edward III. and 8 Henry IV. the criminal sentenced for inconvenient taciturnity to "prisone fort et dure" endured an imprisonment which, though stern and rigorous even to extreme cruelty, was a punishment that men of singular fortitude and unusual bodily strength could support for five or even six weeks. It was also a punishment which the sufferer could terminate by yielding to the law and answering to the charge. But in later time the "fort et dure" was a comparatively quick passage to death; it being provided (possibly, as Blackstone suggests, by considerations of mercy) that the culprit should be laid naked on his back in a dark chamber under as great a weight of iron as he could bear without immediate extinction of his life, and should remain under this mortal burden till he should die, the sustenance afforded him during his torture being three morsels of the worst bread, on alternate days, and draughts of putrid water on the days coming between these allowances of solid food. It is not surprising that malefactors seldom provoked the sentence "fort et dure"; for though, in cases of felony and petit treason, the culprit could escape corruption of blood and escheat of lands by standing mute, the hideous torture did not exempt him from forfeiture of goods and chattels.
(c.) Benefit of Clergy.—Another of the more noteworthy memoranda runs thus: "Cogn Ind ca null pet lib leg ut cler ust in man trad or." In Elizabeth's eighteenth year and all the succeeding years of her reign, this minute, instead of closing with "trad or," ends with "trad secdm stat &c.," or "juxta formam statuti &c." In extension, the note in the earlier form runs thus; "Cognoscit (or cognovit) indictamentum: catalla nulla; petit (or petiit) librum; legit ut clericus; ustus in manu traditur ordinario,"=He confesses (or confessed) the indictment; has (or had) no chattels; asks (or asked) for the book; reads (or read) like a clerk; burnt in the hand, he is delivered to the ordinary." Appearing in different degrees of contractedness, this note appears with numerous variations of the words. For instance, "Po se cul"=(he puts or put himself Guilty) is often substituted for its precise equivalent "Cogn' ind'"= (he confesses or confessed the indictment). Instead of writing "ust in man," the recorder sometimes wrote "crem in man." In the later indictments of Elizabeth's reign, he seldom used either "ust" or "crem," but with greater amplitude says of the convicted clerk "signat' cum litera T et del (or delib) secndm formam statuti &c."=he is marked with the letter T and delivered according to the form of the statute &c.
It can scarcely be needful for me to remind any reader of this page that, in the times when the privilegium clericale exempted clerks in holy orders from criminal process before secular judges, and the ability to read in a clerkly manner was accepted as sufficient proof of the reader's clerical quality, laymen capable of reading were allowed to participate in an exemption which at first had been accorded only to wearers of the clerical habit and tonsure, and that, under this extension of clerical privilege to people in no way connected with the sacerdotal order or the service of the Church, it was neither impossible nor uncommon for a rascal to persist from early manhood to old age in a career of violence and crime, without undergoing punishment in any degree proportionate to his misdeeds. But though it is needless to speak at any length of matters so universally known, it will be for the convenience of some of its general readers that this preface should touch cursorily on a few points of the ancient and long since abolished law relating to benefit of clergy and the purgation of felonious clerks.
Of the abuses arising from so curious an extension of a particular clerical privilege, some notion is afforded by the language of Henry the Seventh's brief enactment (4 Henry VII. c. 13) for their abatement, which runs thus:—
"Item, Whereas upon Trust of the Privilege of the Church, divers persons, lettered, have been the more bold to commit Murder, Rape, Robbery, Theft, and all other mischievous Deeds, because they have been continually admitted to the Benefit of the Clergy as often as they did offend in any of the Premisses; in avoiding such presumptuous Boldness, It is enacted, ordained and established by the authority of this present Parliament, That every Person, not being within Orders, which once hath been admitted to the Benefit of his Clergy, eftsoons arraigned of any such offence, be not admitted to have the Benefit of his Clergy; and that every Person so convicted of Murder, to be marked with an M on the Braun of the Left Thumb; and if he be for any other Felony, the same Person to be marked with a T in the same place of the Thumb, and those Marks to be made by the Gaoler openly in the Court before the Judge, before such Person be delivered to the Ordinary. Provided alway, if any Person at the second time of asking his Clergy, because he is within Orders, hath not then and there ready his Letters of his Orders, or a certificate of his Ordinary witnessing the same, that then the Justices, afore whom he is so arraigned, shall give him a Day by their Discretion to bring in his said Letters or Certificate; and if he fail, and bring not in at such a Day his said Letters nor Certificate, then the same Person to lose the Benefit of his Clergy, as he shall do that is without orders."
By this statute, therefore, it was ordained, together with other provisions for the limitation of the Clerical Privilege and the evils arising from it, that no layman should have benefit of his clergy on more than one occasion, and that every layman on pleading his clergy should be so marked in his person with a branding-iron that, in case he presumed to plead it a second time, the scar on the brawn of his left thumb would be a good reason for making especial inquisition into his history, though not sufficient evidence to justify an immediate and disdainful denial of his prayer. That the stigma thus put upon a criminal's hand was, however, sometimes less effectual in this respect than the law designed it to be, appears from the several cases in which an incorrigible offender pleaded his clergy for a second time at the Old Bailey, and pleaded it, moreover, in a manner which made it necessary to produce the record of his previous delivery to the bishop, and also to impanel a jury to ascertain whether or no he was the same clerk so delivered to the Church after being branded. The brand was unquestionably indelible so long as the tissues of the branded brawn were subjected to no unusual violence; but it was within the resources of surgery to replace the brand of penal shame with a broader and deeper scar, which, though suspicious, would be less than damnatory. That the Tyburn T was sometimes deleted in this way from the brawn of a rascal's thumb is the reasonable inference from the number of second applications for the benefit of scholarship.
The favour shown to the clergy, and the advantages reserved to them over the laity, by this enactment of Henry the Seventh's fourth regnal year, ceased for awhile under that monarch's son, through the operation of the seventh section of 28 Henry VIII. c. 1, which ordained "That such as be within Holy Orders shall from henceforth stand and be under the same Pains and Dangers for the Offences contained in any of the said Statutes, and be used and ordered, to all Intents and Purposes, as other Persons not being within Holy Orders;"—a provision repeated with greater amplitude and precision by the eighth section of 32 Henry VIII. c. 3, ordering "That such Persons as be or shall be within Holy Orders, which by the Laws of this Realm ought or may have their Clergy for any Felonies, and shall be admitted to the same, shall be brent in the Hand in like Manner and Form as Lay Clerks be accustomed in such cases, and shall suffer and incur afterward all such Pains, Dangers and Forfeitures, as be ordered and used for their Offences of Felony, to all Intents, Purposes and Constructions, as Lay Persons admitted to their Clergy be or ought to be ordered and used by the Laws and Statutes of this Realm."
But the favour and advantages to the clerical order, thus withdrawn by these statutes of Henry the Eighth, were restored to the clergy by the Statute 1 Edward VI. c. 12, which, together with other provisions, ordained that the benefit of peerage (equivalent to benefit of clergy) should, for a first offence, be accorded, without the humiliation of branding in the hand, to every lord of parliament and peer of the realm, having place and voice in parliament, who should be guilty of any crime clergyable to commoners, or of housebreaking, highway robbery, horse-stealing and robbing of churches, although he should be unable to read;—a concession to people of high quality that, to the Duchess of Kingston's advantage in the eighteenth century, was held to extend to peeresses.
