The Crown and Its Records: Archives, Access, and the Ancient Constitution in Seventeenth-Century England 9783110791464, 9783110791266

Table of contents :
Foreword and Acknowledgements
Contents
Introduction, focus, sources and method
Part One: The Institutional Background
1 English archives: The beginnings
2 Records mismanagement
3 Preservation, misplacing, destruction, and embezzlement
4 Specific record-keeping situations: Provincial and legal records
5 Arrangement and description: Inventories, calendars, and records editions
6 Attempts at reforming government records before 1640
7 The records in the Revolutionary era
8 The Restoration and afterwards
9 An ironic counterpoint: Sir Robert Cotton’s ‘private library’
Part Two: English Archives and the Seventeenth-Century Constitutional Controversies
10 Archives’ role in the constitutional debates, and the Whig theory of history
11 The English legal system in the seventeenth century and the permissions regime for the public records
12 The foundation of the seventeenth century: History, Reformation and the ‘Ancient Church’
13 History-writing, treason, and censorship
14 The Society of Antiquaries, primary source research, and the Ancient Constitution
15 Sir Edward Coke, Magna Carta, and records seizures
16 Parliamentary research orders
17 Sir Robert Cotton as archival research assistant to government and Parliament
18 John Selden: Archival research, legal history, and constitutional activism
19 William Prynne and the counter-revolution in the records editions
20 Epilogue to Part Two: The Civil War, the Tower records clerks, and espionage
Part Three: Secrecy and Access at the State Paper Office
21 Thomas Wilson’s appointment as Keeper: The political background
22 The establishment of the State Paper Office
23 Francis Bacon, George Villiers, and records classification
24 Practical problems at the State Paper Office: Records storage, Jacobean court intrigues, and money matters
25 The political uses of history and the Crown’s records
26 Records accessioning and power politics during Wilson’s tenure
27 Archives and intrigue: Wilson and the judicial persecution of Sir Walter Ralegh
28 The State Paper Office after Wilson
29 The Civil War and Interregnum
30 The Restoration, records seizures from Revolutionaries, and cataloguing
31 Official secrecy and research permissions
32 Use requests under James I
33 Use requests after the Restoration
Conclusion: English archives and the wider European context
Bibliography
Biographical note
Index of Persons

Citation preview

Isabel B. Taylor The Crown and Its Records

Cultures and Practices of Knowledge in History/ Wissenskulturen und ihre Praktiken Edited by / Herausgegeben von Markus Friedrich, Vera Keller und Christine von Oertzen

Volume / Band 13

Isabel B. Taylor

The Crown and Its Records Archives, Access, and the Ancient Constitution in Seventeenth-Century England

Die Juristische Fakultät der Eberhard Karls Universität Tübingen hat diese Arbeit im Jahre 2023 als Dissertation angenommen. Bibliotheksziffer D21.

ISBN 978-3-11-079126-6 e-ISBN (PDF) 978-3-11-079146-4 e-ISBN (EPUB) 978-3-11-079156-3 ISSN 2568-9479 Library of Congress Control Number: 2023940467 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2023 Walter de Gruyter GmbH, Berlin/Boston Cover image: TNA SP 45/20 f 92 r. Sir Thomas Wilson’s inventory of papers seized from Sir Edward Coke, 1622. Photo credit: Isabel Taylor Printing and binding: CPI books GmbH, Leck www.degruyter.com

Foreword and Acknowledgements I am extremely grateful to my doctoral supervisor Prof. Jan Thiessen for his unusual combination of enthusiasm, patience, and humour, which was a great support during all the unconnected stresses and upheavals that accompanied this project. Thanks are also due to the second examiner Prof. Wolfgang Forster and examination committee chair Prof. Stephan Dusil. I have been ably assisted by everyone involved at De Gruyter, particularly Prof. Markus Friedrich and the anonymous peer reviewer, and my considerate and meticulous editor Bettina Neuhoff. For useful conversations and/or help in locating sources, I thank Prof. Elizabeth Shepherd, Dr. Katy Mair at The National Archives, Prof. Asheesh Siddique, Geoffrey Yeo, Dr. Dietmar Schenk, and Hans Waalwijk. Particular thanks go to Prof. Rainer Hering for encouragement and stylistic pointers on an earlier draft, and to Michael Riordan for repeated helpful exchanges and sending me a text that was impossible to find in Germany. Anja Steinert assisted me by ordering many out of print books via interlibrary loan. To the colleagues, former professors, relatives, and friends who provided moral support throughout the process: space prevents me from listing you all, but as the saying goes, you know who you are. My collaborators at Albion showed great flexibility and camaraderie in helping me find ways to continue running the magazine while working full-time and finishing my doctorate. This book would never have developed without the late Prof. David Torrance’s inspiring Stuart lectures at Mount Allison University; all who benefitted from his dedication to British history and to teaching will forever miss him. I am also grateful to the late Prof. David Freeman for his warm-hearted mentoring in my early student days and for sharing with me his knowledge of Renaissance England. Prof. Luciana Duranti has encouraged my professional and academic endeavours throughout my archival career. Finally, I would like to thank my parents for unwavering belief and love.

https://doi.org/10.1515/9783110791464-001

By the rivers of Babylon we sat and wept when we remembered Zion. (Psalm 137:1) In fond memory of ‘Grandad George,’ George William Taylor (1912 – 1991). Loving family man through the air raids and beyond; displaced Cockney autodidact; London Underground accountant and paymaster; French speaker and rescuer of bewildered Gallic Tube travellers; devoted to Dickens, Proust, and us. Your tiny dancing partner is still working hard at her lessons.

Contents Introduction, focus, sources and method

1

Part One: The Institutional Background 1

English archives: The beginnings

2

Records mismanagement

3

Preservation, misplacing, destruction, and embezzlement

4

Specific record-keeping situations: Provincial and legal records

5

Arrangement and description: Inventories, calendars, and records editions 55

6

Attempts at reforming government records before 1640

7

The records in the Revolutionary era

8

The Restoration and afterwards

9

An ironic counterpoint: Sir Robert Cotton’s ‘private library’

11

20 26 44

66

85

105 118

Part Two: English Archives and the Seventeenth-Century Constitutional Controversies 10 Archives’ role in the constitutional debates, and the Whig theory of history 131 11 The English legal system in the seventeenth century and the permissions regime for the public records 140 12 The foundation of the seventeenth century: History, Reformation and the ‘Ancient Church’ 158

X

Contents

13 History-writing, treason, and censorship

169

14 The Society of Antiquaries, primary source research, and the Ancient Constitution 180 15 Sir Edward Coke, Magna Carta, and records seizures 16 Parliamentary research orders

194

208

17 Sir Robert Cotton as archival research assistant to government and Parliament 211 18 John Selden: Archival research, legal history, and constitutional activism 239 19 William Prynne and the counter-revolution in the records editions

287

20 Epilogue to Part Two: The Civil War, the Tower records clerks, and espionage 317

Part Three: Secrecy and Access at the State Paper Office 21 Thomas Wilson’s appointment as Keeper: The political background 327 22 The establishment of the State Paper Office

338

23 Francis Bacon, George Villiers, and records classification

348

24 Practical problems at the State Paper Office: Records storage, Jacobean court intrigues, and money matters 351 25 The political uses of history and the Crown’s records

368

26 Records accessioning and power politics during Wilson’s tenure

377

27 Archives and intrigue: Wilson and the judicial persecution of Sir Walter Ralegh 388

Contents

28 The State Paper Office after Wilson

399 405

29 The Civil War and Interregnum

30 The Restoration, records seizures from Revolutionaries, and cataloguing 409 31 Official secrecy and research permissions 32 Use requests under James I

