Scarisbrick, J. J. Henry VIII. Berkeley: University of California Press, 1968.
Seymour, William. Ordeal by Ambition. London: Sidgwick and Jackson, 1972. This covers the lives of Lord Protector Edward Seymour, duke of Somerset (1502-1552), Lord Admiral Thomas Seymour, Baron Seymour of Sudeley (1507-1549), and Jane Seymour, queen of England (1509-1537).
Smith, Lacey Baldwin. A Tudor Tragedy: The Life and Times of Catherine Howard. New York: Pantheon Books, 1961.
Wilson, Derek. Sweet Robin: A Biography of Robert Dudley, Earl of Leicester (1533-1588). London: Hamilton, 1981.
NOTE: A number of new biographies, particularly of Queen Elizabeth I, have been published since this volume first appeared in print. I have not added them here because I have not read them.
CHAPTER NINE: CRIME AND PUNISHMENT
Throughout this period of English history, people at all levels of society went to the law courts at the drop of a hat. Civil suits and criminal cases and cases brought before the ecclesiastical courts concerned every aspect of everyday life. Between 1560 and 1580, the number of suits tripled in the courts of King’s Bench and Common Pleas. In 1580, 13,300 cases were at an advanced stage in these two courts. In 1606 the number was 23,453 and in 1640, 29,162. Similar numbers apply to the other courts. The Western assize judges, whose circuit included six counties, heard 721 cases in 1611 and 1,024 in 1656. The number of lawyers also multiplied at a phenomenal rate.
LAWYERS
A lawyer, to use the most general term, was anyone who handled the legal affairs of another. Estimates place their numbers at 1,400 in 1574. Several thousand men were active in the profession between 1560 and 1640.
By 1600, solicitors and attorneys were the two types of lawyer most often consulted by clients at the beginning of a suit, but there was as yet no rule against direct access to a barrister. Solicitor was a term just coming into use to refer to one who prepared and directed a case, but it was still ill-defined. The qualifications of a solicitor were also vague. An attorney was any lawyer who appeared in place of a litigant in the central courts housed in Westminster. By 1560, attorneys had to undergo some form of examination and take a sworn oath, but there were no specific qualifications. Some attorneys studied at the Inns of Court. Others, including many small-town attorneys, who provided basic legal services to ordinary people, were trained by apprenticeship.
The Inns of Court have been called England’s third university. There were four, actually houses where students of common law lived and studied: the Inner Temple, the Middle Temple, Gray’s Inn, and Lincoln’s Inn. In addition, there were eight Inns of Chancery, where lawyers might study before transferring to an Inn of Court, and two Serjeants’ Inns, for serjeants-at-law and judges only. It cost about £40 a year for seven to eight years to train a competent barrister, who could then expect to net about £600 a year in income.
The Elizabethan equivalent of an upper branch of the legal profession included barristers (who served as readers, benchers, and pleaders) and serjeants-at-law. Judges in the Westminster courts were appointed from the latter group.
By the mid-1520s, 100-200 barristers were practicing in England. About fifty of them worked only in the courts at Westminster. The number of calls to the bar per year averaged 184 in the 1570s, 383 in the 1580s and 515 in the 1630s. No clear distinction between a barrister and an attorney seems to have been made before 1700, although the professional status of those who were called to the bar at an Inn of Court grew in importance during the sixteenth and seventeenth centuries.
STEPS IN THE LEGAL PROCESS
Common law procedure was fairly straightforward. In civil cases, the plaintiff obtained a writ from Chancery to enable the case to commence and to compel the defendant to appear. Counsel for both sides prepared documents. Until the early sixteenth century, all pleadings were done orally but by the middle of Henry VIII’s reign, written pleas were the norm. The central courts usually assigned cases to the local assizes by a writ which ordered the parties to appear at Westminster on a certain day if they had not settled their differences by then.
A judge and jury heard civil cases. In criminal cases, the accused was “presented” and a formal charge (indictment) was placed before a grand jury of up to twenty-four men. If they found a “true bill” the accused was then tried before a judge and a twelve-member petty jury.