The distinction between clergymen in sacred orders and laymen rated as clerks because they could read having been thus revived, the law touching Benefit of Clergy and the delivery of felonious clerks in respect to clergyable felonies remained for the most part in accordance with Henry the Seventh's reformatory enactment till the 18th of Elizabeth, when it was ordained by "Cap. vii.: An Act to take away Clergy from the Offenders in Rape or Burglary, and an Order for the Delivery of Clerks Convict without Purgation," that "every Person and Persons, which at any Time after the End of this present Session of Parliament shall be admitted and allowed to have the Benefit or Privilege of his or their Clergy, shall not thereupon be delivered to the Ordinary as hath been accustomed, but after such Clergy allowed, and Burning in the Hand, according to the Statute in that Behalf provided, shall forthwith be enlarged and delivered out Prison by the Justices before whom such Clergy shall be granted;" power being, however, given by the same statute to the Judge, to hold the offender yet longer in gaol— for any term not exceeding a year, in cases where immediate dismissal should seem too large a measure of leniency. Hence it is that, in Elizabeth's 18th year the words "traditur Ordinario" were replaced by "deliberate secundum statutum" or "juxta formam statuti &c." in the memorandum, to which the reader's attention has been called.
It would be wrong to assume that the culprit, who pleaded his clergy successfully, escaped without any punishment, beyond the humiliations attending his arrestment, preliminary trial by the grand jury, and arraignment. By 1 Edw. VI. c. 3 (repealed by 3, 4 Edw. VI. c. 16), felonious clerks, who obtained Benefit of Clergy with power of making purgation, were committed for an entire year as "slaves" to any person who would take them, before being allowed to purge themselves. Delivered to the bishop "absque purgatione facienda," they were enslaved for five years to masters, who had express authority to correct and govern them with stripes and chains. In times not affected by this short-lived statute, on being delivered to the bishop without power of making purgation, the felonious clerk derived from his privilegium clericale no brighter prospect than that of remaining in prison to the end of his days, unless he had influence with which to procure the sovereign's pardon; and there is no reason for thinking the discipline of a bishop's prison milder than the discipline of a secular gaol. When he was free to make his purgation at the earliest opportunity, he had to wait the bishop's pleasure for the opportunity. On coming before the bishop or the bishop's deputy, it was incumbent on him to swear he was innocent of the crime laid to his charge, "although," says Blackstone, "he had been previously convicted by his country, or perhaps by his own confession." The timidity and reserve, with which Blackstone makes the latter suggestion, at least imply a disposition to think it no affair of every-day occurrence for a culprit thus to swear himself innocent of the charge in respect to which he had shortly before declared himself 'Guilty.' Yet no student of the Clerkenwell rolls will doubt it was an incident of the commonest kind. It was rare for a prisoner to plead his clergy as a declinatory plea. In a considerable proportion of cases, the plea was made in arrest of judgment after a previous pleading of innocence, followed by trial and conviction. But in the great majority of cases, the pleading for Benefit of Clergy was made by a culprit, who had already avoided a trial, that could have had only one conclusion, by putting himself 'Guilty.'
To commit yet another perjury would not vex the conscience of a callous malefactor. But some of the persons, who to regain their liberty had in the bishop's presence to swear themselves innocent of what they knew themselves to be guilty, were no habitual criminals, but men far from utterly devoid of conscientiousness, though in a moment of weakness and urgent distress they had picked a purse, or carried a silver wine-cup off from a tavern. A few of them were men of honour and sensibility, who in days of universal duelling had drawn sword impulsively in a street-riot or a tavern brawl, and with no clear and deliberate purpose of taking life had committed manslaughter.
To put his case before a jury of clerks and laymen, it was not enough for one of these upright and God-fearing offenders to swear, that he had not done what he was acutely remorseful for having done. It was incumbent on him to produce twelve confederates, styled his compurgators, who should one and all swear solemnly that they believed his declaration of innocence to be sincere and truthful, though they one and all must have known it to be a lie. The twelve compurgators having discharged their function of falsehood on oath, there was an examination of witnesses on behalf of the prisoner. Each of these witnesses swore what he was engaged and instructed to swear for the culprit's benefit, and swore all the more thoroughly because he knew that no attempt would be made to expose the falseness of his testimony, and that no evidence might be produced against the offender. Under these circumstances, it is not surprising that the trial usually ended in the prisoner's acquittal. In a certain proportion of the trials for the purgation of ordained clerks and clerkly laymen there was no need of perjury, and in such cases no perjury was committed. But in the majority of cases, the trial was from first to last a sham trial, in which the prisoner at the bar, the compurgators, the twelve clerks and laymen on the jury one and all committed perjury, and knew themselves to have been brought together in order that they should commit it. The clerks of the jury were none the less guilty of perjury, because their verdict was in accordance with the evidence submitted to them in court. If the judge (who sometimes was the bishop himself) did not commit perjury, he was at least guilty of something more than mere connivance at perjury; for both by act and word he affected to believe the compurgators and jury, and played his part in the blasphemous farce, as though it were a sincere and honest inquisition for the discovery of the truth.
Something, no doubt, could be urged in behalf of the extension of the privilegium clericale to mere laymen, even in the time when the privilege was abused most flagrantly, as a concession that mitigated the rigor of a barbarously simple penal code. More could be said in its favour when, through the operation of Henry the Seventh's statute, it merely affected first convictions or arraignments, and gave 'another chance' to culprits whose education afforded some stronger grounds of hope for their subsequent amendment, though they were certainly not more deserving of sympathy and commiseration than absolutely unlettered and ignorant offenders. But no apology could be offered for the extravagant indecencies of the proceedings, to which Elizabeth put an end in her eighteenth year. No less to the clergy, who were most averse to secular interference in ecclesiastical affairs, than to the more discreet and sober of the laity, the enactment which abolished these impious sham-trials for the purgation of felonious clerks, must have been a welcome relief from what was scandalous to the church and hurtful to the whole community.
XI. Indictment of Ben yonson for Manslaughter.—Enough having been said of the general characteristics of the earlier of the indictments lying at the Clerkenwell Sessions House, it will be well to submit to readers a single example of one of these writings. And no specimen can better serve the purpose of its exhibition than the deeply and painfully interesting document here given, 1st, in its proper contractedness, 2ndly, in extension, and 3rdly, in English. It is the indictment on which Ben Jonson was arraigned at the Justice Hall in the Old Bailey in October 1598, for the manslaughter of Gabriel Spencer.
Middss. Juratores pro D[omi]na Regina p'n'tant qd. Beniaminus Johnson nup de London yoman Vicesimo Secundo die Septembris Anno regni D[omi]ne Elizabethe Dei gra. Anglie Franc' & Hibinie Regine fidei defensoris &c. Quadragesimo Vi & armis &ca. In et sup quendam Gabrielem Spencer in pace dei & dce d[omi]ne Regine apud Shordiche in Com' Midd. pred' in Campis ib[ide]m existen' insultum fecit Et eund'm Gabrielem cum quodam gladio de ferro et calibe vocat' a Rapiour precii iiis. quem in manu sua dextra adtunc & ib[ide]m hait. & tenuit extract' felonice ac voluntar' percussit et pupugit dans eid'm Gabrieli Spencer adtunc & ib[ide]m cu' gladio pred' in et super dexterū latus ip'ius Gabrielis unam plagam mort'lem profunditat' sex pollic' & latitud' unius pollicis de qua quidem plaga mortali idem Gabriel Spencer apud Shordiche pred' in pred[ict]o Com' Midd. in Campis pred[i]c[t]is adtunc & ib[ide]m instant' obiit Et sic Jur' pred[ict]i dicunt sup[er] Sacrm. suu' qd. prefat' Beniaminus Johnson pred[i]ct[e]m Gabrielem Spencer apud Shordiche pred' in pred[i]c[t]o Com' Midd & in Campis predict' [ ] pred[i]c[t]is felonice ac voluntar' interfecit & occidit contra pacem Dce d[omi]ne Regine &c.
