by Neal Roberts
Nor were the rules of evidence as well-defined as we now know them, and their fluidity left the trial judge with great discretion in deciding questions of admissibility. The rhythm of question-objection-ruling so familiar to lawyers of today (and whimsically depicted in the fictitious Granger trial) would have been far from the norm in those days.
The depiction of Goodman Granger’s trial is accurate to the extent that it was left to Granger himself to challenge the Crown to submit the Crown’s witness for cross-examination; otherwise, the witness would have gone unconfronted. And, incredibly, Granger would have had no right to call witnesses of his own.
Frizer’s Murder of Marlowe, and Acquittal by the Coroner
The story’s description of the coroner’s trial of Ingram Frizer for the murder of Christopher Marlowe is not nearly as ahistorical as one would hope. In fact, Frizer was tried by a coroner and found not guilty. The coroner’s verdict, however, expressly disclaimed that it would preclude a court of law (presumably one of plenary criminal jurisdiction, such as Queen’s Bench) from trying Frizer. It’s disturbing to note that the novel is accurate in showing that Frizer was in fact pardoned, which did indeed preclude subsequent prosecution.
Courts of Irregular Session
That some perceived enemies of the Crown were tried at courts of irregular session, such as Oyer and Terminer, is historical fact. Noah was correct in remarking that Courts of Oyer and Terminer had been convened to convict Archbishop Cranmer and Lady Jane Grey, both of whom were convicted and put to death.
The patently unfair practice of appointing members of the Privy Council to serve as Commissioners of such courts is also historical fact. The Court of Oyer and Terminer that tried and convicted Doctor Lopez (the first time) was constituted by the very Commissioners named and described in the novel, including but not limited to the obviously partial Earl of Essex. As Noah told Jonathan, it was indeed standard procedure for the same Commissioners to sit as both grand and petit jurors.
I expect that thinking lawyers of the time must have perceived the inconsistency between the requirements of Magna Carta and the practice of detaining a commoner, such as Doctor Lopez, to be tried by a court comprised of men of much higher station. I can only surmise that this was the reason Lopez was retried at the Court of Queen’s Bench before being put to death. Despite the novel’s glimmer of hope that Queen Elizabeth might soon put an end to the practice, in fact the practice appears to have been reexamined no sooner than the Petition of Right in 1628, during the reign of the unfortunate Charles the First. [Some of the abuses inherent in convening a Court of Oyer and Terminer at the request of private individuals against other named individuals were recognized and circumscribed at least as early as the reign of Edward the Third. 1 id. at 110.]
As with many developments in the evolution of the largely unwritten English Constitution, it is difficult to discern from generally available sources precisely when such abuses were finally ended. Though the evolution of the English Constitution may seem inscrutable to those living under a written constitution, there can be no doubt that English justice has, in its own winding way, evolved into a model for the world to emulate in the protection of individual rights against a sometimes overweening state.
At the time Lopez was executed, his clemency application had in fact not been decided, nor had the Queen authorized the release of his death warrant. While the evidence is equivocal, it appears that Lord Burghley — notwithstanding that he had suffered a serious stroke unacknowledged in the book — had a hand in authorizing his retrial. I regret the need to mention that forged evidence appears to have been submitted with the knowledge and cooperation of both Lord Burghley and Sir Robert Cecil [D. Green, The Double Life of Doctor Lopez 256 et seq. (2003)].
There’s no reason to believe that a motion such as that brought by Noah was made before the Court of Oyer and Terminer, urging the court to transfer the Lopez case to Queen’s Bench, and then to dissolve. It is doubtful that a procedure had been established for presentation of such a motion (even Noah remarks that there was none(, and I have little doubt that a lawyer presuming to intercede between the Crown and its perceived enemies in such unorthodox manner would have found himself in grave and immediate peril, much as Noah did after making his highly irregular motion.
Might Essex Have Lost His Hand?