418

424

33 Use requests after the Restoration

432

Conclusion: English archives and the wider European context Bibliography

452

Biographical note Index of Persons

472 473

438

XI

Introduction, focus, sources and method Despite a recent increase of interest in Continental European archival history, the earlier history of the English central archival system has been surprisingly underresearched, with the exception of three notable recent essays by Michael Riordan and Kate Peters.¹ (For the period after 1800, encompassing the founding of the Public Record Office in 1838 – precursor of The National Archives – and the twentieth century, there are two excellent but institutionally-focussed histories by John D. Cantwell.)² Some of the very few secondary sources available on the earlier era are lacking in detail and accuracy. In 2013, for example, Riordan noted that Hubert Hall’s Studies in English Official Historical Documents from 1908 was still “The best history of the State Paper Office,” but, as this book will show, it is opinionated and contains occasional errors of fact.³ There have since been no book-length attempts to reconstruct the early history of the English archival system, and this work undertakes to fill this gap, examining English archives in their political, power-political, and constitutional contexts. The linchpin of this book is therefore ‘Archiv-alsPolitikum.’⁴ Markus Friedrich’s groundbreaking Die Geburt des Archivs has a panEuropean focus and contains some material on England, often drawing on Michael Clanchy’s classic From Memory to Written Record, which, as Friedrich observes, does not concentrate in depth on English archives.⁵ The emphasis in the meagre secondary literature concerning English archival history has been on the development of Schriftlichkeit (the convention of making written records), attributable to Clanchy’s great influence, rather than on the organisation of written materials, investigated in the German context by Papritz (among others).⁶ Archives, in the popular imagination, are often seen as obscure, liminal, dusty spaces. It is therefore perhaps not surprising that the involvement of English archives – both public and nominally private – in providing precedents for the constitutional-political struggles of the seventeenth century, and the direct involvement of archives-keepers in the latter, have never been examined at length and in depth.

1 Riordan, “‘The King’s Library of Manuscripts’” (2013); Kate Peters, “‘Friction in the Archives’” (2018); Riordan, “The State Papers and the Writing of History in Early Seventeenth Century England” (2019). 2 Cantwell, The Public Record Office, 1838 – 1958; The Public Record Office, 1959 – 1969. 3 Riordan, “‘The King’s Library of Manuscripts,’” p. 192, fn. 6. 4 Thanks to Prof. Jan Thiessen for suggesting this useful summary. 5 Friedrich, Die Geburt des Archivs, p. 19. 6 Schenk, Aufheben, was nicht vergessen werden darf, p. 62, fn. 37. https://doi.org/10.1515/9783110791464-002

2

Introduction, focus, sources and method

The history of archives was, until recently, dominated by the example of the French Revolution, widely perceived to have invented the ‘modern’ archive. The tendency to generalise from the particular French experience has probably helped to discourage research on other national and regional archival histories. However, the comparatively slow development of English archival history can additionally be attributed to the great influence of Foucault and Derrida’s postmodern archival theory, postulating the ‘archive’ as a hegemonic, monolithic mechanism of repression – of documents, secondary discourse, and ‘subaltern’ groups – which has frequently been understood as a statement about the reality of archival institutions themselves.⁷ This has fostered an insufficiently differentiated approach to individual archives in their unique contexts, and, most particularly, created a blind spot for the involvement of archives and archives-keepers in politically subversive activity. An often complementary tendency has been identified by de Vivo in the recent archival-historical writing, “especially […] when focusing on state records,” to take on the exclusive perspective of “the authorities,” which, he notes, risks producing only “a more erudite variant of traditional institutional history.”⁸ Recent historical research on archives in the Continental European context has yielded a range of richly detailed case studies of individual early modern archives or archival systems, particularly for the Spanish and Italian contexts (examined by Silvestri, Guidi, and de Vivo), and Head’s work on the German-speaking lands. In particular, in his re-evaluation of the Venetian State Archives, de Vivo demonstrates the insight that can be attained when the ‘Establishment’ narrative is questioned or abandoned.⁹ The Italian examples, similar to the case of Revolutionary France, strongly suggest that the political and constitutional contexts of archives shape their development. Where possible, this book attempts to draw out similarities between its findings and the current research on Continental archives, as a first step towards contextualising English archives within a broader European world. This study addresses the involvement of archives during the key period of English constitutional history, the seventeenth-century struggle between a Stuart Crown fixated on its prerogative powers and a Parliamentary opposition devoted to the principle of the ancient English constitution balanced between King and Parliament. The examination of the role of archives in this confrontation will shed new light on the historicist nature of this conflict, and the extent to which it 7 Kingston, “The French Revolution and the Materiality of the Modern Archive,” p. 1; Head, “Mirroring governance,” p. 319; Makleff, “Sovereignty and Silence,” p. 12; Walsham, “The Social History of the Archive,” p. 11. 8 De Vivo, “Heart of the State, Site of Tension,” p. 462. 9 De Vivo, “Heart of the State, Site of Tension.”

Introduction, focus, sources and method

3

was fuelled by painstaking and detailed primary source analysis. In doing so, it will highlight the previously under-discussed contribution of archival research to the famous “common law discourse” on the English constitution and the way these constitutional debates in turn encouraged this research.¹⁰ Given its specialised topic, the book has no pretension to a comprehensive discussion of the ‘Causes of the English Revolution’ and the associated historiography. Economics and religion are (mostly) occluded, with no concentration on Puritan activism or the ‘storm over the gentry,’ nor the battles between Whigs and Marxists, Revisionists and Post-Revisionists. With its focus on constitutional controversy and records of national importance, this study is necessarily London-centric, although it is important to emphasise that many of the key figures in this narrative – such as Selden, Cotton, and Prynne – were from the provinces. (Indeed, the Inns of Court, the primary institution of legal education, attracted local gentry who remained in contact with them and thus became familiar with antiquarianism, while many London record-keepers maintained an active interest in their native regions.)¹¹ Part One investigates the genesis of English archives, the background conditions of storage and retrieval which shaped archival work and access, and the various governmental attempts at reforming the archival system and their political significance. Part Two posits a theory as to why the specific role of archives in the constitutional struggles between King and Parliament has been largely overlooked, and examines the contemporary English legal system and regulation of access to the ‘public records,’ as well as developments in antiquarianism and politicised historical research in the context of the Reformation and official censorship. It then moves on to investigate the direct use of archives in the seventeenth-century constitutional debates via the career of the judge Sir Edward Coke (‘the father of the common law’) and the biographies of three individuals who were, at various points, involved in keeping archives: Sir Robert Cotton, John Selden, and William Prynne. It concludes with an analysis of a little-noticed account of the political and constitutional activities of William Ryley senior and junior, two employees at the Tower of London public records repository who took it upon themselves to furnish their sovereigns with politically useful precedents during the Civil War and Restoration. Overall, Part Two reveals the immediate involvement of archives-keepers and archival sources in the seventeenth-century constitutional tur10 Christianson, Discourse on History, Law, and Governance in the Public Career of John Selden, 1610 – 1635, p. 4 – 5, p. 212. 11 Broadway, ‘No Historie So Meete,’ p. 38, 57. Broadway’s book provides a detailed study of provincial records and local historical practices, which are mentioned in The Crown and Its Records only in passing.

4

Introduction, focus, sources and method

moil, against a backdrop of more general power-political uses of archives and interventions by archives-keepers. Finally, Part Three analyses a very different archival world, the King’s own private State Paper Office, investigating its restrictive access regime as a point of contrast with that of the ‘public records,’ its uses as a centre for intelligence gathering, and the intimate involvement of its most prominent Keeper, Sir Thomas Wilson, in high political and judicial intrigue on behalf of the Crown. The sources used for this book are predominately primary. These include the internal papers of the State Paper Office, reports of Parliamentary debates, and the diaries and memoirs of Pepys and Aubrey. The primary sources also comprehend various types of institutional literature generated by archives personnel from the seventeenth to nineteenth centuries: the Calendars of State Papers for the Jacobean and Caroline eras, finding aids, and records editions, as well as first-hand reports and reminiscences. Because the conditions in the archives were only properly reformed in the nineteenth century, later institutional reports often contain observations directly relevant to the early modern era.¹² Further, narrative histories (such as Bayley’s) often contain lengthy extracts from primary sources and anecdotal evidence, and can be cited alongside extensive compilations of primary sources for archival history such as F. S. Thomas’s Notes of Materials for the History of Public Departments. The primary sources include the constitutionalist and legal writings of men who were archives-keepers, whether full-time or at various points in their careers as lawyers and Parliamentarians. While some of these primary sources have been used in part by other studies, they have not yet been minutely examined within the contemporary political and constitutional context. By conducting an in-depth analysis that draws these various disparate primary sources together, it is possible to make many previously unnoticed connections.