Middss.—Juratores pro Domina Regina presentant quod Beniaminus Johnson nuper de London yoman Vicesimo Secundo die Septembris Anno regni Domine Elizabethe Dei gracia Anglie Francie et Hibernie Regine fidei defensoris et cetera Quadragesimo Vi et armis et cetera In et super quendam Gabrielem Spencer in pace dei et dicte domine Regine apud Shordiche in Comitatu Middlesexie predicto in Campis ibidem existentem insultum fecit Et eundem Gabrielem cum quodam gladio de ferro et calibe vocato a Rapiour precii trium solidorum quem in manu sua dextra adtunc et ibidem habuit et tenuit extractum felonice ac voluntarie percussit et pupugit dans eidem Gabrieli Spencer adtunc et ibidem cum gladio predicto in et super dexterum latus ipsius Gabrielis unam plagam mortalem profunditatis sex pollicum et latitudinis unius pollicis de qua quidem plaga mortali idem Gabriel Spencer apud Shordiche predictam in predicto Comitatu Middlesexie in Campis predictis adtunc et ibidem instanter obiit Et sic Juratores predicti dicunt super Sacramentum suum quod prefatus Beniaminus Johnson predictum Gabrielem Spencer apud Shordiche predictam in predicto Comitatu Middlesexie et in campis predictis [ ] predictis felonice ac voluntarie interfecit et occidit Contra pacem Dicte domine Regine &c.
Middlesex:—The Jurors for the Lady the Queen present that Benjamin Johnson late of London yoman on the twenty-second day of September in the fortieth year of the Lady Elizabeth by God's grace Queen of England France and Ireland, Defender of the Faith &c., made an assault with force and arms &c. against and upon a certain Gabriel Spencer, when he was in God's and the said Lady the Queen's peace, at Shordiche in the aforesaid county of Middlesex, in the fields there, and with a certain sword of iron and steel called a Rapiour, of the price of three shillings, which he then and there had in his right hand and held drawn, feloniously and wilfully struck and beat the same Gabriel, then and there with the aforesaid sword giving to the same Gabriel Spencer, in and upon the same Gabriel's right side, a mortal wound, of the depth of six inches and of the breadth of one inch, of which mortal wound the same Gabriel Spencer then and there died instantly in the aforesaid Fields at Shordiche aforesaid in the aforesaid County of Middlesex. And thus the aforesaid Jurors say upon their oath that the aforesaid Benjamin Johnson feloniously and wilfully slew and killed the aforesaid Gabriel Spencer at Shordiche aforesaid in the aforesaid County of Middlesex and in the aforesaid Fields [in the year and day] aforesaid against the Peace of the said Lady the Queen &c.—Endorsed 'True Bill.'
This remarkable document is preserved in one of the fragmentary rolls,—a roll that has lost its dated wrapper, writs of 'Venire' and 'Capias,' and Coroners' Inquisitions-post-mortem. How wet this injured roll was, when it came into my hands some three years since, appears from the peculiar wrinkles of the parchments, now that they are dry. How far it had gone on the quick road to rottenness and dust, appears from the decay of some of the writings, and the faded colour of their ink. But though no dated wrapper remains to give us a more precise date, the remnant of the mutilated file affords abundant internal evidence that the author of 'Every Man In His Humour' confessed the indictment at the Gaol Delivery held in the Old Bailey in October 1598. Though some of the parchments are lost and others are injured by exposure to damp and dirt, the indictment on which the poet was arraigned is sound, legible and perfect, save that it has lost the words "die et anno" that have been torn from the body of the record.
(e.) That, besides being thrown into prison for this affair, Jonson was indicted for manslaughter by an indictment which a Grand Jury (sitting probably at "The Castle" in St. John's Street) found a True Bill.
(g.) That he was styled "yoman" in the indictment, whereas the draughtsman, to guard against a dilatory plea, would have styled him "gentleman," had he thought him entitled to bear arms as one of the Johnstones of Annandale.
(j.) That, on being so convicted of manslaughter on his own confession, he pleaded his clergy, read his neck-verse, and was delivered in accordance with the statute 18 Eliz. c. 7, after being branded by a hot iron with the letter, known to the.London populace as the Tyburn T.
(k.) And further that, on being convicted, by his confession of manslaughter, he had chattels for forfeiture. Had he possessed no goods and chattels, "ca null" would have appeared in the memorandum over his name, at the top of the indictment. The Clerk of the Peace's silence as to chattels is sufficient evidence that there was a forfeiture of chattels.
No one of these facts was known to any one of the poet's biographers. To all of them it was known that in his early life Ben Jonson had killed a man in a duel, and had been thrown into prison for the awkward affair. By some of them it was believed, and by others it was suspected, that the unlucky combatant was an actor at the playhouse where Jonson was himself acting. But all of them thought that the duel followed quickly on the poet's return from Flanders, instead of happening in 1598, and that he suffered for the affair nothing worse than a brief imprisonment. No one of them conceived that the poet was indicted and arraigned for manslaughter. Gifford, the best of the poet's unsatisfactory historians, assumed that the poet was let out of gaol because his enemies ceased to persecute him, that is, forbore to prosecute him. The writer of Ben Jonson's Memoir in Chambers's "Cyclopædia of Literature" says roundly that the poet was released without a trial. In a technical sense this statement may be admitted to be true, but none the less is it delusive. There was no trial by a jury of twelve men, because, instead of putting himself on the country, the prisoner put himself 'Guilty,' with the usual consequences. That the duel was fought in 1598, and that Jonson's ill-starred adversary bore the name of Gabriel Spencer, are facts that came to the world some years since through the research of the late Mr. Payne Collyer; and in one of the notes to his excellent edition of Gifford's "Ben Jonson," the late Colonel Cunningham gave proper prominence to the two facts. Collyer and Cunningham, however, knew no more than the poet's biographers how it was that he escaped the gallows, which in one of his confidences to Drummond of Hawthornden he confessed himself to have "come near."
There is something grimly fantastic in the notion of so good a scholar as Ben Jonson asking for the book, in order to prove himself capable of reading his neck-verse—something grotesquely horrible in the thought that but for Benefit of Clergy so bright a genius might have been hung at Tyburn like any unlettered rascal, convicted of having stolen a horse or stabbed an enemy in the back.
One would like to believe that Jonson was marked with nothing fiercer than a lukewarm iron. If the satirists of a later period may be believed, it was not uncommon for a gaoler in the middle of the seventeenth century, from tenderness for his own interest and prudent regard for a promised fee, to mark a felon with cold steel. It would be pleasant to come upon evidence that Ben's gaoler marked him accidentally with a cold seal. The man who warned him td be careful what he said in the hearing of the spies and eaves-droppers, who were employed in Newgate to catch up the conversation of the imprisoned Catholics, certainly took humane interest in the young actor and poet, whose only crime was that he had shown spirit and address in fighting a duel. But whilst satirists are often misleading witnesses as to matters of their own time, seventeenth-century satire on the usages of the period is no evidence to the usages of the previous century. Whilst young Jonson languished in Newgate, the law for branding felons was far too new a law for even the kindest-hearted gaoler to palter in the performance of the duty it assigned him. Enacted by the Queen's grandfather, it was re-enacted by her brother for common folk, when he exempted only people of the highest quality from the shameful punishment. Only two-and-twenty years since, in a statute certainly inspired by no tenderness for criminals, Elizabeth had herself reordained that felonious clerks should be burnt in the hand. The branding was still done in the presence and under the observance of the presiding Judge. An order so recent, a sentence to be executed under such surveillance, was no order to be trifled with by so subordinate a person as the gaoler of Newgate. The painful fact must be accepted, that on leaving Newgate the young author of a play, which every lettered Englishman has perused with delight, took with him the personal stigma of former felony. It is noteworthy that the scribblers, so quick to taunt Jonson with having been a bricklayer, because in his boyhood he was apprenticed to a calling altogether suitable to the social quality of a poor clergyman's son, never allude to that awful "litera T." Did he keep it from their eyes ? Did he cut it out, or burn it out of his flesh ? Or could it still have been discovered in the old spot, when he was placed tenderly and reverentially in the coffin, that was borne in honour to Westminster Abbey?
