Middlesex County Records: Volume 4, 1667-88. Originally published by Middlesex County Record Society, London, 1892.
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List of contractions
(o) "retrax'" = retraxit = he withdrew. In the annotations of indictments after Charles the Second's restoration, "nec se retrax'," following a minute of acquittal of felony, signifies that the culprit acquitted of the felony was guiltless of having fled for the felony.
Students should bear in mind that there is always a difference, and often a very great difference, in the Latin contractions and other details of the minutes used by contemporary clerks of the different counties in annotating recognizances and indictments, and keeping Gaol Delivery Registers. The folios of the Middlesex G. R. Register and the gaol books of the western counties of the seventeenth century were 'kept' and 'posted' session by session very much in the same way; but there are some notable differences in the clerical details of the two sets of folios. For example, long after "nec rec'" had ceased to signify "he or they did not withdraw" in the minutes of the criminal records of the metropolitan shire, the symbol was used in that sense in the gaol-books of the western circuit. Again, students may learn from Mr. Inderwick's equally entertaining and valuable work that in the seventeenth century it was the practice of the western clerks in annotating the gaol books to indicate with stars those of the culprits who, after being sentenced to die, were actually executed; whereas such indicatory stars were never used by the Middlesex clerks who successively kept the great G. D. Register at Hickes Hall. Instead of putting a star against the name of every culprit who perished at the gallows, the keeper of the Middlesex G. D. Register put a grimly significant marginal S against the name. In the absence of the marginal S, the entry in the register touching Ursula Powell's fate would have only indicated that she was sentenced to be hanged. But the marginal S puts it beyond question that the law was allowed to take its course.
From the general similarity of the minutes in the Middlesex gaolbooks and the western counties gaol-books, it may be inferred that there was a corresponding similarity in the annotations put upon indictments at Hickes Hall and the Old Bailey and the annotations put upon indictments in the western shires. But in some parts of the country the minutes, put upon indictments by Clerks of the Peace and Clerks of Arraigns, were much shorter and less precise than the minutes put upon indictments in the metropolitan county. For example, instead of writing after the Middlesex fashion, temp. Elizabeth, "Po se cul ca null pet lib leg ut cler ust in man et del sec stat," over the name of a culprit to whom benefit of clergy was allowed after conviction of a capital felony, the sessional clerks in several districts of the country deemed it enough to write "cul ust" = the jurors said he was 'Guilty' and he was branded. Whilst the Middlesex clerks wrote "non cul nec recess" or "non cul nec rec" or "non cul nec r'" over the name of a culprit whom a jury had acquitted of a capital felony, it was the practice of sessional clerks of most districts of Tudor England to write only 'non cul"; and for all evidential purposes the shorter minute was just as effectual as the longer minute, provided the clerk of the records wrote 'sed rec' after 'non cul,' on the extremely rare occasions when the supplementary minute was needed.
(2.) Final Remarks on Nec Recessit = nec recess' = nec rec' = nee r'.—All experts in sessional palæography will allow that the thirteen words, "and the jury said the culprit is not guilty and did not withdraw," is a fair English rendering of the ambiguous minute "Non cul nec r." But two views have been taken of the thirteen English words, the one view being that they signify "The jurors gave a verdict of 'Not Guilty' and did not withdraw from the verdict," whilst the other opinion is that the thirteen English words signify that "the jurors declared the culprit 'Not Guilty' and that he did not fly for the felony.' Hitherto I have held to the former opinion; but since the publication of the third volume of Middlesex County Records, I have seen reasons for thinking I erred in respect to the puzzling minute "nec r'," and, for coming doubtfully to the conclusion that, instead of meaning "and the jurors did not withdraw from their verdict of 'Not Guilty,'" nec r' signifies "nor did the culprit fly." My reasons for changing my mind on this nice and perplexing question, and my grounds for being in some degree dis trustful of my new way of regarding it, will appear in the ensuing pages.