A note on terminology In England, in contrast to other countries (such as Canada), legal research monopolised archivists’ attention far into the twentieth century, because of the inefficient and incomplete land registry system.¹³ The practical problems of proving title in this situation, combined with the extremely complicated nature of English property law – particularly conveyancing, the passing of title from one party to another – 12 Friedrich observes a similar continuity (or neglect) from the early modern era into the nineteenth century in the Continental European archival world. Friedrich, Die Geburt des Archivs, p. 280. 13 Taylor, “Archives in Britain and Canada,” p. 23 – 24.

A note on terminology

5

meant that English archivists were chiefly preoccupied with locating title to property, which involved organising and interpreting court records and great quantities of title deeds.¹⁴ Under these trying circumstances, the rich and significant contributions of English archivists to history and archival science represent something of a wonder.¹⁵ The legal influence on English archives was not confined to investigating property tenure, however. The central archival repositories as well as the local record offices developed out of the system of law courts.¹⁶ As a result, “The primary reason for preserving records of all kinds for centuries was a legal reason in England, not a historical one.”¹⁷ This had an enduring effect on English archival terminology (particularly marked in the period under investigation) in the form of a very specific meaning of the term ‘record.’ In modern archival science and records management, ‘record’ is used in a fairly broad sense: “Information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business.”¹⁸ By contrast, the seventeenth-century English understanding of ‘record’ was a document produced by a ‘court of record.’¹⁹ This specific category of courts had emerged during the Middle Ages as those which were allowed to issue sentences of fines or corporal punishments and had to “record their judgements in Latin” and enrol them (i. e. join the pieces of parchment on which they were written into a roll), so as “to create an incontrovertible record of proceedings that could be used in a process of appeal, and transferred for use in other courts.”²⁰ Courts of record, as distinguished from lesser courts, enjoyed a pre-eminent place in the English legal system, shown by the prestige of the ‘records’ that they produced, which were “of the utmost authority at law.”²¹ It is important to emphasise that courts of record were exclusively courts of common law: courts that employed civil law principles (such as church courts) were argued in the seventeenth century to be incapable of producing ‘records.’²² It is therefore no coincidence that the period under ex-

14 Taylor, “Archives in Britain and Canada,” p. 23 – 24. 15 Taylor, “Archives in Britain and Canada,” p. 24. 16 Taylor, “Archives in Britain and Canada,” p. 22 – 23; Fussner, p. 32. 17 Fussner, The Historical Revolution, p. 32. 18 International Organization for Standardization. Information and Documentation: Records Management. 15489 – 1, Part 1, cited in the Multilingual Archival Terminology database. 19 Fussner, p. 32. 20 Kate Peters, p. 157. 21 Fussner, p. 32; see also Yeo, “Let Us See What Is Meant by the Worde Recorde,” p. 10 (this essay contains a detailed analysis of the evolution of the concept of legal record and of the English court system over the course of the Middle Ages and into the early modern era). 22 Yeo, p. 22 – 23.

6

Introduction, focus, sources and method

amination saw the rise to supremacy of both the common law and the ‘records’ of its highest courts. Sir Edward Coke, the champion of the common law, emphasised that such a ‘record’ “hath a sovereigne privilege, that it is proved by no other but by it selfe.”²³ (Emphasis added.) In other words, a ‘record,’ alone, was sufficient evidence in a court of law – a claim of incontrovertibility that was being extended in the sixteenth and seventeenth centuries to one of absolute truth.²⁴ It is important to note that by the seventeenth century, the status of Parliament as not just a court but the pre-eminent court of record was a vital principle. In the late Tudor era Sir Thomas Smith situated Parliament at the peak of the judicial order, “the highest and most absolute Court of Record in the kingdom,” and Coke described Parliament (specifically the Commons) as a Court of Record.²⁵ Not all documents produced by a court of record were automatically ‘records.’ The enrolment requirement was absolutely indispensable for a document to have the evidential force of a ‘record.’ As Coke made clear, “Recordum is a memorial or remembrance in Rolls of Parchment of the proceedings and acts of a Court of Justice.”²⁶ This definition of ‘record’ sometimes expanded to include deeds enrolled by a court of record.²⁷ These formal requirements might seem arcane, but their sacrosanct role in the creation of a ‘record,’ and the scandal of records forgery, would play an important part in the reverberations from the Five Knights’ Case and the lead-up to (and fall-out from) the Petition of Right. Even at the time, however, a degree of ambiguity was evident in the use of the term ‘record’ in the archival context. The presence of numerous ‘records’ (in this restrictive legal sense) in the officially public repositories seems to have led to all the documents in those repositories being referred to, probably for convenience, as ‘the public records’: an elastic meaning of ‘record’ which existed alongside a widespread appreciation of the narrower legal understanding.²⁸ Fussner emphasises that “the ‘public records,’ then as now, comprised much more than the exclusively legal records of the King’s courts of common law and Chancery.”²⁹ Nevertheless, the legal understanding of ‘record’ overshadowed this more general shorthand, and shaped the thinking of the legally-trained archives-keepers whose biographies are examined in this book. It is important to be alert to the confusions that could be caused by the use of ‘record’ in the legal sense. F. S. Thomas, for example, writ-

23 24 25 26 27 28 29

Fussner, p. 32. Yeo, p. 15. Thomas, Notes of Materials, p. 114. See also Yeo, p. 23 – 24. Coke, quoted in Thomas, Notes of Materials, p. 113. Yeo, p. 19. Fussner, p. 33; Walsham, p. 14. Fussner, p. 33.

A note on terminology

7

ing in the nineteenth century, had a broader, more archival understanding of ‘record,’ and deplored “the disposition which has occasionally been found to deny the character of Records to documents not having the technical character of judicial records.”³⁰ Here the danger of confusing a legal with an archival understanding of ‘record’ becomes clear – the insistence on formal requirements can exclude non-enrolled documents from the class of ‘records’ understood in the sense of ‘historical records.’ Thomas himself uses the term ‘Public Records’ to “comprise all documents of every description which belong to Her Majesty in right of Her Crown,” with ‘records’ in the legal sense forming only one subset of these.³¹ The usage of ‘records’ in this book follows this more modern, archival practice. Where it is clear that the legalistic meaning of ‘record’ is at issue, this is highlighted. A further terminological clarification is necessary at this point. There were two main groups of documents as classified by early modern archives-keeper Arthur Agarde in the Jacobean age: the “arcana imperii […] concerned with ‘matters of estate and the crown only,’” viewed as “the private muniments of the King, his courts, and his government” and only accessible “by very special grace and favour,” and all the rest, “which concerned both the interests of the Crown and the rights, tenures, and titles of the subject” – the ‘public records.’³² The State Paper Office was designated for the arcana imperii, while the other central London repositories, notably the Tower of London, contained the latter.³³ Of this “second group” only “the more formal legal and financial documents,” i. e. those that were “matters of record in the strict legal sense,” were ‘public’ in “that the public had reasonably ready and regular access […] upon payment of fees.”³⁴ (However, Agarde’s research fee regime, as discussed later, suggests that this may be inaccurate in that the public appear to have been given unrestricted access to the great masses of unprocessed materials, which probably included some documents outside this class.) The meaning of the term ‘public records’ is itself unfortunately ambiguous: ‘public’ was sometimes used to mean little more than ‘belonging to the government’ rather than ‘accessible to the people,’ a definition which encompassed even the Crown’s private arcana imperii. ³⁵

30 31 32 33 34 35

Thomas, Notes of Materials, p. 113. Thomas, Notes of Materials, p. 115. Wernham, “The Public Records in the Sixteenth and Seventeenth Centuries,” p. 11 – 12. Fussner, p. 71. Wernham, p. 11 – 12, also quoted in Fussner, p. 69. Wernham, p. 11.