XII. Coroners' Inquisitions-post-mortem.—The abstracts, given in the ensuing calendar, of these inquests for causes of deaths cannot fail to be regarded, alike by students and general readers, as a considerable contribution towards the social history of Tudor England, affording as they do much curious evidence respecting the ways in which our Tudor ancestors determined their personal quarrels. Hitherto it has been generally assumed that duelling was confined to persons of gentle degree; that in time of peace the sword was the peculiar appanage and distinctive ornament of gentlemen; that the commonalty, being for the most part content to settle their differences with their fists or quarterstaves, it was rare for a yeoman or mechanic to use a weapon of steel for the redress of his personal grievances. But the inquests of the Middlesex coroners put it beyond question that yeomen, tradesmen, and mechanics, throughout the period covered by the entries of this volume, exercised the right of fighting with sword and dagger almost as freely as their social betters, and that in Shakespeare's London it was a matter of common occurrence for a conflict, fought at the outset with fists, to be determined by the knife, which the worsted pugilist drew from his pocket whilst lying on the ground under the knees of his adversary. In these parchments tailors and shoemakers are seen fighting with weapons of iron and steel,—now by the light of day, now at twilight, and now in the darkness of night. Whilst tavern-haunters of every social grade thus fought with rapier and short-sword, bill and knife, the staid and law-abiding citizen seldom went abroad without a dagger, to be drawn in self-defence from a convenient pocket, should he be molested by street-rioters, or pushed from the wall by a tipsy swaggerer. In Tudor time the vindictive blow followed quickly upon the insulting word; and in moments of wrath blood was sometimes shed in the public ways, almost before the shedder of it knew he had crossed swords with a sudden assailant. Sometimes these affrays were preceded by cartel of defiance and formal invitation to the nearest fields; but almost as often they were fought in the public ways, and in the presence of a ring of idlers who hedged off the constables till one of the combatants fell to the ground, and who, on the termination of the affair, congratulated themselves on having fallen in with such congenial entertainment during a mid-day walk. In the days when an insult in Paul's Alley was followed at an interval of three or four minutes by a duel in Paul's Churchyard, gentlemen left their wine in a Strand tavern to cross swords with one another in the crowded thoroughfare, under the windows of the very room that half-an-hour since resounded with their mutual vows of everlasting friendship. In some cases, the last duel to be gossiped about at the Elizabethan ordinaries had been fought to the death in the principal parlour of a private house. Unless they were fatal, these encounters seldom came to the cognizance of the magistrates. That the affrays, to escape the vigilance of the constables, were numerous in every month of the year, may be inferred from the frequency of the affrays in which life was taken.
In the Middlesex Records one comes also upon inquests respecting deaths from misadventure, deaths done by cold-blooded murderers, and deaths resulting from the torture and despair of miserable women who destroyed the offspring of their weakness and shame. Whilst some of the deaths from misadventure (including fatal accidents at archery-practice) are curious and coloured with historic interest, some of the cases of infanticide are unspeakably doleful and harshly pathetic. The murders by poisoning are so few, that one does not hesitate to say that poisoning was an infrequent crime till the end of Elizabeth's reign; but the few cases where murderers employed ratsbane (the sulphuret of mercury) for the achievement of their felonious purpose should be not allowed to escape the reader's attention.
That a considerable proportion of these returns by coroners were used as bills of indictment appears from the fact that, besides being endorsed "Billa Vera," they exhibit the memoranda usually found on indictments for murder or manslaughter. But together with the coroner's inquisition-post-mortem a roll often contains an indictment touching the same death; the indictment appearing in most of these cases to have been drawn either for the correction of some misdescription in the earlier document, or for the amendment of the finding of the coroner's jury. In some cases, however, the indictment seems to have been drawn out of mere consideration of the Old Bailey jurors, who were likely to be perplexed and misled by the coroner's phraseology. Shorter and more direct to the point than a coroner's inquisition with verdict of murder or manslaughter, the mere bill of indictment was a more convenient and effective document at a criminal trial. On the other hand, from its larger communicativeness, a coroner's inquisition is far more interesting and serviceable than an indictment to the gleaner of minute facts for social history. Whilst the latter exhibits only the matters to be proved to the satisfaction of twelve jurors, the former is exuberant of such details as are especially attractive and useful to the social historian and the antiquary. For instance, in dealing with localities, whilst it was enough for the draughtsman of an indictment for the murder of a single individual to state the parish of the murdered person, the parish or respective parishes of the person or persons charged with doing the murder, or with being accomplices in the crime, and the parish in which the crime was done, the coroner seldom failed to mention the street or other precise locality of the parish in which the felony was perpetrated. Not seldom the coroner sets forth the precise spot of the particular street, and even gives the names of persons occupying the houses near the place, where the murder was committed. Had the coroner's inquisition for the cause of Gabriel Spencer's death been preserved to us, we should probably have learnt from it the precise hour of his duel with Ben Jonson, the occasion on which the two young actors had their first difference, and some of the very words of the altercation that stirred them to mutual hatred. The inquisition might have revealed the fons et origo of the fatal quarrel. It would perhaps have enabled us to see whether Ben Jonson was justified in saying he was at a disadvantage in the encounter, by reason of the length of Gabriel Spencer's sword. Probably it would have shown conclusively which of the two combatants provoked the quarrel, and whether the challenge was given by word of mouth or cartel.
From the following Coroner's Inquisition-post-mortem, it seems that, rather more than a year and nine months before he fell dead in Shoreditch Fields under Ben Jonson's sword, Gabriel Spencer had himself taken human life under circumstances which may dispose some readers to think it probable, that the author of "Every Man in His Humour" rendered society good service by putting an end to so hotheaded and dangerous a fellow.
Midd'ss'.—Inquisicio Indentata capta apud Hollowellstreete in parochia Sancti Leonerdi in Shordiche in comitatu Middlesexie decimo die Decembris anno regni Domine nostre Elizabethe Dei gracia Anglie Francie et Hibernie Regine fidei defensoris &c. Tricesimo Nono coram Richardo Sheppard generoso uno Coronatorum dicte Domine Regine comitatus sui Middlesexie predicti Super visum corporis Jacobi Feake ibidem jacentis mortui et interfecti Per sacramentum Johannis Bonas Roberti Braithwarde Thome Peeters Johannis Carter Alexandri Baggley Richardi Awsten Johannis Hamson Anthonii Shippe Roberti Braye Edwardi Awstall Johannis Welbelovde Caroli Coniber et Danielis Walker proborum et legalium hominum ejusdem parochie et aliarum quatuor villarum eidem parpchie proxime adjacentium Juratorum ad inquirendum qualiter quando et quomodo predictus Jacobus Feake ad mortem suam devenit Qui dicunt super sacramentum suum quod ubi quidam Gabriel Spencer nuper de London yoman et prefatus Jacobus Feake fuerunt in simul in domo mansionali cujusdam Richardi Easte apud parochiam Sancti Leonerdi in Shordiche predicta in predicto comitatu Middlsexie barbar tertio die, Decembris anno regni dicte Domine Regine tricesimo-nono supradicto inter horas quintam et sextam post meridiem ejusdem diei Ita accidit quod diversa contumeliosa et opprobriosa verba inter prefatum Jacobum Feake et Gabrielem Spencer dicta et locuta fuerunt Racione cujus prefatus Jacobus Feake habens quoddam candelabrum de cupro vocatum a candlesticke precii vid. quod in manu sua dextra tunc et ibdem habuit et tenuit ea intencione ad idem candelabrum ad prefatum Gabrielem Spencer ejiciendum Super quo predictus Gabriel habens unum