Finally, the student may be surprised to learn of the historical accuracy of one aspect of Elizabethan law that arose during the fictionalized version of Lopez’s clemency hearing. Punishment for someone raising a hand to strike another in the court of King’s (or Queen’s( Bench, regardless whether the hand struck, and regardless whether it wielded a weapon, was that “he shall lose his hand and his goods, and the profits of his lands during his life, and suffer perpetual imprisonment, if the indictment lay the offence as done coram domino rege.” [1 J. Stephen, A History of the Criminal Law of England 349-50 (1883) (quoting at length T. Smith, Commonwealth of England (written 1565, printed 1584))]
As the confrontation between Essex and Noah was entirely fictional, the Queen did not have occasion to decide whether to order Essex’s hand cut off. But it is extremely unlikely Her Majesty would have done so, since Essex is known to have actually raised his hand once against the Queen’s person, and needed to be restrained. Yet he never lost his hand. As the faithful reader will see in a later book in the series, eventually he lost much more than that.
Inns of Court
Serjeants’ Inn is gone, as is the order of Serjeants. Gray’s Inn, however, still stands precisely where it is situated in the novel. Although, in Noah’s time, that was just west of the City of London, the city has long since expanded to subsume it.
Acknowledgments
First and foremost, to my good friend and correspondent Brenda James, who alone deciphered the code in the dedication to Shakespeare’s sonnets and who, together with William Rubinstein, began the long and arduous — but fascinating — task of introducing the world to the true bard. Also, to Mark Bradbeer and John Casson for both their past work and their excellent new book on the authorship evidence in the history plays.
I’d also like to extend my heartfelt thanks to Myra, Gigi, Joanna Volpe, Jen Nagler, Uncle Jack, Tim and Marie Donovan, the Coxes, Good Cousin Barbara (think screenplay), Nadine (who first brought Mrs. James’s work to my attention), John O’Donnell and his cadre of experts (who so improved Noah’s execrable Latin), Mom, George, Lily, and all the other relatives and friends who’ve lent their time, and their moral and literary advice and support to this project.
To my editor, Laurel Busch, I extend my sincerest thanks for her patience and extraordinary skill in helping this most opinionated of writers. To the rest of my great support team, for whom no amount of gratitude is enough, Martin Jones, Samantha Williams, and Greg Simanson, I hope to work with you all as long as I have a book to write. To my wonderful web designer, Willa Cline, many thanks.
Sneak Peek at Book 2 of
In the Den of the English Lion:
The Impress of Heaven
by Neal Roberts
Chapter 1
Great Room of the Lord Keeper of the Great Seal
York House
London, England
June 5, 1600
IN THE FOREMOST pew of a hushed room packed with spectators, Serjeant Noah Ames awaits the opening of the Earl of Essex’s trial on charges of high treason against the Crown. On the dais await many of the most famous officials in England. Displayed behind them is every item of colorful heraldry that can be mustered for an occasion outside a genuine throne room. An ornately woven arras bearing Queen Elizabeth’s coat of arms and her motto Semper Eadem drapes from the thirty-foot ceiling to the back of the unoccupied throne.
From behind Noah come the overloud voices of an old man and his wife, evidently discussing him. Although spectators upon this occasion are supposedly limited to the nobility and members of the learned professions, the pair’s uncultured manner of speech shows them to be no more than common merchants
. Without turning around, Noah cannot be sure whether they speak so loudly because they wish to be overheard, or simply because, being hard of hearing themselves, they believe they’re speaking in moderate tones.
“That’s the Queen’s Jew lawyer, right in front of us,” croaks the old woman.
“Who, this one?”
“Don’t point, Elias. No. This one, right here.”
“What would he be doing here?” inquires the old man.
“Probably come to rejoice, if the earl’s carted off to Tyburn.”
“What’s his grudge against the earl?”
“Why don’t you ask him?” she says.
“Pshaw! Don’t be ridiculous.”
After a moment’s silence, she intimates in a stage whisper, “They say he blames the earl for executin’ that Jew doctor who tried to poison the Queen before he could plead for clemency.”