CENTRAL LAW COURTS
There were four law terms, when the courts met for four weeks at a time. Even after the Reformation, they continued to be known by names that had their origin in the Catholic calendar: Hilary, Easter, Trinity, and Michaelmas. Central Courts housed in Westminster included:
Court of the King’s/Queen’s Bench—a common-law court which handled criminal cases and also served as a court of review, exercising jurisdiction over both quarter sessions and assizes.
Court of Common Pleas—a common law court which handled debt, trespass, and other personal actions.
Court of the Exchequer—actually the royal accounting department, which had a small common-law jurisdiction.
ASSIZES
Judges from the central courts traveled to hold assizes in each county town. They tried all felonies except larceny and added that after 1590. Six circuits held two assizes each per year except in the extreme north, in Middlesex, and in London. Two commissioners were assigned to each court. The judges rode their circuit in the Lent and Trinity vacations.
QUARTER SESSIONS
These courts met every three or four months at the county level and provided trial by jury. Quarter sessions generally lasted three days. They were presided over by two justices of the peace. Most cases dealt with minor offenses, but since any theft of property worth more than a shilling was a felony, punishable by death, they did order many executions. In 1599 in Essex, for example, Agnes Osier was hanged for breaking into a house and stealing 60s. and two flaxen sheets (worth 4s. 4d.). After 1590 all capital crimes were referred from the quarter sessions to the assizes. A list of indictments at quarter sessions in Kent at the beginning of the seventeenth century indicates that the offenses were 68% administrative, such as keeping an unlicensed alehouse, and 32% criminal.
PREROGATIVE COURTS
Created by exercise of royal prerogative in order to remedy shortcomings in the judicial system, these courts also met in Westminster.
The Court of Chancery: Handled trusts, partnerships, and mortgages, administered estates and enforced contracts, and came to be the body which established case law and legal precedent. Lawsuits began with original writs issued here but the preparation of cases was handled by officials of common pleas. In 1590, Chancery employed at least forty-one different officials, most of whom had assistants. Tips and gratuities to all the minor officials, such as doorkeepers, were customary. By 1600 the Court of Chancery was hearing 300 cases a year and delays of up to three years were common.
The Court of the Star Chamber: Originally the Privy Council in Star Chamber, it took its name from the fact that the ceiling in the chamber in which it first met was decorated with stars. Established in 1487, the Star Chamber became a law court separate from the Privy Council around 1540 and was abolished in 1641. The Star Chamber met only on Wednesday and Friday during law terms and claimed to be superior to common law. It was thus the only English court which could order the accused to be tortured. Until 1588 the rack (a frame upon which the victim was stretched by turning rollers attached to his wrists and ankles) was “the accustomed torture” but from 1589 to 1603 torture was generally carried out at Bridewell, which had no rack. At first the Star Chamber dealt primarily with cases involving riots or other violence. Later, cases of slander and libel were heard there. Use of defamatory words was a criminal offense solely within the jurisdiction of the Star Chamber and the ecclesiastical courts. The number of cases in the Star Chamber increased tenfold between 1558 and 1603.
The Court of Requests: Set up to handle civil matters for poor suitors, it evolved into a formal court by 1485. Judges held their seats for life.
The Lord Privy Seal was nominal head of this court but no one who held that office sat as a judge during the years 1516-1630. In 1598 the common-law courts refused to recognize the authority of the Court of Requests. It lingered on until the Civil War but had lost much of its influence.
A MISCELLANY OF SPECIALIZED COURTS
Regional Courts operating in restricted jurisdictions during this era were the Royal Palatine Courts of Chester and Durham, the tribunals associated with the Duchy of Lancaster, the Council of the North (which met in York from 1537 on), and the Council of the Marches of Wales. The last two were regional equivalents of the Court of Requests and the Star Chamber. By 1600 the Council of the North was hearing 1,000-2,000 cases a year.