(a) Fugam fecit.—The flight, which was signified in Coroner's Inquisitions by the words "fugam fecit," and is spoken of in the lawbooks as "flight for felony" was the flight made by persons in order to escape arrest and prosecution for capital felony. The fugitives who committed the offence were in some cases the perpetrators of the crimes for which they fled. In other cases they were villains who, though guiltless of the particular felonies for which they were flying, shrunk from the thought of entering a court of justice lest they should be recognized as heinous criminals and dealt with according to their deserts. Not seldom the fugitive was a person wholly innocent of capital malfeasance, who had in the first case brought himself into suspicion by slipping away from the Hue and Cry, and then on finding himself suspected by his neighbours confirmed them in their bad opinion of him by disappearing from his customary haunts. In the 13th century Northumbrian juries often had occasion to find that a man was guiltless of capital felony, but had incurred the penalty of forfeiture of his goods and chattels by withdrawing himself stealthily from his usual place of abode, and flying for a felony of which he was guiltless. For example, in the Surtees Society's Assize Roll of Northumberland, 40 Henry III., a.d. 1256, edited by Mr. William Page, it is written of Edgar of Kerstern, "Dicunt quod Edgarus de Kerstern' subtraxit se pro suspicione latrocinii. Et juratores testantur quod non malecreditur de aliquo malefacto. Ideo redeat si voluerit, set catalla ejus confiscantur pro fuga. Nulla habet catella" = "They say that Edgar of Kerstern withdrew himself stealthily on account of suspicion of robbery. And the jurors testify that he is not suspected of any malfeasance. Therefore he may return if he shall wish, but his chattels are forfeited for the flight. He has no chattels." Subtraxit is a better word than retraxit for the description of the conduct of a man who withdrew himself stealthily from his proper district in order to escape trial for felony, but the signification of the less expressive of the two cognate words in the sixteenth century is demonstrated by the sense in which the other word was used in the thirteenth century. As se subtrahere and se retrahere both signified to withdraw one's self, and as the law regarded a man who had withdrawn himself from his usual place of abode shortly before he was wanted to answer to a charge of felony as having committed an act of flight, it is seen how se subtrahere and se retrahere and recedere (= to depart) all came to acquire in lawLatin the significance of fugere.
(b.) Immediate and Subsequent Flights.—Even as there were two kinds of fugitives, the fugitives who fled for felonies of which they were guilty, and the fugitives who fled for felonies of which they were innocent, so there were two kinds of flight, the flights that were begun immediately after the perpetration of the felonies that occasioned them, and the flights that were not begun till some time had elapsed since the felonies were perpetrated. A flight of the former kind must always have begun under observation and been open flight, for in default of witnesses to its commencement there would have been no evidence to justify jurors in certifying that after committing the capital crime the felon—"fugit statim" —fled immediately. On the other hand a subsequent flight was usually if not invariably a clandestine disappearance, made under circumstances that justified jurors in speaking of the fugitive as a person who had withdrawn himself stealthily. Edgar de Kerstern's flight was a subsequent flight. On the same page (p. 75) of the Surtees Society's printed copy of an Assize Roll of Northumberland, 40 Henry III., that notices Edgar of Kerstern's flight, one comes upon the record of the immediate flight of Michael de Anegos:—"Juratores præsentant quod Michael de Anegos de Scocia occidit Thomam de Ayden et Alanum Joel in villa de Corebrigg, et statim fugit et malecreditur, ideo exigatur et utlagetur. Nescitur de catallis ejus, quia extraneus [est] de Scocia," ="The jurors present that a certain Michel of Anegos of Scotland slew Thomas de Ayden and Alan Joel in the village of Corebrigg, and he fled immediately, and is suspected, therefore let him be required by proclamation to appear and be outlawed. Nothing is known about his chattels, because [he is] a foreigner out of Scotland." From Edward the Sixth's time down to the end of the period covered by this volume, jurors at Coroners' Inquisitions for cause of death were wont to say if flight for murder or homicide was made immediately.
(c.) Successful and Unsuccessful Flights.—The coroners' juries were also at pains to state when a fugitive had succeeded in eluding justice up to the date of the Inquisition. When the fugitive of an immediate flight had failed to outride or outrun his pursuers, the jurors merely said that he made his flight immediately, but when he had escaped the Hue and Cry, and gone no one knew where, the jurors spoke more fully in this or similar wise, "fugam suam fecit immediatim et recessit et sese retraxit in loca juratoribus predictis adhuc ignota" = he made his flight immediately and departed and withdrew to places as yet unknown to the aforesaid jurors. Several examples are given in the ensuing Calendar of the findings of coroners' jurors touching felonious flight.