gladium vocatum a Rapiour de ferro et calibe precii vs. existentem in vagina cum gladio et vagina predictis prefatum Jacobum Feake tunc et ibidem percussit et pupugit dans eidem Jacobo tunc et ibidem cum gladio existente in vagina predicta super faciem videlicet inter pupillam oculi dexteri vocatam the ball of the eye et supercilia vocata the eyebrowes penetrantem in cerebra unam plagam mortalem profunditatis sex pollicum et latitudinis duorum pollicum de qua quidem plaga mortali prefatus Jacobus Feake a predicto tertio die Decembris anno regni dicte domine Regine tricesimo-nono supradicto vsque sextum diem ejusdem mensis Decembris apud Hollowell-streete predictum in parochia Sancti Leonerdi in Shordiche predicta in dicto comitatu Middlesexie languebat et languidus vixit Quo quidem sexto die Decembris anno tricesimo-nono supradicto predictus Jacobus Feake apud Hollowellstrete predictum in parochia Sancti Leonerdi de Shordiche predicta in dicto comitatu Middlesexie de plaga mortali predicta obiit Et sic predictus Gabriel Spencer prefatum Jacobum Feake modo et forma predictis tunc et ibidem felonice interfecit et occidit contra pacem dicte domine Regine &c. Et sic idem Jacobus Feake ad mortem suam devenit, Et non aliter neque aliquo alio modo quam ut supradictum est Set que bona et catalla terras sive tenementa predictus Gabriel Spencer tempore felonie predicte sic facte et perpetrate habuit Juratores predicti penitus ignorant In cujus rei testimonium tam prefatus Coronator quam Juratores predicti huic Inquisicioni sigilla sua alternatim apposuerunt. Datum die et anno primum supradictis
Middlesex: The Inquisition indented, taken at Hollowell-street in the parish of St Leonerd in Shordiche in the county of Middlesex on the tenth day of December in the thirty-ninth year of the reign of our Lady Elizabeth, by God's grace Queen of England, France and Ireland, defender of the faith &c, before Richard Sheppard gentleman, one of the said Lady the Queen's coroners of her aforesaid county of Middlesex, On view of the body of James Feake, there lying dead and slain, By the oath of John Bonas, Robert Braithwarde, Thomas Peeters. John Carter, Alexander Baggley, Richard Awsten, John Hamson, Anthony Shippe, Robert Braye, Edward Awstall, John Welbelovde, Charles Coniber and Daniel Walker, good and lawful men of the same parish and of the four towns next adjacent to the same parish, Sworn to enquire how, at what time, and in what manner the aforesaid James Feake came to his death, Who say upon their oath that, whereas a certain Gabriel Spencer late of London yoman and the aforesaid James Feake were together in the dwelling-house of a certain Richard Easte at the parish of St. Leonerd in Shordiche aforesaid in the said county of Middlesex barber, on the third day of December in the aforesaid thirty-ninth year of the said Lady the Queen, between the fifth and sixth hours p.m. of the same day, it so happened that divers insulting and reproachful words were said and spoken between the aforesaid James Feake and Gabriel Spencer, By reason of which the aforesaid James Feake having in his hand a certain candelabrum of copper called a candlestick, worth sixpence, which he then and there had in his right hand, and held with the intention to throw it at the said Gabriel Spencer, Whereupon the aforesaid Gabriel Spencer, having a sword called a rapier of iron and steel, of the price of five shillings, being in the scabberd, with the aforesaid sword and scabberd then and there struck and beat the aforesaid James Feake, giving then and there to the same James, with the sword being in the aforesaid scabberd, a certain mortal wound, six inches deep and two inches wide, on the face, that is to say, between the pupil of the right eye, called the ball of the eye, and the eyebrows, penetrating to the brain, of which mortal wound the aforesaid James Feake languished and lived in languor at Hollowell Street aforesaid, in the aforesaid parish of St. Leonerd of Shordich, in the said county of Middlesex, from the aforesaid third day of December in the aforesaid thirty-ninth year of the said Lady the Queen's reign, until the sixth day of the same month of December, On which sixth day of December in the above-said thirty-ninth year the aforesaid James Feake died of the aforesaid mortal wound at Hollowell Street aforesaid, in the aforesaid parish of St. Leonerd of Shordiche, in the aforesaid county of Middlesex, And thus the aforesaid Gabriel Spencer then and there, against the peace of the said Lady the Queen &c., killed and slew the aforesaid James Feake in the manner and way aforesaid, And thus, and no otherwise nor in any other manner than is abovesaid, the same James Feake came to his death. But what goods and chattels lands or tenements the aforesaid Gabriel Spencer had at the time of the aforesaid felony thus done and perpetrated the aforesaid Jurors are wholly ignorant. In testimony of which thing the aforesaid Coroner and the aforesaid Jurors have alternately put their seals to this Inquisition. Dated in the day and year first abovesaid.
XIII. Recognizances.—As nearly every affair, that gave occasion for draughting a bill of indictment, was an occasion for binding several persons to appear at some ensuing Sessions of Peace or Sessions of Gaol-Delivery, to answer to charges or give evidence, and as it was needful in the ordinary way of justiciary business, to put numerous persons under pecuniary bond, in respect to matters that afforded no occasion for framing a bill of indictment, it is needless to say that the recognizances, lying at the Clerkenwell Sessions House, are far more numerous than all the other writings with which they are preserved.
In proportion as they are more numerous, the recognizances are also less interesting than the other documents. From nine out of every ten recognizances, all that can be learnt is that nine humble and obscure persons, whose names are in no way associated with any matter of present interest, were ordered under more or less heavy penalties to keep the peace towards their neighbours, to desist from committing some commonplace nuisance, or to appear at some future Gaol-Delivery or Session of Peace, for the purpose of answering to some accusation, or of giving evidence tending to prove some quite obscure person guilty of some utterly unhistoric offence. The majority of the persons, thus bound over by recognizances of no historic moment, were mechanics who had beaten their wives or their neighbours' wives, labourers who had come to blows over too many pots of heady ale, artisans guilty of jeering at the constables, young tailors or other young craftsmen guilty of presuming to set up in business on their own account, instead of working as journeymen for masters entitled to their services, apprentices with heads broken in a recent riot, women at war with women of their street or yard, petty tradesmen accused of paltry frauds, householders charged with obstructing a common sewer, or persons suspected of victualling without a licence.
Under no circumstances could the recognizances of such people and their sureties be diverting or usefully instructive: but these writings are especially barren and unprofitable, on account of their silence respecting the very particulars about which one would wish them to be most communicative. It is often left to the reader of a recognizance to imagine the cause for draughting the document. When a recognizance says anything of the delinquent's offence, the meagre intelligence is given by such expressions as "ad tenendam pacem" and "pro bono gestu," no hint being given as to how the peace was broken, or what misconduct caused the requirement for better behaviour. In Elizabeth's time, when it was the practice of some of the Justices to illustrate their Latin recognizances with brief foot-notes or endorsements in the mother tongue, touching the why and wherefore of the documents, these particular writings become less wearisome to the searcher, as he comes more frequently on a scrap of acceptable, and even important information.
In dealing with these documents, the majority of which are as unentertaining and historically worthless as several thousands of ancient writings can well be, I persisted in my resolution to examine every one of them. Had I been less persistent in a labour, not altogether fruitless of good though inexpressibly tedious, I might have missed the important recognizance, taken on 19 Dec, 20 Eliz., which revealed the important fact, that, instead of kneeling before his sovereign for the first time in the year 1582, as his successive biographers have represented, Walter Raleigh was a bright feature of Elizabeth's court as early as 1577,—a fact which, on its being communicated promptly to Professor Gosse, enabled that fine and subtle critic to perfect one of the most remarkable demonstrations of recent literary research.