The old man replies, “Thick as thieves, eh? Should never have let that snake close enough to the Queen to sting her in the first place.”
Noah looks to his right where his co-counsel, the young Arthur Arden, returns his gaze and smolders at the presumptuousness of the two know-nothings behind them. Noah pats Arthur’s hand comfortingly, careful to seem unperturbed.
“Anyways,” says the old woman, “he’s got no love for our Essex, and that’s the truth!”
Our Essex! This is becoming almost too much for Noah himself to bear. As he considers a riposte, however, the Lord Steward pounds his staff on the floor three times, mutely ordering the assembled to rise, which they do, with a thump and rustle.
A dark-stained oaken door behind the dais swings open, and in walks the diminutive Sir Robert Cecil, Secretary of State, who glances about quickly, and strides to his place behind the elevated podium at the center of the dais. As attested by his elaborate costume, Cecil has served the Crown as its leading minister since the death of his father Lord Burghley less than two years ago. He glances down at the small satin pillow carefully positioned before the dais where, by royal command, the accused will kneel until the conclusion of the trial. “Yeoman Warder! Kindly escort the earl into the chamber,” he solemnly pronounces.
Grizzled old Yeoman Gardner, long familiar to Noah, leaves his post alongside the dais, and tramps heavily to the rear portal through which the spectators entered. He shouts a command, and the door swings open.
The downcast figure of Robert Devereux, Earl of Essex, mournfully enters the chamber escorted by two burly guards. The colorful uniforms of the Yeoman Warders contrast sharply with the dark penitential garment worn by the accused earl, a monk’s robe of deepest black, devoid of any color or flourish to signify his station. His face partly concealed by a cowl, his only adornment is a large golden pendant in the shape of a cross that hangs from a heavy gold chain around his neck. The guards march him respectfully to his assigned place, as marked by the pillow. His cowled face too low to be seen, he faces the dais as his escort stamps noisily to the rear, departing through the door by which it entered. He glances along the dais, pausing a moment as his eye finds Sir Francis Bacon at one end. He kneels.
Satisfied with the earl’s submissive posture, Cecil intones ceremoniously: “Who shall prosecute for the Crown?”
A voice responds promptly. “Queen’s Counsel Sir Francis Bacon, for the prosecution.”
Cecil nods his approval. “And who shall assist the earl in his defense?”
At first, there’s no response, the only sound that of a rising wind outdoors that rattles the clerestory windows. After a few moments’ silence, Cecil arches his eyebrows expectantly.
Noah, his stomach knotted, succumbs at last to the expectations of court and counsel. Girding himself, he rises to answer the call.
“Serjeant Noah Ames, for the prisoner,” he says, his clear voice ringing through the chamber.
An unearthly gasp arises from the spectators behind him, followed by howls of protest against the “Jew lawyer.” Evidently, the spectators have been given no foreknowledge that the barrister who’ll be defending the earl is the very man most commonly believed to despise him. Amidst the tumult, Noah silently recites a Hebrew prayer asking God’s forgiveness, and recalls the events that led him to this bizarre juncture.
Eight Months Earlier
Westminster, England
Outside the Court of Queen’s Bench, Noah dismounts, pats his horse’s muzzle, and hands off the reins to the courthouse stableman. “This mount belongs to Sir Robert Cecil. I borrowed him last night, and promised to return him this morning.”
“I thought he looked familiar,” says the stableman. “Who’re ye here to see this lovely morning, Serjeant Ames?”
Noah pats the note in his pocket. “I’ve been summoned by Sir Robert, John.”
The stableman nods. “I’ll have the boy take you inside to ’im.” As ever, Noah hands him a good gratuity.
An eager-looking young page appears and leads the way through the rear entrance down a labyrinth of hallways, chambers, and jury rooms, stopping at last before a closed door of dark-stained oak. He opens it a crack, and peers inside. “Sir Francis!” says the page. “I didn’t expect you to be here. I was told to bring in Serjeant Ames.”