(d.) Did he fly? Down to the day of George the Second's time, when Latin was again banished from our curial records, and down to the much later time when the statute of 7 & 8 Geo. IV., c. 28, s. 5, relieved juries at Sessions of Oyer and Terminer of the obligation to inquire and in case of acquittals to say whether offenders charged with capital felonies had made flight, it was the practice of coroners' juries to give serious attention to the evidence of flight. But in this respect the coroner's juries and the jurors at Sessions of Oyer and Terminer and Gaol Delivery differed greatly in Georgian England; for whilst the jurors at coroners' Inquisitions deliberated gravely on the evidence of flight the jurors of the criminal courts smiled openly or in the their sleeves, when they were required by the Clerk of Arraigns to say whether a culprit whom they had just acquitted of a capital felony had, his innocence notwithstanding, fled for the same crime. It was their practice to declare that the culprit had not fled for the felony of which they had found him "Not Guilty," however strong the evidence might be that he had made felonious flight on finding himself suspected of having perpetrated a capital crime. It was not uncommon in Georgian England for a judge with an antiquarian turn to instruct jurors with every show of seriousness that, if they should discover a culprit to have fled for the capital felony, of which he should be found guiltless, it would be their duty to say he had "made flight." But the judges were powerless to make Old Bailey juries give the true verdict, which social sentiment and their own sense of justice forbade them to give on the minor offence. And in this respect, the jurors of Middlesex under the Georges only did as the jurors of Middlesex had done under the Stuarts.
(e.) The Penalty of Felonious Flight.—The punishment of flying for felony was forfeiture of goods and chattels; and in the far away time, when it was ordained that a man should forfeit his goods and chattels if he were convicted of having fled for a capital felony, the punishment did not exceed the misdemeanour. For in that remote time an ordinary man's goods and chattels were of small value in comparison with an ordinary man's personal estate in the middle of the sixteenth century. And though it was no crime that could be reasonably ascribed to natural wickedness, to fly for a capital felony was more than a trivial misdemeanour in a period when every man knew that he was bound by his duty to his sovereign, to society, and to his neighbours of the hundred in which he dwelt, to do his utmost to bring doers of capital felonies to punishment. For such flights operate in various ways to defeat Justice, by misleading her servants. The selfish and timorous person who slipt out of the Hue and Cry, and made for the shelter of his own roof, instead of pushing onwards in the pursuit of a grave malefactor, took a course that was apt to divert attention and suspicion from the real felon to himself. In like manner, the timorous man, who slipt away under cover of night in order to escape a prosecution for felony, gave the capital felon a better chance of escaping punishment by con firming his neighbours in their unjust suspicion of himself. But though at the outset forfeiture of goods and chattels was no excessive punishment for the distinctly hurtful misdemeanour, it gradually became a much too severe correction as personal estate grew in quantity and value. In the middle of the sixteenth century, the ancient punishment for felonious flight appeared to most Englishmen so greatly disproportionate to the fault of the fugitive, who had himself done no capital felony, that judges found more and more difficulty in inducing juries to convict of the minor offence any person whom they had declared guiltless of the heinous crime for which he had fled. Juries had already ceased to recall their verdicts of acquittal for capital offences, when they showed their determination to forbear from giving verdicts of "Guilty" for mere flight from justice. Before Elizabeth came to the throne, it was remarked by lawyers, how reluctant juries had of late years become to convict honest men of having fled for felony not done by themselves. Before the queen breathed her last breath, it seems to have become the practice of Middlesex juries to acquit of the misdemeanour every person whom they acquitted of the capital felony.
(f.) The mere Survival of an Obsolete Usage.—Though I kept a sharp look out for minutes of "Non cul sed rec'" whilst I was working on the Clerkenwell Records temp. Elizabeth and James I., I came on no example of those minutes after the queen's twenty-sixth regnal year. In the annotations of indictments for capital felonies of James's time, "Non Cul" is invariably followed by "nec r'." From 19th January, 5 James I., the day on which the first folio of the great G. D. Register was begun, down to the time when the minute "non cul nee r'" passed for ever from the Middlesex County Records, I came upon no minute of "non cul sed r'." During so long a series of years, every minute of an acquittal of capital felony is followed by "nec rec" or "nec r'," alike in the annotations of the indictments and in the great folios. Neither on the indictments nor in the Register did I come on a single "non cul sed r'." It was always "nec rec'," or "nec r'," or "nec retrax'." Neither in the indictments nor in the Register of the Commonwealth period did I come upon a single minute of "Not Guilty, but he fled," though I came repeatedly upon "Not Guilty, nor did he fly." From the Sessions when Latin was restored to the Middlesex Records "nec se retrax'" was substituted for the abandoned "nec rec'" (= nec r') down to the end of the period covered by the present volume, there appears no note either in the Gaol Books or in the indictments signifying "the Jurors say that he is 'Not Guilty' of the felony, but that he did fly." All through this long period, from the beginning of the seventeenth century to the end of James the Second's reign, jurors on acquitting a prisoner of capital felony were always asked whether the acquitted culprit had made flight for the felony, and the jurors always answered the question in the negative. Students will, I conceive, be satisfied with this evidence that the practice of putting to juries at the Clerkenwell Sessions House and at the Old Bailey the question, which the jurors answered so steadily in the negative from the opening of the seventeenth century down to James the Second's abdication, was in that century, at least in Middlesex, a mere survival of a dead though unrepealed law.