XIV. Choice of Documents.—It will be for the reader's satisfaction that I should indicate the various considerations that have determined my choice of documents for especial notice in the ensuing calendar. Throughout my labours I have been controlled by the opinion that I ought to call attention to those writings, which afford particulars, however minute, of new or otherwise peculiar information, likely to be in any way or degree serviceable to historians, biographers, students in any department of literary research, or artists in form and colour. I have therefore been careful to mention every indictment that exhibits the name of a historic personage, refers in any way to any movement or state of affairs fairly to be designated "historic," yields evidence touching an obsolete usage, or enlarges an ordinary reader's knowledge of the pursuits, serious interests, pleasures, troubles, costume, personal ornaments, domestic furniture, social conditions and moral characteristics of our ancestors during the later half of the Tudor period. To exhibit a peculiar spelling of a familiar name, the ancient designation of an article of dress, a fact for the historian of prices, or an obsolete place-name likely to be valuable to the topographers of Old London, I have given the substance of indictments that are noteworthy only because they afford such particulars. Dealing with the recognizances in the same way, I have described many a bond whose only claim to consideration is that it mentions a peculiar industry, or revives the memory of an extinct fashion or discarded practice. To afford abundant evidence of a matter of considerable moment, I have not hesitated to describe several documents of the same purport. But having given the abundant evidence, I have forborne to render it superabundant by needless examples. For instance, having in my notes touching the larcenies and robberies, done during the first thirty of the years covered by the ensuing calendar, given a sufficiency of information respecting the prices of various necessaries and luxuries of life, the values of animals and ornaments, I take no notice in my later pages of indictments that under any circumstances would be valuable only for their information touching the same matters. On the other hand, when it has appeared needful to display every scrap of testimony concerning a state of things, I have not forborne to do so, from a fear of provoking charges of prolixity and of a delight in vain repetitions. To demonstrate the frequency of duels in the highways and outskirts of Elizabethan London, and to show how largely the pleasure of living in the town was qualified by inconveniences arising from the prevalent violence of manners, I have noticed all the coroners' inquisitions, resulting in verdicts of murder and homicide, and all the indictments for deeds of fatal violence of which no mention is made in what remains to us of the coroners' inquisitions. To show the unhealthiness of the principal gaol of Tudor London, I have given the particulars of all the inquests for the cause of death taken within Newgate. In the calendar notice is taken of all the remaining true bills for poisoning and witchcraft, whether they resulted in acquittal or a verdict of 'Guilty'; and all the indictments for unnatural offences, rape, and carnal abuse of children, that were either confessed by the culprits, or proved against them to the satisfaction of juries. These indictments for peculiarly repulsive offences are far from numerous; but in drawing inferences from their fewness, the reader should steadily keep in mind the fragmentary state of the earlier Middlesex records.
(a.) Thefts of Church Ornaments and Goods, Temp. Phil. and Mary. —For examples of indictments that, without being indictments for political offences, relate to states of affairs that may be designated historic, readers may be referred to pp. 23, 24 and 30 of the ensuing calendar, where particulars are given of three curious thefts done in Middlesex, of church-goods, belonging to the parishioners of parishes in other counties. From the first-mentioned of these indictments, it appears that, at St. Giles's-in-the-Fields co. Midd., on 14 July, 1 & 3 Phil. and Mary, Ethelbert Warner, late of Pitstorne co. Bucks, tailor stole a silver-gilt chalice worth fifty-two shillings, a red velvet vestment worth forty shillings, a blue satin vestment worth twenty-six shillings and eightpence, and two linen albes, of the goods and chattels of the parishioners of Pitstorne, whilst the things so stolen were in the custody of Henry Walker and William Pyng guardians of the goods and ornaments of the parish-church of Pitstorne.—From another of these indictments, it appears that, at High Holborn co. Midd. on 27 August, 2 & 3 Phil. and Mary, Simon Cosyn, late of Saffron Walden co. Essex yoman, stole and carried away a red-silk cope, a linen altar-cloth, a linen albe, a linen amice, a sacring bell and a corporas-cloth, of the goods and chattels of the parishioners of the parish-church of Arkesden co. Essex, whilst the things so stolen were in the custody of George Louve and William Taillour, guardians of the goods and ornaments of the said church.—From the latest of the three indictments, it appears that, at South Mymes co. Midd. on 4 Feb., 3 & 4 Phil. and Mary, two yeomen of London stole goods and chattels worth over sixteen pounds, of the goods and chattels of the parishioners of Hadenham co. Bucks, whilst the articles were in the wardens of the church of the said Buckinghamshire parish.—Till he has recalled how church goods and ornaments were gathered together and sold in Edward the Sixth's time, and how the action of Edward's Commissioners for so dealing with articles needful for the celebration of Catholic rites put parishioners, in the ensuing reign, under the necessity of buying new chalices, capes, amices, albes and corporas-cloths, the reader will fail to apprehend how it came to pass, that the goods and ornaments of Essex and Buckinghamshire parishes were stolen in Middlesex from the churchwardens of those parishes. The appearance of three such indictments in the fragmentary sessions-rolls of Mary Tudor's time warrants a confident opinion that such thefts were common in Middlesex between Edward's death and Elizabeth's accession; and that, even when they were not plundered in Middlesex, rural churchwardens in Mary's time were often relieved on the homeward journey of the cups and vestments which they had bought in London a few days earlier with moneys levied in their respective parishes.
(b.) Egyptians, Rogues and Vagabonds.—In the numerous True Bills against gypsies and other vagrant rogues, we have another class of indictments, relating to a state of social affairs that may be called historic. To understand the proceedings which sent men and women to the gallows for nothing more heinous than the offence of associating with gypsies, readers must remember that, besides re-enacting the statute against gypsies of 1 & 2 Philip and Mary, the enactment of 5 Elizabeth, c. 20, "for further punishment of vagabonds calling themselves Egyptians," made it a capital felony without benefit of clergy for any person, in England or Wales, to assume the dress and speech of the vagabonds calling themselves Egyptians, and for the space of one month, either at one time or several times, to associate with and live in the company of the same vagabonds.
Whilst things, strange to English people of the nineteenth century, were done in Elizabeth's time by the operation of the laws against gypsies, even stranger things were done by the laws against vagrants over fourteen years of age. By 14 Elizabeth, c. 5, it was adjudged that every vagrant over fourteen years of age, male or female, should on the conviction of so odious an offence be grievously whipt, and burned through the gristle of the right ear with a hot iron of the compass of an inch, unless some credible person should take him into service for an entire year. Though the branding is sometimes described in the memoranda of indictments as branding on the ear, the hot iron used in marking vagrants was for that purpose sent clean through the gristle of the ear. By the draughtsmen of statutes, it was sometimes called "boring the ear." Sometimes the vagrant, who escaped grievous flogging and this thorough branding by a credible person's timely offer to take him into service for a year, had the good fortune to fall into the hands of an humane master. But more often he was apprenticed to a harsh tyrant. Anyhow, he was the slave of the person to whose government he was committed. By 1 Edw. VI. c. 3, he was styled the "slave" of the master to whom he was committed. If the vagrant were eighteen years old, it was ordained that, on being convicted of relapsing into vagabondage he should suffer death, unless some credible person took him into service for two years. On his third conviction of vagabondage, the sturdy rogue had no escape from the gallows. The law dealt evenly with male and female vagrants. Girls and women, no less than boys and men, were treated for vagrancy with the whip, the branding-iron and the rope.
This being so, Joan Wynstone, Elizabeth Hopkyns and Margaret Archer (vide pp. 101, 2) were on 6 February, 18 Eliz., convicted of vagrancy and sentenced to be whipt and burnt with a hot iron of an inch in circuit through the gristle of the right ear. Whetner Joan Wynstone was married at the time of this first conviction does not appear; but Joan Wynstone certainly was a married woman on the second day of the following August (2 Aug., 18 Eliz.), when she, Margaret Archer and Elizabeth Hopkyns were placed in the dock of the Justice Hall of the Old Bailey, to answer to an indictment, charging them with having relapsed into vagabondage and been vagrant on the 26th day of last July at Clerkenwell co. Midd., and at other places of the same county. How the three women fared on this occasion appears from three several memoranda on the bill of indictment. Elizabeth Hopkins pleaded 'Not Guilty' and did not retract; the inference from the note, which says no more, being that she was acquitted. Found 'Guilty,' Margaret Archer and Joan Wynstone would have been sent to the gallows, had they not been rescued by the timely appearance of two credible persons. Margaret Archer was committed to the service and keeping of John Luck of Wickeham co. Bucks, yeoman, for the space of two years; the said John Luck being bound in his own recognizance, in the sum of ten pounds, to produce the same Margaret at Session of Peace on the expiration of the term, or else to produce sufficient proof of her death. In like manner, Joan Wynstone was bound apprentice for two years to another credible person, who bound himself in a penalty of ten pounds to produce her at Session of the Peace at the end of the two years, or to produce sufficient evidence of her death. To whom was Joan Wynstone thus committed for salutary discipline ? To her own husband. "Ac eciam venit," runs the memorandum of her consignment to a credible person, "Thomas Wynstone de Clarkenwell in com. Midd. laborer et retinuit in servicio suo Johannam Winstone uxorem ejus pro duobus annis integris proxime sequentibus et recognovit se debere domine Regine x li. legalis monete Anglie sub consimili conditione," = And Thomas Wynstone of Clarkenwell labourer came and retained in his service Joan Winstone his wife for the two entire years next following, and acknowledged that he owed the Queen ten pounds of the lawful money of England under like condition."