“Indeed!” says the voice of Francis Bacon. “Until a few moments ago, I did not expect to be here myself. By all means, bring in Serjeant Ames.” The page lets Noah in, and bows out, leaving the door ajar.
Noah is familiar with this room. It’s sometimes used by judges or members of the Privy Council to view outsized documents, such as land maps. It’s sizable and well-appointed, housing a large central table that can readily accommodate twenty. At the moment, however, the room holds only Sir Francis and Noah.
Noah bows. “Sir Francis, it is ever a joy to see you.”
Sir Francis rises with evident pleasure. “As it is to see you, Serjeant Ames.”
Noah takes a seat one chair away from Sir Francis to make use of the abundant space. “What’s this all about?” Noah asks.
“I assume you’ve been summoned here on the same business as I. Sir Robert evidently wishes us to join him in hearing Lord Mountjoy’s plans for the upcoming campaign against the Irish rebels.”
“Shall we not be joined by any military men?”
Sir Francis shakes his head. “Only one. But he’s a good one. Although Her Majesty had wished to hear this presentation personally and to have the Lord Admiral beside her, they’re both a bit under the weather.” He lowers his voice. “The Lord Admiral is getting on in years, you know.”
Noah nods sadly. “So, who shall it be, besides us politicians and barristers?”
Sir Francis leans back, his chest swelling with pride. “None other than the Captain of the Yeoman Warders!”
Noah’s eyebrows shoot up in admiration. “Sir Walter Raleigh. We lawyers shall provide a poor second chair to a warrior of such stature.”
Sir Francis waves his hand. “It’s all been decided, anyway. Lord Mountjoy already has the nod. Both the Lord Admiral and Sir Walter concur that Mountjoy’s the best man to replace Lord Essex as leader of Her Majesty’s forces in Ireland, now that Essex has returned … prematurely… and been placed under house arrest.”
The smile drops from Noah’s face and he shakes his head.
“What is it, Noah?” asks Sir Francis. “You seem almost disappointed at Essex’s well-deserved disgrace. I should have thought you’d feel vindicated at last in your low opinion of him.”
Noah sighs. “As you know, Sir Francis, I believe my opinion of Lord Essex to be well-founded. I have therefore never felt a need for vindication, although I’ll confess it is somewhat heartening to be joined by others at last, even if they ought to have recognized his failings long ago.”
“You’ll pardon if I observe that you do not appear to be ‘heartened,’ as you say.”
“No, I am not preponderantly heartened. Like everyone else, I am sorely disappointed that Her Majesty’s plan for subjugation of the Irish rebels has been turned on its head by that on
e willful man, that he reached a truce with the rebels as he had been expressly forbidden to do, that he left his post in Ireland contrary to Her Majesty’s command, and then compounded it all with his personal invasion of Her Majesty’s closet before she could be properly attired.”
Sir Francis smirks. “I take it, then, that you are in agreement with the commission’s removing him from command in Ireland and ordering him imprisoned with no date for his release?”
“As for his removal, I think that the commissioners’ emergency decision was absolutely necessary and completely justified. As for his indefinite imprisonment … well, you know as well as I that no Englishman may be imprisoned indefinitely without a full trial.”
“And you regard as legally insufficient the inquest conducted less than a week after his return.” Sir Francis smiles. “So do I. So does Attorney General Coke.” He looks at Noah appraisingly. “I have to admire your commitment to the precept that the rights of every Englishman cannot be secure unless the very devil is assured a full trial.”
Noah snickers. “Cleverly phrased, Sir Francis.”
“Page!” shouts Sir Francis. The page appears quickly in the doorway. “Has Sir Robert arrived, as yet?”
“Not yet, sir.”
“Very well. In the meantime, I wish to confer privately with Serjeant Ames. Close the door behind you.” The page bows and obeys.
Sir Francis leans toward Noah and speaks quietly. “I don’t suppose you’ve heard what the Queen has in store for Lord Essex?”
“No,” Noah replies hesitantly.