8

Introduction, focus, sources and method

Arcana imperii meant not only ‘the Crown’s private documents,’ but also ‘mysteries of state’ or ‘state secrets,’ into which the subject should not enquire.³⁶ This key idea of early modern politics would be invoked by Attorney-General Heath – to great outrage – in the seminal Five Knights’ Case. The arcana imperii counterintuitively included the records of Parliament, which explains why the eighteenth-century edition of the Parliamentary rolls was not intended for public consumption.³⁷ (This attitude may not have been stable over time: Wernham asserts that “the subject had fairly ready access to Acts of Parliament enrolled on the Parliament rolls, but both Houses repeatedly asserted that the journals of their proceedings were strictly private and secret.”)³⁸ Secrecy concerning Parliamentary records seems baffling from a modern democratic perspective, but there was a drive to protect Parliamentary procedure from inquisitiveness in the sixteenth century – though “It was not originally the ‘public’ that was supposed to be denied the information about the parliamentary discussions but the king.”³⁹ In this book, however, arcana imperii is used to refer to the contents of the State Paper Office, and ‘public records’ to the documents in the other London repositories (the Tower, the Westminster ‘Four Treasuries,’ and Rolls House), which included the records of the common law courts of Exchequer, Common Pleas, and King’s Bench, and the equitable court of Chancery.⁴⁰ This is not meant to imply any foregone conclusion as to the accessibility or ‘public’ nature of all the records in this group, but does convey that these repositories were far more open to the public than the closed State Paper Office. Finally, a third, less complicated terminological point must be made. Many secondary sources describe archives-keepers of the seventeenth century as ‘archivists.’ However, the research for this book has revealed that, on the whole, this usage suggests anachronistic modern professional standards. Instead, the more neutral term ‘archives-keeper’ has been used throughout.

36 37 38 39 40

Burgess, The Politics of the Ancient Constitution, p. 193. Riordan, “Materials for History?”, p. 63. Wernham, p. 12. Elukin, “Keeping Secrets in Medieval and Early Modern English Government,” p. 124. Fussner, p. 70 – 71.

Part One: The Institutional Background

1 English archives: The beginnings Clanchy compared Anglo-Saxon archives with the contents of “an old lady’s handbag”: jumbled collections of jewellery and mementoes in addition to a few documents, often kept in shrines.¹ For example, it is known that charters were preserved in the royal haligdom (“probably the sanctuary associated with the chapel royal”), located either at Westminster or Winchester and not to be viewed as an “administrative archive” but rather as “a depository of sacred documents for posterity.”² Before 1066, records survived only if they were contained in such an ecclesiastical repository.³ Throughout the Middle Ages and particularly during the Anglo-Saxon period there was no clear boundary between documents and books, since important records were often copied into liturgical volumes – exquisitely bound, passed down through families, and part of the Anglo-Saxon ruler’s treasure.⁴ Decentralised storage of books and documents was favoured for security reasons, and the Anglo-Saxon practice of preserving official copies of important documents in different places was continued by Norman administrators, who copied, sealed, and deposited the Plantagenet Henry II’s testament in three locations, including Canterbury and Westminster.⁵ The notion of a central archival repository at the King’s Treasury (Exchequer) developed only very slowly.⁶ Under Henry II in the twelfth century, significant centralisation occurred “with the predominance of the royal courts” (Common Pleas and King’s Bench, along with the judicial divisions of the Chancery and Exchequer, and the provincial circuit courts); the era also saw the development “of a system of detailed record keeping in both administrative and legal affairs.”⁷ The records of this mediaeval period can be divided into four categories: the financial records such as “the pipe rolls” of the Exchequer, the administrative records of the Chancery (including the charter, patent, and close rolls), the court records (i. e. the plea and fine rolls), and the legislative records in the form of the Parliament and statute rolls.⁸ Beginning in the Tudor period a fifth category can be added, ‘State Papers,’ discussed later in greater detail but containing documents including treaties with foreign

1 2 3 4 5 6 7 8

Clanchy, From Memory to Written Record, p. 191. Clanchy, p. 191. Yax, “Arthur Agarde: Elizabethan Archivist,” p. 57. Clanchy, p. 190. Clanchy, p. 192. Clanchy, p. 192. Toomer, John Selden: A Life in Scholarship, p. 51, also fn. 132 on p. 51. Toomer, p. 52.

https://doi.org/10.1515/9783110791464-003

12

1 English archives: The beginnings

powers and official proclamations.⁹ The only class of records that was customarily printed was the statutes, published at the end of every parliament beginning with the reign of Henry VII, while the Crown sometimes also chose to publish “recent treaties with foreign states.”¹⁰ The magpie approach described by Clanchy persisted for a surprisingly long time. Sir Francis Palgrave begins the second volume of his collection of ancient finding aids with various memoranda of the contents of the Treasury of the Exchequer, written in a mixture of mediaeval Latin, Norman French, and middle English, in which records are mixed up with treasures given to the Crown by the Catholic Church. Apparently to commemorate the first year of Henry V’s reign, Bishop (later Cardinal) Henry Beaufort delivered to the Treasurer and Chamberlains of the Exchequer approximately twenty-four different kinds of jewels and treasures, detailed in a long list ranging from a ten-pointed diadem encrusted with garnets, sapphires and emeralds to “ii petitz pottes d or,” and “xv holowe disshes ovec i saucer d arg[ent] dorrez,” and concluding with the remark “Les queux jewelx remaynaut in la gaunde Tresory nre ts Sovayne Sr le Roy deins Westmynstre.”¹¹ Palgrave noted in 1831 that the practice of keeping the records together with the state treasure, “the regalia, jewels, and other articles of curiosity or value antiently deposited in the Treasury” and described in old inventories together with the records, was indeed “not entirely discontinued in the present day.”¹² During the Restoration William Prynne, Keeper of the Tower of London records repository, alluded to the practice in a verbose and legalistic appeal to Charles II for better preservation standards: I presume it will be your Majesties especial care (as it was your Royal predecessor’s) to preserve these ancient records not only from fire, sword, but water, moths, canker, dust, cobwebs, for your own and your kingdom’s honor, service, they being such sacred reliques, such peerless jewels, that your noble ancestors have estimated no places so fit to preserve them in as consecrated chapels, or Royal treasuries and wardrobes, where they lay up their sacred crowns, jewels, robes, and that upon very good grounds, they being the principal evidences by which they held, supported, defended their Crowns, kingdoms, revenues, prerogatives, and their subjects their respective lands, lives, liberties, properties, franchises, rights, laws.¹³

9 Toomer, p. 52. 10 Toomer, p. 52 – 53. 11 Quoted in Palgrave, Antient Kalendars, Vol. II, p. 163 – 167. 12 Palgrave, Antient Kalendars, Vol. I, p. ii, p. xiv. 13 Prynne quoted in Thomas, Hand-Book to the Public Records, p. xix.