This took place on or about 2 Aug. 18 Eliz. What followed? On the 3rd of the next following October, when she had been in his service just two calendar months, Margaret Archer withdrew from John Luck's government without his permission; and on the same day, Joan Wynstone withdrew without his permission from her husband's control. Both women deserted service. What they did with themselves on deserting the service of their respective masters does not appear; but it may be assumed that they returned to vagrancy and lived as vagrants till the following summer. On or about 30 Aug., 19 Eliz., they were again in the dock of the Old Bailey court-house. The indictment against them was for desertion of their lawful masters. Putting themselves 'Guilty,' both women pleaded pregnancy. Found 'Pregnant' by a jury of matrons, Margaret Archer was remanded till she should be delivered of her child. Found 'Not Pregnant' by a jury of matrons, Joan Wynstone was forthwith sentenced to be hung. The same sentence, that relieved him of an unruly apprentice, relieved Thomas Wynstone of a troublesome wife. What became of Margaret Archer is not stated; but in the ordinary course of things she wonld be hung after giving birth to her child.
(c.) Money, Plate, and Jewellery.—Of the various offences perpetrated in Elizabethan Middlesex, none were so frequent as thefts of ordinary clothing, common domestic furniture and small sums of money, viz. thefts of such things as could be stolen most readily and with the least risk of detection by persons belonging to the most numerous and necessitous class of the community. Next to the indictments for such ordinary thefts, the indictments for horse-stealing and cattle-stealing were most frequent. Whilst horses were continually stolen in every quarter of London, horses were ridden to town by thieves who had seized them in Middlesex paddocks or the grass lands of adjacent counties. It was also seldom for a gaol-delivery to be made and concluded without sentence of death being passed on several stealers of oxen and cows, sheep and swine.
These two classes of indictments excepted, perhaps no indictments were more numerous than those for the stealing of plate and considerable sums of money; some of these thefts being done with enough violence to put them in the category of robberies, whilst a smaller proportion of them were burglarious felonies. It will not escape the reader, that the amount of coined gold, sometimes stolen in the public ways of Tudor Middlesex far exceeded the sums of money ordinarily taken by pickpockets in these days of universal banking, when there is no need for persons to carry purses heavily charged with precious metal. In respect to the value of the stolen goods, and the daring exhibited in taking them from their rightful owners or custodians, some of the greatest robberies of precious stones and jewellery will endure comparison with the ordinary jewel-robberies of Victorian England, allowance being made for the difference of the values of money, and for the comparative poverty of the fairly affluent people of the earlier period.
The plate-robberies indicate how large an amount of silver was possessed by Elizabethan Londoners in the form of drinking-vessels. Whilst private gentlemen of no great social distinction sometimes displayed on their sideboards a greater weight of silver utensils than would be found now-a-days in the houses of moderately prosperous gentle people, yeomen of the richer sort drank their ale from silver. That silver cups were so often carried off from taverns, and that a silver drinking-vessel of a particular fashion was familiarly designated "a tavern-cup," are items of the large body of testimony to the redundance of plate in Middlesex three centuries since. Whilst a large proportion of this plate was parcel-gilt or wholly gilt, some of it was double-gilt.
The indictments for coining and uttering false money are not numerous, but the few to be found in the imperfect series of fragmentary files are so interesting that I have been careful to call attention to each of them. That "tester," the slang term for a sixpenny-piece, comes to us from Tudor time, when "testorne" was the familiar name for pieces of that value, is worthy of remark. But, perhaps, the indictments touching money yield nothing more likely to occasion surprise, than their testimony that the piece of gold, which has long been known as a half-sovereign, and known by no other name, used to be generally, if not correctly, styled "a sovereign" in Elizabethan time,— a fact all the more curious, because one of the indictments of Edward the Sixth's regnal period speaks of a certain gold ten-shilling piece as a "di-sovereign," and some of the Elizabethan indictments apply the term sovereign to a gold piece worth twenty shillings.
In the sixth year of Edward the Sixth (vide pp. 8 and 9), Alice Adams was indicted for stealing, together with other things, a piece of gold called "a di-sovereign" worth ten shillings, and a piece of gold called "an old aungell" worth ten shillings. Though there is no need to infer that it was a word of ordinary parlance, it cannot be questioned that the clerk, who draughted this indictment, used "di-sovereign" in the sense of half-sovereign. But in the third year of Elizabeth, Richard Tylman alias Dericke and John Dowdald were indicted for entering Henry Walsted's house burglariously and stealing therefrom (vide p. 37) ten pieces of gold called soueraynes worth five pounds [decem pecias auri voc' soueraynes ad valenciam quinque librarum]. The Elizbethan indictments for stealing sovereigns worth ten shillings each are too numerous to leave any room for doubt that, in the reign of the virgin-queen, "sovereign" was regarded as a term applicable to a gold ten-shilling piece. Upon the whole, I was disposed to think the Elizabethans regarded the term as applicable to a gold ten-shilling piece and a gold twenty-shilling bearing the image of the Queen. And I remained in this disposition, until I came upon an indictment of James the First's second year, charging Peter Balishewe, late of London alien, with stealing, on the 18th of Dec. of that year, a piece of coined gold worth twenty shillings, called "an Elizabeth double soueraigne."
(d.) Clergymen, and Gentlemen of The Laity.—Careful to notice every indictment and recognizance, making mention of an historic personage, I have also been careful to omit from my calendar no indictment, resulting in the conviction of a clergyman or lay-gentleman either of felony or misdemeanour. And I have been thus careful to record the offences of gentlemen and of clerks in holy orders, not because I delight in gathering evidence to the discredit of persons belonging to what are sometimes called the higher and privileged classes, but because the offences of persons of education and gentility are more indicative of the general state of social morality, than the offences committed by people of inferior quality, training and circumstances.
Even when it is borne in mind, as it ever should be by the peruser of this work, that though numerous and considerable the Middlesex records of the Tudor period are the mere remains of a far larger collection, most readers will account it to the credit of the Elizabethan clergy, that so weighty a mass of indictments should afford so few cases of clerical delinquency. Now and again the searcher of these criminal records comes on a clergyman of the Anglican Church, indicted for trespass, violent assault, fraud, theft, or graver felony. But these clerical offenders are so few, as to put it beyond doubt that the Anglican clergy of Tudor Middlesex were at least seldom deficient in social orderliness and decorum.
As much cannot be said for the gentlemen of the laity; though it would be unjust to the class they discredited to forget, even for an instant, that the Tudor gentlemen, who died at Tyburn for their country's good, were the comparatively few black sheep of a numerous and chivalric body of Englishmen, and had for the most part fallen from the society and cognizance of their equals by birth, long before the hangman gave them quick and fit delivery. It does not appear from the Middlesex archives, that these black sheep of gentle birth and shameful life bore a larger proportion to the several thousands of the Elizabethan gentry, than the corresponding scoundrels of our present social system bear to the tens of thousands of Victorian gentlemen. The gentle rascals of Elizabethan England no doubt perpetrated offences, of which the gentle scoundrels of the present time are seldom guilty. On the other hand, the well-born and welltaught scoundrels of the nineteenth century do evil things that gentle rascals of the sixteenth century never thought of doing.
