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Tudor Indictments, illustrated by the Indictment of St. Thomas More *

Published online by Cambridge University Press:  16 September 2015

Geoffrey De C. Parmiter
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Extract

Indictments are of frequent occurrence in post-Reformation Catholic history, and it is important that their precise effect should be known. The length and prolixity of Tudor indictments, however, cause difficulty to many readers of these documents, and that difficulty is often increased by a lack of acquaintance with the technicalities involved. Indictments are technical documents and they can only be properly understood in the light of the technical rules which regulated them. Accordingly, the purpose of this paper is to deal generally with some of the more important rules governing indictments, and then to illustrate their application by means of the indictment of St. Thomas More. More's indictment is a convenient one for this purpose because it neatly illustrates a common pitfall, and the general circumstances of More's condemnation are so well known that it is unnecessary to set them out.

Type
Research Article
Information
British Catholic History , Volume 6 , Issue 3 , October 1961 , pp. 141 - 156
Copyright
Copyright © Catholic Record Society 1961

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References

Notes

1. Hales v. Petit (1563), Plowden 253, at p.259a: “For the Imagination of the Mind to do Wrong, without an Act done is not punishable in our Law, neither is the Resolution to that Wrong, which he does not, punishable, but the doing of the Act is the only Point which the Law regards; for until the Act is done it cannot be an Offence to the World, and when the Act is done it is punishable.” The act must be a voluntary act (Hale, P.C., i. 434, citing Reniger v. Fogossa (1551), Plowden 1, at p. 19a).

2. 25 Edw. III, stat. 5, c.2. This statute was given the short title “The Treason Act, 1351” by the Short Titles Act, 1896; it is still in force.

3. The original, French, text is: “quant homme fait compasser ou ymaginer la mort notre Seigneur le Roi ma dame sa compaigne ou de lour fitz primer & heir.” (Contractions have been expanded.)

4. Co. Inst., iii, 6.

5. See, e.g., Co. Inst., iii, 4, 12.

6. Co. Inst., iii, 14: “Cardinall Poole … in his booke of the supremacy of the pope, written about 27 H. 8. incited Charles the emperour, then preparing against the Turke, to bend his force against his naturall soveraigne lord and countrey; the writing of which booke was a sufficient overt act within this statute.”

7. Co. Inst., iii, 14: “And it is commonly said, that bare words may make a heretick, but not a traytor without an overt act.” See also Pine's Case (1629), Cro. Car. 117, at p. 126: “It was resolved by all the judges … that the speaking of the words before mentioned, though they were as wicked as might be, were not treason. For they resolved that unless it were by some particular statute, no words will be treason; for there is no treason at this day but by the statute 25 Edw. 3, c. 2. for imagining the death of the king, &c. and the indictment must be framed upon one of the points in the statute: and the words spoken here can be but evidence to discover the corrupt heart of him that spake them; but of themselves they are not treason, neither can any indictment be framed upon them.” This case was decided after an exhaustive review of the earlier precedents. See, also, Hale, P.C., i, 312, 315.

8. R. v. Owen (1616), 1 Rolle Rep. 185 (John Owen had said, “The King being excommunicate by the Pope, may be lawfully deposed and killed by any whatsoever; which killing is not murder.”).

9. The phrase is Bacon's; see Spedding, Letters and Life of Bacon, v. 109. See Hale, P.C., i, 116 (to say that the king was a bastard or had no title to the crown was high treason).

10. 25 Hen. VIII, c. 22; 28 Hen. VIII, c. 7; 32 Hen. VIII, c. 25; 35 Hen. VIII, c. 1.

11. There was the statute 26 Hen. VIII, c. 1, passed in 1534, which conferred upon Henry the title of “only supreme head in earth of the church of England”, and the Treason Act of 1534 (26 Hen. VIII, c. 13); these were the statutes under which the proceedings against St. Thomas More were brought. The other statutes relating to the religious settlement which created treasons were: 28 Hen. VIII, c. 10, which extinguished the papal authority in England, provided oaths renouncing the pope's authority, and enacted that a refusal to take these oaths was treason; 35 Hen. VIII, c. 3, which declared the king's style and made it treason to attempt to deprive the king, queen, or their heirs of their titles, styles, names, degrees, royal estate or regal power annexed to the crown. These statutes were, with some small exceptions, repealed in 1547 by 1 Edw. VI, c. 12, which, however, re-enacted the substance of some of their provisions. At the beginning of Mary's reign the treason legislation of the two preceding reigns was repealed (1 Mary, sess. 1, c. 1) and the statute of Edward III was again the only treason act in force.