Two red herrings

13

Two red herrings: Domesday Book and the Venerable Bede’s History of the English Church and People William of Normandy’s Great Survey of landholding in England and part of Wales has loomed so large in English consciousness that it often skews the historical perspective on bureaucracy and archives in general, giving an impression of advanced administration and careful preservation of records at odds with the reality. Sir Joseph Ayloffe (a Keeper of the State Paper Office) in 1774 highlighted the Conqueror’s special “zeal for the preservation and perpetuating of a work which was then esteemed to be of the utmost importance to the crown and to the public, and which had been formed from inquisitions taken by his justices or commissioners with […] care and exactitude.”¹⁴ Its totemic status is also suggested in a passage from a seventeenth-century finding aid attributed to Arthur Agarde and Thomas Powell: “In searching the Booke of Domesdei, is to bee avoyded, laying bare hands or moysture, vpon the writing thereof, and blotting.”¹⁵ In the context of this passage, Peters notes that Domesday was very heavily used.¹⁶ Its continuing importance is shown by the fact that it was selected by the House of Lords to be printed and disseminated to various institutions in 1783, so as to make it available for historical research.¹⁷ Most unusually, while Domesday was not created by a court of record, it appears to have enjoyed the status of a legal ‘record,’ with a long-standing consensus from the twelfth century onwards “that its contents could not be challenged or controverted.”¹⁸ (This, however, significantly predated the development of the later concept of ‘record’ as previously described in A Note on Terminology.) As suggested by its name, the Domesday project, which symbolised William’s regime change, had apocalyptic associations with terrifying religious portrayals of the Last Judgment, aimed at subduing and intimidating his new subjects.¹⁹ This helps to explain the painstaking attention given to recording every cow, chicken, and hive of bees in the initial “Little Domesday” survey of Norfolk, Suffolk and Essex: it creates the impression of the monarch as all-seeing and all-powerful.²⁰ The first known written work on English bureaucratic administration, the 1180 Dialogue Concerning the Exchequer by Richard FitzNeal, focusses chiefly on the

14 Ayloffe, Calendars of the Ancient Charters, p. xviii; Lee, “Ayloffe, Joseph.” 15 Agarde/Powell, The Repertorie of Records, p. 132, also quoted by Kate Peters, p. 162, and Hallam, “Arthur Agarde and Domesday Book,” p. 254. 16 Kate Peters, p. 162. 17 Riordan, “Materials for History?”, p. 63. 18 Yeo, p. 21. 19 Clanchy, p. 41. 20 Clanchy, p. 186.

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business methods and documentation – including the famous pipe rolls – of the king’s treasury department the Exchequer. This, as Elton explains, was the “financial department of state […] developed as a separate institution in the later twelfth century” and divided into the exchequer of receipt (“where the money was received, stored, and disbursed”) and the exchequer of audit (“where accounts were audited and unpaid sums driven in”).²¹ Amongst the abstruse details on the proper forms of writs and summonses and whether a hawk brought to the Exchequer as payment should have moulted or not, FitzNeal evokes the strange, quasi-religious status of Domesday Book, along with William’s conscious project of establishing his overlordship.²² FitzNeal describes a three-stage process that begins with violence – the Conquest itself, guerrilla warfare, vicious reprisals, and torture – continues with legal system reform, and concludes with a show of administrative power underpinned by religious symbolism. After having “subdued the utmost limits of the island to his rule, and […] tamed the minds of the rebels by examples of terrible things, he decreed, lest a free opportunity of erring should again be given, that the people subject to him should submit to written custom and laws.”²³ FitzNeal goes on to describe how William evaluated English law in its “triple distinction” of Mercian, Dane, and West Saxon, from which he selected those laws that he found acceptable, adding some of “the transmarine laws of Neustria” (the Western part of the Frankish realm) which seemed to him “most efficacious for protecting the peace of the kingdom.”²⁴ The Great Survey itself contains “a diligent description of the whole land […] in common words,” divided according to the administrative units of the county, hundred, and hide, and demonstrating in each case William’s feudal hegemony: “the name of the king […] marked at the very head, and then […] the names of the other lords […] that is to say, those who are tenants in chief of the king.”²⁵ There was even an indexing or cross-referencing system in which numbers placed beside the names of individuals allowed “whatever concerns these persons” to be “more easily found” throughout the book: a very early use of a centralised information apparatus to administer a local population. That it succeeded in subduing them is suggested by FitzNeal’s comment that “This book is called by the natives Domesday; that is, by metaphor, the day of judgment,” since its record is as final as “a sentence of that strict and terrible last trial,”

21 22 23 24 25

Elton, England Under the Tudors (Folio Society edition), p. 55. FitzNeal, “The Dialogue Concerning the Exchequer.” FitzNeal. FitzNeal. FitzNeal.

Two red herrings

15

which “cannot possibly be eluded by any art of tergiversation.”²⁶ The Last Judgment resonances become especially clear when FitzNeal explains that those Anglo-Saxon nobles who were able to retain their estates did so not on the basis of pre-Conquest heredity but their ‘merits’ as determined by the Conqueror (i. e. they had not resisted the invasion by military means).²⁷ Now the Conqueror’s survey is to have the last word, forever, on any matter of legal contention. “On this account we have named this book the hoof of dooms […] from it, as from a judgment that has been given, it is not allowed in any way to depart.”²⁸ Domesday is a picture of judicial finality and a conquered England fixed in amber, a super-precedent without the possibility of future development, but as Clanchy notes, “no single book could finalize everyone’s rights and stop change from happening.”²⁹ The Dialogue, incidentally, anticipates later constitutional disputes when FitzNeal dismisses any sort of subjects’ right to oppose non-consensual revenue raising: although sometimes monarchs’ rights and revenues are obtained “through the secret designs of their own hearts, or occasionally through the arbitrariness of their own sole will, nevertheless their acts are not to be discussed or condemned by their subjects.”³⁰ There is an analogy to be drawn between Domesday Book as an example of unusual care in records preservation, and the equally anomalous case of the Venerable Bede as historian. Bede’s use of written records alongside oral history as sources for The History of the English Church and People has become famous.³¹ Indeed, his obtaining of papal correspondence through the London priest Nothelm’s visit to the Vatican archives (the contact between Northumbrian Bede and Southerner Nothelm had been facilitated by Bede’s friend Abbot Albinus of Canterbury) may seem startling considering that the History was written in approximately 731, long before the Conquest.³² (However, Anglo-Saxon people often made such inquisitive pilgrimages to Rome, “returning with books and accumulated knowledge.”)³³ The episode should be interpreted in the context of a wider Anglo-Saxon literary habit of quoting, borrowing from and alluding to a rich range of textual sources, whether memorised, or copied in the numerous “impressive libraries” of the

26 27 28 29 30 31 32 33

FitzNeal. FitzNeal. FitzNeal. Clanchy, p. 42. FitzNeal. Bede, The History of The English Church and People, p. 3 – 4; see e. g. Yax, p. 58. Bede, p. 3 – 4. Orchard, “Language, Learning and Literature,” p. 37.

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time.³⁴ This convention, especially the fondness for inserting poetry into prose works, may have been another expression of a cultural preoccupation with adornment.³⁵ However, the frequent referencing of Bede’s precocious research methods can give the impression that actual historical analysis of primary written sources began very early on – although Bede credulously repeats various miracle stories, and does not appear to rank written records over oral testimony.³⁶ Piggott has observed that overall, “medieval antiquarianism” is the exception, and that “antiquarian studies as such” only come into their own in the sixteenth century.³⁷ The widespread emphases on Domesday Book and Bede, which distort perceptions of English archives and historiography, are probably attributable to the lingering influence of the Whiggish ‘greatest hits’ mentality examined at the beginning of Part Two.

The movable court, records, and the Church In the Middle Ages certain practices led to considerable disorder, so that the early official role of the Exchequer in presiding over the custody of government records cannot be taken as an indication of adequate physical control and tidy centralisation.³⁸ One such practice was the mediaeval movable court, which met in places outside the capital: Ayloffe explains that records “may have been lost by the frequent carrying them from town to town, as was the customary practice during that period, in which the exchequer, the chancery, and the sovereign court of ordinary judicature, then stiled curia regis, followed, and were kept at the court or place of the occasional residence of the king.”³⁹ The actual transport of the records by horse was usually delegated to “some abbot and convent,” although in the reign of Henry III the official Sumpter Horse were used to carry the Chancery rolls. The involvement of the Church is not as illogical as it first appears, since, as previously noted, ecclesiastical institutions provided secure records storage.⁴⁰ Indeed,

34 35 36 37 38 39 40

Orchard, p. 34. Orchard, p. 34. Berlin, “Bede’s Miracle Stories,” p. 434. Piggott, “Antiquarian Thought in the Sixteenth and Seventeenth Centuries,” p. 98. Bayley, The History and Antiquities of the Tower of London, Part 1, p. 236. Ayloffe, p. vi. Thomas, Notes of Materials for the History of Public Departments, p. 148.