Admiralty Courts: Primarily tried pirates and distributed the booty seized in their capture.
The Court of Chivalry: Tried civil cases under the law of arms. James Tuchet, Lord Audley, was condemned to death by this court in 1497 for his part in the Cornish Rebellion.
The Court of Delegates: This royal tribunal staffed with civil lawyers heard appeals from the Bishops’ Consistory Courts and the Courts of Admiralty and Chivalry.
The Court of the High Steward: Convened to try peers by common law before a select panel of noblemen. Rarely used, it almost always dealt with treason. An exception was the 1541 trial of Thomas Fiennes, Lord Dacre of the South, for his involvement in the death of a gamekeeper during an illegal hunting expedition. Seventeen peers found Dacre guilty. He was hanged at Tyburn two days later.
The Court of Sessions: Established in 1532 to handle civil cases, it later extended its jurisdiction to criminal cases. The first Old Bailey Sessions House was erected in 1539 next to Newgate Prison at a cost of £6,000. It took its name from a nearby street.
The Court of Wards and Liveries: Established by statute in 1540 to deal with the estates of infant wards of the Crown, it was presided over by the Lord Treasurer, two Chief Justices, the Chief Baron, the King’s Serjeant, “divers Surveyors,” and an Attorney of the Court. When a male ward reached twenty-one (for a female it was sixteen), he could “sue out livery” with a payment of half a year’s profits from his estates.
Ecclesiastical Courts: Administering canon law, they dealt in sin rather than crime. The Bishops’ Consistory courts, episcopal courts of audience, archdeaconry courts, and the courts of some independent parishes and chapelries continued to be active after the Reformation. Proctors, usually notaries public, served in these courts as advocates. Many of the cases dealt with the sexual misbehavior of parishioners and this earned the ecclesiastical courts the nickname “bawdy courts.”
The Court Baron: A manorial-level court concerned with customary law to do with tenures, copyhold and freehold issues, trespass, and debts up to 40s. The manor’s steward acted as judge with a jury of tenants.
The Court Leet: Also on the manorial level, it was involved in keeping the peace, enforcing statutes, and punishing antisocial behavior. The manor’s steward presided as both judge and clerk.
Petty Sessions: An outgrowth of the increased caseload of the quarter sessions, they met monthly by the late 1590s. Here two magistrates dispensed justice without a jury.
The Sheriff’s Court (or County Court): Had only one function left in the seventeenth century, the election (by acclamation) of the two members of Parliament for the county.
The Courts of Small Pleas: Met in towns. Some hundreds (the municipal division between a parish and a county) also had their own courts.
LAW ENFORCEMENT PERSONNEL
Justice of the Peace
J.P.s were appointed by the monarch, though actually chosen by the Lord Chancellor, to be responsible for the upkeep of roads, the building and maintenance of bridges, the erection of jails, the control and licensing of public houses and players, the regulation of labor, wages, and trade, the administration of the Poor Law, and the determination of paternity when bastards were born. In criminal cases, justices received and investigated complaints, called witnesses and bound them over to appear at a trial, examined accused persons, and committed them to gaol or released them on bail. They ran the quarter sessions and served at the assizes as a sort of grand jury.
Although Henry VIII’s J.P.s included almost every adult peer, some of whom served in more than one county, J.P.s were usually drawn from the ranks of the landed gentry. Their numbers steadily increased. Kent had fifty-six in 1562 and 110 in 1604. In 1580, J.P.s numbered 1,738 for the whole of England.
High Sheriff
Elected on the morrow of All Soul's Day (All Soul's Day was November 2) by the Privy Council, a sheriff served for one year, during which time he was required to live in his county and keep up the dignity of the office at his own expense. Since this usually cost more than the position paid, few sought the honor. In 1609 the sheriff of Worcester had several extra expenses. He had to hire four guards to transport a notorious horse stealer from Westminster to Worcester, and he had to buy faggots, pitch, gunpowder, links of iron, and straw, and pay six men to tend the fire in order to carry out the sentence of death by burning against one Mary Perkins for poisoning her husband.