12. 1 Hen. V, c. 5; this statute required that in all original writs, appeals and indictments, after the names of the defendants or accused persons there should be added a statement of their “estate or degree or mystery, and of the towns, hamlets, or places, and countries, in which they were.”

13. See, e.g., Year Book, 11 Hen. IV, Hil., pi. 7. It was also necessary to set out correctly the accused person's “addition” (see note 12): Year Book, Edw. IV., Hil., pl. 2; Sir Henry Ferrer's Case (1635), Cro. Car. 371 (addition of “knight” instead of “baronet” was fatal to the indictment).

14. It was, for instance, insufficient to charge an accused person with being communis latro, communis conspirator or communis malefactor; see Hale, P.C., ii, 182.

15. Fitz. Abridg., Enditement, pi. 27; Long's Case (1597), Cro. Eliz. 489, at p. 490. In an indictment for murder there had to be set out the weapon used and its value (because it was a deodand), in which hand it was held, the part of the victim's body in which the wound was inflicted, the nature and description of the wound, the date of the wound and the place where it was inflicted, and the date of death and the place where it occurred; it was also necessary to allege that the death was the result of the wound: Hale, P.C., ii, 185, 186.

16. See note 15.

17. Year Book, 13 Edw. IV, Pasch., pi. 5.

18. Year Book, 3 Hen. VII, Pasch., pi. 2. See, also, Thomas Buckler's Case (1552), Dyer 68b, and Year Book, 1 Ric. III, Mich., pl. 1.

19. See Hale, P.C., ii, 180, citing Thomas Buckler's Case (1552), Dyer 68b.

20. Co. Litt. 303a. See, also, Long's Case (1605), 5 Co. Rep. 120a, at p. 121a.

21. cf. R. v. Tucker (1693), 1 Ld. Raym. 1.

22. Hale, P.C., ii, 187.

23. Staunford, P.C., 96a.

24. Year Book, 9 Edw. IV, Trin., pi. 35.

25. See Ryle's Case (1603), Cro. Eliz. 920, where it was held that “ burgalariter“ for “ burglariter “ did not vitiate an indictment for burglary.

26. 37 Hen. VIII, c. 8.

27. As the result of legislation in the last century, the conclusion of an indictment has ceased to be of importance.

28. Hale, P.C., ii, 188.

29. Hale, P.C., ii, 170.

30. 4 Geo. II, c. 26.

31. The statute 14 & 15 Vic, c. 100, s. 24, provided that no objection was to be taken to an indictment on the ground that the word “statute” had been used instead of “ statutes “ or vice versa.

32. Hale, P.C., ii, 188.

33. Long's Case (1605), 5 Co. Rep. 120a, at p. 120b: “And indictments of felony, which are as counts and declarations for the King against the parties for their lives, ought to have certainty expressed in the record of the indictment, and shall not be supplied or maintained by intendment or argument. For if counts between party and party for land or chattels ought to have two things, scil. truth and certainty … a fortiori indictments, especially those which concern the life of a man … ought to have full and precise certainty.”

34. The court had the written document before it and treated it as they did any other written document; accordingly, the court refused to give it the meaning intended if it were capable of any other meaning (Long's Case (1597), Cro. Eliz. 489, at p. 490: “An indictment ought to be certain to every intent, without any intendment to the contrary”). This was done on the ground that when a man's life was at stake, as it frequently was, the utmost precision was required (see note 33).

35. The original indictment is in P.R.O., Baga de Secretis, pouch 7, bundle 3, which includes the “record” of the trial in which there is a copy that is not identical with the original. There are two other, imperfect, copies of a later date in B.M., MS. Arundel 152. The copy of the indictment in the “record” was partly calendared (in English) in Third Report of the Deputy Keeper of the Public Records (1842), App. II, 240, 241; there is also a calendared version in L. & P., vizi, no. 974. The original indictment, collated with the copies, is printed in full in Harpsfield, Life and Death of Sir Thomas More (E.E.T.S., 1932), 269-276.