The movable court, records, and the Church

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the Chancellor himself was also the head of the “Chapele de Roy,” and often set up his writing office “in Chapels and Cathedrals” while on the road.⁴¹ Movable courts had distinct inconveniences when it came to accessing records left behind in London: while Edward I was in Scotland in 1291, the year in which he essentially coerced the Scottish nobles into accepting his overlordship, the Chancery Records were located at the New Temple.⁴² Edward had to order his Treasurer to open up a locked chest and send him a Patent Roll from 1255 together with a Charter Roll from 1238 – however, both of these records, according to Thomas, were returned the following year.⁴³ During the Scottish Wallace Rebellion in 1298, Edward strategically moved his court and military forces to York to be within striking distance, and on his return to London “commanded the abbot of Furness” to dispatch “a strong and steady horse to carry his rolls of chancery” to his Chancellor John de Langeton at York.⁴⁴ Similarly, Edward III in the sixth year of his reign required “the abbot and convent of Beaulieu […] to provide a horse for the like purpose,” but when the unfortunate creature arrived escorted by a monk, it was found to be “insufficient” and the abbot was required to replace it with a better one.⁴⁵ The next year Edward decided to invade Scotland, took the courts and parliament to York, and required the abbot and convent of Stratford to provide “a sumpter horse and servant” to convey “the rolls, writs, and memoranda, from his treasury in the Tower of London, to York.”⁴⁶ In 1392 Richard II moved the judicial courts to York by proclamation, so that “all writs original and judicial were made returnable there,” and three Crown servants were detailed to “arrest and take such and as many horses and carts as would be sufficient for the carriage of the rolls of chancery from London to York,” by way of Lenton, Nottingham, under “a strong escort” – a phrase which points to the dangers of such a journey undertaken in the Middle Ages.⁴⁷ The records were moved back to London, apparently in the following year, and the total combined cost was approximately £70,000 in today’s money.⁴⁸ In 1399 it was decided to convene Parliament at Shrewsbury, so that it was necessary to move the chancery rolls there from London and back again.⁴⁹ There are numerous additional examples from Ri-

41 42 43 44 45 46 47 48 49

Thomas, Notes of Materials, p. 148. Bayley, p. 226; Thomas, Notes of Materials, p. 148. Bayley, p. 226; Thomas, Notes of Materials, p. 148. Bayley, p. 226 – 227. Bayley, p. 227. Bayley, p. 226 – 227; Thomas, Notes of Materials, p. 148. Bayley, p. 227– 228. Bayley, p. 228. Bayley, p. 228.

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chard II until the reign of Edward IV “of abbots and convents being directed to provide a horse to carry the rolls and memoranda of chancery,” but none of these orders specify whither, or whence, the records were transported.⁵⁰ Inadvertent records removals could also occur in the ordinary chaos of the Middle Ages. When Edward II was in flight from the invasion forces of his wife Queen Isabella (“the She-Wolf of France”) in 1326, he appears – perhaps understandably – to have forgotten the 1303 engagement contract between himself and Isabella in Swansea Castle, after strong winds forced his boat to land in Swansea Bay.⁵¹ It was rediscovered in the nineteenth century by a Mr. George Grant Francis of Burrows Lodge, Swansea.⁵² This is simply a particularly interesting example of a common problem: that is, itinerant monarchs forgetting records in the various castles where they had stayed.⁵³ English rulers were far from alone in their habit of wandering with records. Mediaeval popes, who spent most of their time travelling around the various Papal States, were reliant “on mobile archives,” so that Papal documents were eventually scattered across “several cities, including Avignon.”⁵⁴ Similarly, even after the establishment of archival repositories at various monasteries, the mediaeval Aragonese Crown continued to take “a huge amount of documentation” on its peregrinations across its territories.⁵⁵ The involvement of abbots and convents in supplying records transports underscores the extent to which the government was tied to the Catholic Church before the English Reformation. Religious houses were generally used as “safe deposit boxes for treasure, jewels and documents, both public and private,” and a number in the London area (including Westminster Abbey and the New Temple) “housed royal records at various times throughout the middle ages.”⁵⁶ During the reign of Edward I, Tutbury and Tonbridge Castles and “the house of the Friars Preachers in London” are named as repositories for “charters, writings, and other muniments belonging to the crown.”⁵⁷ Popper suggests that another factor in the use of monastic treasure rooms as repositories for “charters, writs, bulls, and commissions” was that Church institutions “functioned as nodes in networks for spreading political information.”⁵⁸ Beginning in the thirteenth century, Westmin-

50 51 52 53 54 55 56 57 58

Bayley, p. 228. Thomas, Hand-Book, p. xviii. Thomas, Hand-Book, p. xviii. Thomas, Notes of Materials, p. 116. Silvestri, “Archives of the Mediterranean,” p. 439. Silvestri, p. 440. Hallam, “Nine Centuries,” p. 27. Bayley, p. 221. Popper, “From Abbey to Archive,” p. 250.

The movable court, records, and the Church

19

ster Abbey was the most important such repository, notably “the Chapel of the Pyx and the undercroft of the Chapter House,” despite a spectacular burglary in 1303.⁵⁹ This convention of storing “royal records and treasure” in religious institutions prevailed on the local level too, so that there was a decentralised storage of royal documents – and individual clerics in various counties appear to have been given keys to individual “royal treasure chests” kept in their monastic houses, or sometimes even in different locations.⁶⁰ Thus the same Yorkshire Dominican friar was responsible for one chest in Beverley and another in Kingston-uponHull.⁶¹

59 Hallam, “Nine Centuries,” p. 27. 60 Hallam, “Nine Centuries,” p. 27. 61 Hallam, “Nine Centuries,” p. 27.

2 Records mismanagement The starting point for the custody of records, that is, the ‘records management’ of Royal personages and their servants, was itself deeply lacking throughout the centuries before 1600. Records creation itself could cause havoc when tied to bureaucratic corruption. Ayloffe relates a strange story in which a rumour was put about that the Great Seal of Richard I (Lionheart) had been lost at sea near Cyprus (possibly in connection with his participation in the Crusades), so that subjects who had received grants and charters under the old seal were required to have them renewed and re-authorised under the new seal – leading to much unnecessary but highly lucrative duplication and, of course, difficulties for later historians.¹ In the mediaeval and early modern period the administration was characterised, according to Popper, by “diffuse document storage” practices in which the Crown’s main servants “made little effort to centralize” the vast quantities of documents produced by the Royal household and offices.² In fact, this is something of an understatement. Fussner notes that while the practice of keeping “a fairly accurate written record of government” had been maintained since King John, administrative expediency in record-keeping, fostered by bureaucratic changes, meant that by 1600, following the proliferation and compartmentalisation of offices under the Tudors, “decentralization had […] been carried to an extreme,” with no clearly defined responsibilities for records.³ These were vaguely shared, with no clear “chain of command,” between the Lord Chancellor, Lord Treasurer, and the Master of the Rolls.⁴ Royal officials kept their own ad hoc collections of records, sometimes dumping unprocessed piles of documents in Westminster Abbey, the Tower of London records repository, or the Chancery Lane Rolls Chapel, while others handed down their work papers to their descendants, so that many government records landed far from Westminster.⁵ The chaos may be attributable to Angevin administrative practice in the twelfth and thirteenth centuries: under this dynasty, records became the purview of “individual officials who stored them where they could,” with no single records repository.⁶ The dedicated records repositories that existed, such as the Tower of London, had considerable difficulties in accessioning records, so that by 1500

1 2 3 4 5 6

Ayloffe, p. x. Popper, “From Abbey to Archive,” p. 250. Fussner, p. 70; Popper, “From Abbey to Archive,” p. 250. Fussner, p. 70. Popper, “From Abbey to Archive,” p. 250. Hallam, “Nine Centuries,” p. 26 – 27.