It is interesting to observe what misdemeanours and felonies were committed by the gentle scoundrels of Shakespeare's England. They stole horses, oxen and sheep. Turning highwaymen, they stript peaceful travellers of their goods, clothing and money, and, when the case demanded especially vigorous action, murdered them in the public ways. For gain or vengeance they would sometimes stab their enemies in the back. It was even possible for an Elizabethan gentleman to steal by night into his father's bedroom, and surprising him in his sleep, then and there strangle him to death. Burglaries were often committed by the gentlemen of England in olden time. But these were the grander and more heroic villanies of the black sheep of the gentle grade, who, committing these and similar atrocities once in a while, condescended to replenish their purses by meaner violations of the law. It was possible in Elizabethan England for a man to be a cutpurse and pickpocket, to be a poacher and cardsharper, to carry off a silver goblet from a tavern-parlour or a goldsmith's counter, to sneak into a lady's house and sneak out of it with her silver spoons and finest lace, to keep a bowling-alley or a brothel, and yet to be a person who could have made a dilatory plea on the ground of misdescription, had he been described in an indictment as anything less honourable than an English gentleman.
(e.) Catholics and their Recusancy.—Knowing the need and the demand for fuller and more precise information respecting the condition of English Catholics, living in England under Elizabeth and James the First, I have noticed every indictment of a Catholic priest for celebrating masses or tarrying unlawfully or doing any forbidden thing within her Highness's realm, against her crown, peace and dignity; every indictment of a Catholic gentlewoman or other person of inferior degree, for harbouring, comforting and aiding a Catholic priest in his violations of the existing law, or for wearing tokens imported into this country from the See of Rome; and every one of the many indictments of Catholics for trespasses and contempts, in forbearing to go to church, chapel, or any usual place of Common Prayer,—indictments that, even in their present imperfect and fragmentary state, afford us the means for making at least a general estimate of the number, material strength, and religious thoroughness of the Catholics of Elizabethan Middlesex. It will of course be observed that these indictments exhibit numerous diversities and discrepancies in the descriptions of the offenders, and spelling of their names. As these diversities and discrepancies are interesting features, and no unimportant element of their historic testimony, I have been at pains to exhibit them in the entries of the calendar.
It may, however, be objected against any choice of documents for especial notice, that however trivial and uninstructive, every indictment affords a unit to the sum of the particular class of offences to which it relates, and therefore yields an item of testimony, for the information of those inquirers, who would get a general view of the criminal activity of the county, and also ascertain the respective prevalence of the various crimes. Mindful of this, I have been gathering and shall continue to gather from the session-files the materials for a precise statement of the number of the indictments, found by grand juries throughout the period covered by my volumes, the number of indictments for each variety of crime found in each of the successive years, the number of individuals arraigned in each year, and the numbers of the persons who appear from the memoranda on the indictments to have put themselves 'Guilty,' to have been found 'Guilty' by trial, to have been acquitted, to have pleaded their clergy effectually, to have received the sovereign's pardon, or to have received sentence for their respective offences. This body of statistical information will be given in the last chapter of my next volume. Enough has been said of the fragmentary state of the imperfect series of files, to forewarn readers that this summary of the annals of crime in Middlesex from the third year of Edward the Sixth to the last year of James the First will be largely defective. But as there is no reason to suppose the circumstances, that have so greatly reduced the number and bulk of the files, were especially destructive of any particular class of indictments, the necessarily imperfect summary will afford reliable evidence as to the respective prevalence of the different kinds of crime throughout the whole period. On the other hand, from the summaries of the indictments, pertaining to those years of Elizabeth and James which give us comparatively perfect collections of sessions-files, readers will be able to form a general estimate of the amount of crime in the years whose rolls are few in number and attenuated by decay.
XV. Dates.—The two prime dates, in every perfect record of a crime coming to judicial cognizance, are the time at which the offence was committed and the day of the culprit's trial. With respect to former and, in the majority of cases, by far the more important of these dates, it is seldom that an indictment noticed in this volume leaves the reader in uncertainty. Sometimes the decay or mutilation of a parchment has destroyed the evidence of this more important date. But the cases are few where an indictment fails to exhibit the year and day of the offence. This date, seldom missing, always precise when extant, and almost always more important than the date of trial, is the date prefacing each entry touching an indictment in the ensuing calendar. In cases where the offence may be said to have had two dates, from extending over a considerable period, like the trespasses and contempts of the Catholic recusants, the date of the commencement of the offence is the date given immediately before the entry that notices it. In the few cases where this rule is departed from, the contents and structure of the note will save the reader from misconception and confusion.
The date at the end of an entry is invariably the date of the session, endorsed on the particular file, that contains the particular document described in the entry. In the case of an indictment for felony in a Gaol-Delivery roll, it is also the approximate date of culprit's arraignment. The reader should, however, be cautious not to take this date as anything more than an approximate date. Sessions of Gaol-Delivery in Tudor England varied in length as they vary now-a-days from the number of prisoners to be delivered, the proportion of the culprits who spared the time and labour of Judges by putting themselves 'Guilty,' and the various circumstances that made it a long or short business to deal with the culprits who pleaded innocence and put themselves on the country. But whatever the number of days spent on the business of the session, only one of the days is noticed in the endorsement of a Gaol-Delivery roll, except in the cases of two or three of the Elizabethan files where two several days are mentioned. As to arraignments, the single date is all the less precise, because the one day given in the endorsement may be the day on which the commission of GaolDelivery was opened, or the day on which the delivery was finished: since it appears from the endorsements that it appeared a matter of indifference to successive Clerks of the Peace whether they mentioned the earlier or the later date. Even for this approximate date one often looks in vain to the back of a mutilated rolled file. Whilst very many of the fragmentary rolls have lost their wrappers, no inconsiderable proportion of them have also lost the writs which would enable an editor to assign the right dates to the attenuated bundles. Hence the numerous entries touching indictments, that give only the year or reign to which the files, in which they are preserved, pertain. In respect to notes of indictments that have no concluding date, readers may assume the parchments to be "broken files,"—viz., documents which, through the breaking of a string, have passed from their proper bundles, under circumstances rendering it impossible to declare confidently the approximate date of the arraignment.—Further, in respect to the entries touching indictments, the reader may be reminded of what has already been said of the minutes put upon a large proportion of them by the Clerk of the Peace. Unless he bears in mind that these minutes relate to incidents subsequent—in some cases, years subsequent—to the gaol-deliveries to which the bills belong, perusers of the ensuing calendar may suspect editorial carelessness, where the editor has failed neither in circumspection nor in accuracy.
The initial date of every Recognizance, noticed in the ensuing pages, is invariably the date when the Recognizance was taken. In like manner, the date prefacing an entry touching an Inquisition-postmortem is the day on which the inquest was taken. As in the case of an Indictment, the concluding date to an entry touching an Inquisition-post-mortem or a Recognizance is the date on the wrapper of the rolled file in which the document is preserved.
XVI. Diction and Orthography of the Calendar.—In manipulating a large number of Latin documents into literature, not only for special students but also for persons who have either forgotten their Latin or never had any to forget, I have retained little of the barbarous language employed by lawyers of a former period in the composition of legal instruments. Here and there, for the better entertainment or fuller assurance of the special students, I have introduced brief passages of the more or less corrupt and contracted Latin; but in doing so I have not omitted to translate the Latin into English, whenever the interests of Latinless readers seemed to require me to do so.
It is more needful that I should speak of the antiquated English, largely used in my entries. It has been already stated that the Latin indictments are interspersed with scraps of English, and that a considerable proportion of the Latin recognizances have English endorsements or foot-notes in the mother-tongue. In weaving the English of these scraps, notes and endorsements into my entries, I have retained the obsolete spelling of the legal draughtsmen. Readers will therefore assume, on coming to English words of obsolete spelling in the ensuing pages, that they are words to be found in the writings under immediate consideration. This is to be assumed whether the words are given in, or without, inverted commas. When they are printed within inverted commas, the commas are to be regarded merely as indications of additional assurance that the transcriber's accuracy may be relied on, or as a hint that the words are for some reason or other especially noteworthy.