36. E.g., Shebbeare, , Sir Thomas More (1930), p. 143 Google Scholar; Hutton, Sir Thomas More (1895), p. 263.

37. E.g., Hollis, , Sir Thomas More (1934), p. 284 Google Scholar; Mr. Hollis, however, seems uncertain whether there were two or three charges because although he states that “the two charges against him were these …”, when he sets them out he uses the words “first,” “secondly” and “thirdly.”

38. E.g., Paul, , Sir Thomas More (1953), p. 201 Google Scholar; Cecil, A Portrait of Thomas More (1937), p. 409; Potter, Sir Thomas More (1925), pp. 173, 174; Chambers, Thomas More (1935), pp. 336, 337, speaks of three “articles.” These writers are not in entire agreement as to what were the three charges.

39. E.g., Reynolds, , Saint Thomas More (1953), p. 341 Google Scholar; Farrow, , The Story of St. Thomas More (1956), p. 227.Google Scholar

40. E.g., Bridgett, , Life and Writings of Blessed Thomas More (1891), pp. 417–419 Google Scholar; although the indictment is there summarized at some length, the specific charge made against More is nowhere set out. Bremond, Sir Thomas More (1904), p. 194: “The accusation … is loaded with false charges and imaginary complaints.”

41. Sir Thomas Moore's Case (1535), 1 St. Tr. 1.

42. 26 Hen. VIII, c. 1.

43. 26 Hen. VIII, c. 13.

44. The relevant words of the indictment are: false, proditorie et maliciose … imaginons, inventons, practicans et attemptans, atque volens, et desiderans, contra legiance sue debitum, prefatum serenissimum dominum nostrum Regem de dignitate, titulo, et nomine suis supremi capitis in terra Anglicane ecclesie, depriuare … (see Harpsfield, op. cit., 270). These words follow the words of the statute, 26 Hen. VIII, c. 13, which have been quoted earlier. For the necessity of the words contra legiance sue debitum, see note 21, and for proditorie see note 22.

45. The averment setting forth these words is preceded by a phrase similar to that quoted in note 44.

46. For the full phrase, see note 44.

47. That is, the grand jury which found a true bill; the indictment begins with the words, Midd.’ Juratores presentant pro Domino Rege, quod …

48. In transcribing the indictment, the editors of Harpsfield's Life and Death of Sir Thomas Moore (E.E.T.S., 1932) have expanded the contraction so as to commit the draftsman to the word statutorum, in the plural; but see note 29 and the relevant text as to the convenient ambiguity of the contraction, which must have been very welcome to the draftsman in this case.

49. Sicque Juratores predirti dicunt, quod prefatus Thomas More false, proditorie, et maliciose, arte imaginauit, inventami, practicauit, et attemptauit prefatum serenissimum dominum nostrum Regem de dictis dignitate titulo et nomine supradicti status sui Regalis videlicet de dignitate titulo et nomine suis supremi capitis in terra Anglicane ecclesìe penitus depriuare, In ipsius domini Regis contemptum manifestum, et Corone sue regie derogacionem, contra formam et effectum statutorum predictorum [see note 48], Et contra pacem eiusdem domini Regis (Harpsfield, op. cit., 276).

50. This is the “ special venue “, for which see notes 18 and 19 and the relevant text. Examples in the indictment are: Idem Thomas adtunc et ibidem maliciose penitus silebat …; Prefatus Thomas More … adtunc et ibidem subsequencia verba anglicana dicebat, videlicet …

51. The editors of Harpsfield's Life and Death of Sir Thomas Moore, in the side notes summarizing the contents of the indictment, have darkened counsel by using such phrases as “the First Article”, “the Second Article”, etc., giving four “articles” in all. This was done, presumably, under the influence of the “Paris News Letter” which makes More himself refer to “articles”; e.g., “En tant que touche, deist-il, le premier article qui contient …” and the word has been translated in the calendars by the English word “article” (see L. & P., viii, no. 996; Spanish Cal., v, 180; Harpsfield follows the French and uses the word “article”); a better translation would, perhaps, be “averment.” It is interesting to note that although the Expositio Fidelis uses the word articulus, the Orda Condemnationis does not (see Acta Thomae Mori, ed. de Vocht, pp. 148 et seq.). cf. the “reconstructed text” of the missing original account of More's trial, printed in Derrett, “Neglected Versions of the Contemporary Account of the Trial of Sir Thomas More” in Bulletin of the Institute of Historical Research, vol. xxxiii (1960), pp. 202-223.