https://doi.org/10.1515/9783110791464-004

2 Records mismanagement

21

the Tower repository (in Hallam’s estimation) had begun to decline, failing to obtain – despite official warrants – the rolls of Chancery beginning in the reign of Richard III, which remained at the Rolls Chapel.⁷ At the same time, Hallam notes, revenue from records searches decreased, though she does not indicate whether this was due to administrative practice or actual declining use.⁸ Demoralisation eventually increased to the point where a number of records were falsified in 1674 by a Tower records clerk; the deputy Keeper memorialised this sadly with the words “O great cheate and forgery.”⁹ A useful case study of the disorganisation of then-current records is provided by the diplomatic letters and papers of Henry VIII, whose records management, perhaps unsurprisingly, left much to be desired. Their internal order bedevilled archivist J. S. Brewer’s attempts to catalogue them in the nineteenth century. While all of Henry’s diplomatic correspondence had been located in the Exchequer Treasury in the Westminster Abbey Chapter House, “among the documents there […] many letters and private memoranda were preserved, detailing the most secret history of the King’s ministers.”¹⁰ This was because, when a Crown servant such as Cardinal Wolsey fell out of favour with Henry and was charged with ‘treason,’ all his papers, without “distinction between official and private documents,” were seized by the Crown along with his property, in an attempt to find evidence to support the charge – a practice which, as will be discussed later, would become intertwined with the controversy surrounding habeas corpus. ¹¹ The seized documents thus sometimes included the contents of female relatives’ private escritoires, with the result that “bills for ribbons, shoes, and millinery, receipts for apple pies, salves, and medicated waters, are sometimes found in grotesque juxtaposition with papal bulls or instructions to plenipotentiaries.”¹² (Here Henry VIII was exploiting an already established method of political intimidation. Such behaviour echoes, on a small and domestic scale, the example of Richard I’s spectacular seizure in 1194 of the defeated French King Phillip II’s archive of deeds and other documents, as described by Friedrich.)¹³ Brewer’s enormous task was part of the huge Victorian arrangement and description project which alternately benefitted and frustrated the great Tudor his-

7 Hallam, “Nine Centuries,” p. 34; Ailes and Mair, “‘There is no aspect of government activity on which the State Papers may not throw light.’” 8 Hallam, “Nine Centuries,” p. 34. 9 Hallam, “Nine Centuries,” p. 34. 10 Brewer, Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII, Vol. I, p. viii. 11 Brewer, p. viii. 12 Brewer, p. viii. 13 Friedrich, Die Geburt des Archivs, p. 51.

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torian G . R. Elton.¹⁴ Elton “set off for the Public Record Office in Chancery Lane to master a vast array of administrative documents produced by Tudor government […] Much of this Tudor archive was virtually rearranged from the already reorganised State Papers through a very Victorian feat of intellectual engineering: Letters and Papers, Foreign and Domestic, Henry VIII.”¹⁵ (The word ‘reorganised’ is probably a reference to the arrangement introduced by Thomas Wilson in the seventeenth century.) The series, which consists of thirty-seven volumes, “sets out day by Tudor day, thousands on thousands of papers, interspersed monthly with a digest of actions recorded on the patent rolls.”¹⁶ The dating and chronological sorting of these records was, however, explicitly “provisional,” since the letters themselves usually had no year-dates.¹⁷ (Despite this caveat, Elton was one of the few historians who did not treat the archivists’ dating of the materials as authoritative.)¹⁸ To add to the confusion, the provenancial background of these papers was more like an intricate spider’s web than a chain of custody. Although the papers were first deposited in the Exchequer Treasury “in their original order and condition,” at the beginning of the seventeenth century “Large portions of them were carried off […] by Sir Robert Cotton, to augment his celebrated library, and are now to be found in the British Museum.”¹⁹ Later still, “three hundred bundles and books were sent to the Rolls House,” from which an important tranche “was transferred to the State Paper Office.”²⁰ It was not even the case that complete record groups were siphoned off in this manner: “Proceedings in manor courts, portions of suits in the Court of Wards, the Star Chamber, or the Chancery, found their way into the diplomatic collections of the State Paper Office or the Rolls House,” while “Treaties made between the same powers, and relating to the same period of history, straggled piecemeal into two or three or even four different depositories.”²¹ Further, the correspondence between the King and his servants Wolsey, Thomas Cromwell, and Norfolk came to be scattered by the nineteenth century “between the State Paper Office, the Record Office, and the British Museum.”²² Again, it was not uncommon that even “Parts of the same letter” were located in different repositories, with “addresses […] detached from the

14 15 16 17 18 19 20 21 22

MacCulloch, “Foreword” to Elton, England Under the Tudors (Routledge edition), p. viii. MacCulloch, p. viii. MacCulloch, p. viii. MacCulloch, p. viii. MacCulloch, p. viii. Brewer, p. viii. Brewer, p. viii. Brewer, p. ix. Brewer, p. ix.

A proliferation of repositories

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bodies of the letters to which they belonged, and inclosures inserted in the wrong envelopes.”²³ The example of Henry VIII’s diplomatic papers clearly demonstrates that the boundaries between the State Paper Office and the public records repositories (as well as between the SPO and the Cotton library, explored later in greater detail) were exceedingly ill-defined in practice.

A proliferation of repositories The choice of the Tower of London as a main archival repository might initially seem strange given the Tower’s better-known function as a political prison and interrogation centre. The decision may have been intended to capitalise on its accompanying high level of physical security. On occasion the different functions may have overlapped: the records repository room in the upper chamber of the Wakefield (also called Record) Tower is rumoured to have been the scene of the alleged murder of Henry VI, who had been imprisoned there.²⁴ The precise point at which the Tower of London was first chosen for records storage is unclear. It is known that the rolls of Chancery were deposited in the Tower “between the twentieth and thirty-third years” of Edward I’s reign, although it is uncertain in which precise part of the Tower they were originally kept or when they were moved to the Wakefield Tower.²⁵ In 1360 there is a mention of a records removal from the Tower to make room for a political prisoner, John II of France.²⁶ The Crown took the opportunity to fix records chests, build new rolls and memoranda closets, and survey and repair “the roof, doors, and windows.”²⁷ This suggests considerable interest in the records’ preservation on Edward III’s part. Although the Tower was the main repository of “most of the older records,” some particularly valuable records were preserved elsewhere: for example, John Selden noted that the original of Domesday Book was kept “in a place of honour in the Court of Receipt of the Exchequer at Westminster.”²⁸ (This seems logical considering the Exchequer’s role in taxation.) In the early modern period, “most […] Exchequer records were in the treasuries of the Exchequer in Westminster Palace and Abbey,” with recent records still kept in officials’ offi-

23 24 25 26 27 28

Brewer, p. ix. Bayley, p. 219, fn. b. Bayley, p. 225 – 226, 228. Bayley, p. 228. Bayley, p. 228 – 229. Toomer, p. 53.

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ces.²⁹ The divided custody afflicting legal records in particular is the focus of a later section. There is no scope to go into the history of individual repositories or the movement of records between them in detail, and there is so much uncertainty on the question that this would no doubt prove impossible. What is certain is that repositories proliferated over the centuries to the point where the public records of the central government were “scattered through no fewer than sixty official repositories” by the beginning of the nineteenth century.³⁰ The end of the Elizabethan era presented a (comparatively) orderly repository landscape, with “four main groups of records repositories” – the Tower of London and Rolls House, the State Paper Office, the Four (Exchequer) Treasuries in Westminster, and “the various separate offices of the courts and of the departments.”³¹ According to Fussner, however, the Commonwealth period from 1649 – 1660 ushered in a chaotic pattern of provisional records removal and re-storage that would continue during the following centuries.³² Once a body of records had become too enormous, “the search for empty cellars and attics” would begin, without much concern for access or security, and the “surplus” would be transferred; this would have had the ruinous effect of splitting up record groups.³³ Hall later summarised this practice, still in evidence in the nineteenth century, as the moving of records “from one pestilential vermin-haunted den to another.”³⁴ A pattern was discernible with reference to records storage in general: a repository would become overfull, and parts of the records mass (probably the most disorganised parts) would be transferred to a different repository.³⁵ Since these were not the records for which the keeper of the new repository was officially responsible, and they were simply being “warehoused” in his rooms, he “took no interest in them.”³⁶ It was, of course, not easy to find empty storage for records in central London, and territorial disputes between Crown servants may have created obstacles to the search for space, if a later anecdote is any indication. In 1719 the House of Lords was informed that “there were Two Rooms near the Exchequer, which would con-

29 30 31 32 33 its 34 35 36

Toomer, p. 53. Hall, Studies in English Official Historical Documents, p. 23. Fussner, p. 71; Broadway, p. 67. Fussner, p. 75. Fussner, p. 75. It must be said that Fussner does not give the Commonwealth enough credit for good intentions, examined in a later section. Hall, p. 25. Thomas, Hand-Book, p. xxvi. Thomas, Hand-Book, p. xxvi.