(g.) Sources of Distrust.—Though "nec rec'" and "nec se retrax'" may be regarded as signifying that a culprit was guiltless of having fled for the capital felony of which he had been found 'Not Guilty,' there are considerations which at some moments make me doubtful whether I have done right in withdrawing from my first view of the puzzling minutes.
When it is remembered that the question put to the jurors was "Did he fly?", that their answer to the question was "He did not fly," that "fugit" or "fugam fecit" were the words used in coroners' inquisitions whenever they charged the doer of a felony with having fled, and that sessional minute-makers usually employed the most familiar Latin equivalents of the English words which they put into Latin, it appears very strange that instead of writing "nec fugit," or "nec fug'," or "nec f'," the sessional clerks in some parts of the country preferred to use minutes so indirect and fantastic and obscure as "nec recessit," "nec rec'," and "nec r'."
I had the more difficulty in coming to my present view of the significance of "nec r'," because in the Middlesex Records temp. James I. the minute appears not only on True Bills for capital felonies and in the G. D. Register's brief notes of trials for such felonies, but also on exceptionally interesting indictments, and in the Register's notes of especially noteworthy trials, for trespass and misdemeanour. In James the First's time, when it was no capital felony, but only a grave misdemeanour, punishable with fine and imprisonment, to administer poison to people, if the takers of the poison were not killed by it, John Chapman and Elizabeth Masterson (vide Middlesex County Records v. ii. p. 219) were tried at the Gaol Delivery held at the Old Bailey on 20th Feb., 14 James I., and divers ensuing days, "for trespass in giving poison to the Lady Willoughby whereof she languished." Convicted of this grave offence, John Chapman was sentenced to pay a fine of £5 and to be imprisoned during the pleasure of the Court. The note over his name in the Gaol Delivery Register is "po se cul fin vli repr' duran' voluntate Cur" = he puts himself 'Not Guilty' on a jury of the country, the jurors say he is 'Guilty,' therefore he is sen tenced to pay five pounds, and to be held in prison during the pleasure of the Court. Elizabeth Masterson was found 'Not Guilty,' the minute over her name being "po se non cul nec r'" = she puts herself 'Not Guilty' on a jury of the country; and the jurors say she is 'Not Guilty,' and did not fly. As she had not been tried for a capital felony, but only for a grave trespass and misdemeanour, she might have fled for the crime without incurring forfeiture of her goods and chattels. How are we to account for the presence of this "non cul nec r'" over the name of a person who had not been tried for felony, but for a trespass. I cannot think the jurors, who found Elizabeth Masterson 'Not Guilty,' were called upon to say whether she had fled for the offence of which she had been declared guiltless. Nor do I regard the slip as the result of mere clerical carelessness; for it is far from being the only mistake of the kind to be found in the Clerkenwell records of the First James's time. The frequency, with which "nec r'" appears under similar circumstances in the Middlesex Records of that period, disposes me to think that the then Clerk of the Peace for the metropolitan county may have had no definite notion as to the meaning of the minute.
That "nec r'" was Englished into "He did not flye," and "No flyinge," in 1651, by the Parliamentarian Clerk of the Peace, who in that year settled the English of the sessional writings of the metropolitan county, is in my opinion sufficient evidence that, in the latter half of the seventeenth century, the perplexing minute signified "He did not depart and thereby make flight" to the legal antiquaries and lawyers of Middlesex. It follows that, even if I had not retired and withdrawn myself from my first view of "nec rec'," I should, in my editorial treatment of the sessional writings of Charles the Second's time and James the Second's time, have assigned the same meaning to "nec se retrax'" which was substituted for "nec r'" soon after Charles's restoration.
XIII. Mr. Basil Woodd Smith's Contributions to the Present Volume. —At the close of this Preface let me advise my readers to give due attention to the budget of especially interesting matters—including the memoir of that Worshipful Justice of the Peace, Sir Baptist Hicks, Knt, &c.; and the autotype of the True Bill on which Ben Jonson was arraigned at the Old Bailey for the manslaughter of Gabriel Spencer—that are placed in this book between the Calendar and the Index.