In a few cases, the office of county sheriff had a longer tenure. Under Henry VII and Henry VIII, the Cliffords were hereditary sheriffs of Westmorland. Sir Edward Stanley, created Lord Monteagle in 1514, served as sheriff of the county palatine of Lancaster from 1485 until his death in 1523, but his son did not inherit the post. Likewise, in 1534, Henry VIII appointed the sixth earl of Northumberland sheriff of that county for life. Northumberland, who died in 1537, paid the king £40 a year for the honor.
The city of London had two sheriffs who also served all of Middlesex County. One was elected, the other appointed by the Lord Mayor. The city of York had two city sheriffs, elected every September 21. They took office on September 29.
By the mid-sixteenth century, sheriffs had few judicial or military powers left (these having gone to the justices of the peace and the lord lieutenants respectively) and were primarily administrative agents for the central government. They collected debts and royal revenues (rent on Crown lands, debts owed the Crown, legal fees, and the tax called ship money under Charles I), served writs of the central courts, impaneled juries, executed judgments of common-law jurisdictions, enforced local penalties, listed prisoners held in gaol, and were responsible for calling and running the assizes and quarter sessions. This included making arrangements for lodging and entertaining the judges, everything from the provision of hogsheads of beer and wine, sugar loaves, a sheep or a calf, and the services of cooks, butlers, a steward, chamberlains, and criers, to oats and fodder for some thirty to forty horses.
Norfolk and Suffolk shared a sheriff until 1575, although other joint shrievalties were abolished in 1567. Most sheriffs appointed undersheriffs and bailiffs to do the actual work of serving writs and carrying out arrests.
Coroner
The coroner (“crowner” in medieval times) was concerned with sudden death because in cases of murder the property of the murderer was forfeited and a share went to the Crown. Out of this, the coroner received 13s. 4d. He got nothing from a suicide or an accidental death. The coroner had lost much of his authority by the sixteenth century, but be could still make an indictment upon viewing a body and order an arrest. Arraignments, however, now took place before two justices and they, not the coroner, bound the accused felon over for trial.
High or Chief Constable
The local police authority of a hundred (the administrative district between a county and a parish), the high constable maintained the watch, set up beacons, moved vagrants along, oversaw the repairs to roads and bridges, passed instructions from the quarter sessions down to individual parishes, enforced the annual wage scale, and returned presentments by parish officers to the quarter sessions. Most served more than one year and a few held the same post for decades.
Petty Constable
Also called parish, village, or town constables, these were the most lowly officers in the system. A pett
y constable was chosen by the steward of a manor or elected by his fellow householders (among whom the job was rotated) to carry out the instructions of the county courts. Duties included collecting taxes, raising the hue and cry after a fugitive, and executing punishments ordered by the magistrates. These included the stocks, whipping post, ducking stools, and a “high cage” for rogues and vagabonds. Constables’ weapons might include bills (primitive bladed weapons), pikes, bows and arrows, and muskets. As the general purpose official in charge of all detection and presentment of crime in his parish or manor, the petty constable was responsible for apprehending felons and was liable for a fine for failure to arrest. He could also be made to maintain a bastard child if through negligence he let the father escape the area.
Watchman
The watch, like the petty constable of a village, was recruited from the ranks of householders in the neighborhood. Armed with lanterns, bells and pikes, they were expected to call out the hour of the night and arrest any malefactors they came upon.
Common Informer
Although not officials in the law enforcement system, informers played an important role by reporting the misdemeanors of their neighbors. Some informers regularly presented twenty to forty lawbreakers to the quarter-sessions judges. This wasn’t difficult when there were laws on the books concerning everything from the sumptuousness of the clothes one wore to the price an innkeeper could charge for ale. For this service, informers received half of whatever fines were assessed. The Crown got the other half. Informers themselves were regulated by an act of 1589.
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