A proliferation of repositories

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tain a good many Records, and little at present therein, excepting a few Old Port Books, and Useless Papers, and Old cancell’d Tallies.”³⁷ However, there was competition for the space between the King’s Remembrancer’s formal claim on the one hand and the Lord Treasurer on the other, “who at first coming into his Office, constantly in Person Visits the same by way of taking Possession” – obviously hoping to win the rooms by the mechanism of adverse possession, otherwise known as squatting.³⁸ This background suggests some of the practical difficulties with which record officers would have been confronted when conducting searches for researchers, and thereby illuminates the differentiated fees regime discussed later. Even after the establishment of the Public Record Office in 1838, the connection between difficult storage conditions and under-use of records was acknowledged in a Deputy Keeper’s Report from 1842 concerning records still kept in Somerset House: “The arrangement is […] very inconvenient, and the access to the Records, from the darkness of the vault in which they are placed, is attended with much trouble, and hence comparatively little use is made of them, though many are of great value and curiosity.”³⁹ The challenges faced by later archivists in gaining physical and intellectual control over the records, given this complicated history of removals, is evoked by a pencilled annotation on Sir Thomas Wilson’s list of treaties of royal marriages from 1298 to 1581. While the annotation is anonymous and undated, the syntax and writing strongly suggest that it was made in the eighteenth or nineteenth century, and it reads cautiously, “I much doubt if the whole of these are not in the Chapter House.”⁴⁰

37 38 39 40

Journal of the House of Lords: Volume 21, 1718 – 1721, p. 36 – 37. Journal of the House of Lords: Volume 21, 1718 – 1721, p. 37. Palgrave, Third Deputy Keeper’s Report, p. 19. SP 45/20 f. 124 r.

3 Preservation, misplacing, destruction, and embezzlement The example of those Henrician diplomatic papers that would later be integrated into the State Paper Office shows that the oft-repeated references to the Office as the King’s personal manuscript “library” – a word which connotes order, good conservation, and accessibility – are misleading (quite apart from the fact that the collection contained unique government records rather than published books). The SPO’s papers, as well as government papers more generally, were subject to various preservation threats, so that it would be difficult to reconstruct “even an approximate list of [the] disasters […] by fire or wanton destruction [or] losses through negligent custody or ignorant suppression” that befell them.¹ In the nineteenth century Palgrave mournfully chronicled losses due to damp, detected in 1831 when it was found that of the Crown’s diplomatic documents spanning the thirteenth to eighteenth centuries, “a large proportion […] appear to have sustained much damage from damp when deposited in the ‘Old Treasury,’ in the cloisters […] and have afterwards suffered other injuries, so that many exist only in crumbling fragments, which no present care can preserve or retrieve.”² This was not the only government repository in which records languished and decayed, neglected over the centuries. In the third year of the Tudor Edward VI’s reign, “many records were discovered in an old house in the Tower, unknown until search was made for a convenient place to deposit gunpowder, some of which had lain so long against the walls that they were eaten and perished by the lime, they were then placed with the other records.”³ In his 1610 Compendium describing the records in the Tower, Arthur Agarde, keeper of the Exchequer records in the Tower of London in his capacity as Deputy Chamberlain of the Treasury of Receipt during the period 1570 – 1615, listed various threats to records.⁴ (In this he showed himself in tune with a more general contemporary European preoccupation: Friedrich notes that “The destruction of written artefacts […] features […] prominently in early modern archival literature,” in which “the past” was often seen “as a dark age of archival history.”)⁵ The first of Agarde’s fears was “fier” (to be prevented by putting the records into fireproof vaults, in which some were already located, but “into the same vawltes 1 2 3 4 5

Hall, p. 24, fn. 1. Palgrave, Antient Kalendars, Vol. I, p. xxii. Thomas, Hand-Book, p. xviii; see also Ayloffe, p. xxvii. Hallam, “Arthur Agarde and Domesday Book,” p. 253; Toomer, p. 54. Friedrich, “Loss and Circumstances,” p. 918 – 919. See also Blair, “Introduction,” p. 200.

https://doi.org/10.1515/9783110791464-005

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might bee brought manie moe”).⁶ Another problem was flooding “after a great glut of raigne snow or tempest,” and officers were bound by what Agarde called “an ancient order” to check for water damage in the vaults and “lay abroad the same recordes soe wett to th end they maye drie by aire.”⁷ Further, various rodents – “rates, mice and weesels” – were a threat: “I finde that many goodly and notable recordes have been spoyled […] by gnawinge.”⁸ The creatures were capable of even chewing through timber records presses (racks), which therefore have to be checked (“yea rates and mice will pearce through with gnawinge the presses of timber, if they bee not looked into sometimes to redress the same”) and Agarde suggested storing records in “boxes cheste and strong presses.”⁹ Dampness and vermin fostered each other: damp “rotted parchment and paper,” so that they were easier to gnaw and digest, while the rodent lifecycle continued for “generation after generation in vellum labryinths,” and Agarde complained that rat urine’s effect upon parchment was like that of salt water on iron.¹⁰ One such rat, mummified and with its stomach full of parchment, later became famous in the 1830s when the teenaged record-keeper Henry Cole discovered it and displayed it in Parliament as part of his campaign to galvanise the authorities into records reform.¹¹ (The rat is now part of The National Archives’ permanent collection, in the series “Specimens of Decayed Documents,” but cannot be ordered to the reading room.)¹² Iron gall ink, which eats through paper over time, was another danger. Not only were documents written in it, it was common practice to wash them “with an infusion of spirits and galls” in order to temporarily highlight the writing, but the rinse turned the material black with the passage of time.¹³ This ultimately had the effect of rendering illegible “hundreds of the most important documents in the Tower.”¹⁴ Bayley, writing in 1821, urged a large-scale transcription project by

6 Agarde, Compendium, quoted in Palgrave, Antient Kalendars, Vol. II, p. 313. 7 Agarde, Compendium, p. 313. 8 Agarde, Compendium, p. 314. 9 Agarde, Compendium, p. 314. These passages are also discussed in – among others – Sullivan, Literature in the Public Service, p. 27; Fussner, p. 81; Hallam, “Arthur Agarde and Domesday Book,” p. 254; Yax, p. 64 – 65; Broadway, p. 67. 10 Fussner, p. 81. 11 The Irish News (quoting a National Archives spokesman), “The brilliant reason The National Archives is selling a cuddly toy rat,” 24th November 2017. 12 The National Archives, “Sir Henry Cole’s Rat,” 21st May 2013; The National Archives, “Catalogue Description: Specimens of decayed documents.” 13 Bayley, p. 234. See also Cantwell, The Public Record Office, 1838 – 1958, p. 79. 14 Bayley, p. 234.

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Act of Parliament in order to rescue those records that could still be saved before they had too far deteriorated.¹⁵ The greatest danger was posed by the stored gunpowder belonging to the Ordnance Office.¹⁶ This cache numbered as many as 12,000 barrels at one point, kept in the White Tower’s basement over centuries together with wooden wheelbarrows and other flammable articles.¹⁷ There was an attempt at official intervention in 1620, spearheaded by Sir Edward Coke, champion of ‘records’ in the legal sense, who provided a report on the 4th of July to the Privy Council on “abuses crept into the management of the Tower” and the surrounding area, in which he recommended that the gunpowder be “removed further from the records and Crown jewels.”¹⁸ (Similar complaints about the risks from explosives were repeated in 1718 and 1832, and although illegally erected buildings near the Tower were ordered to be pulled down on Coke’s recommendation in 1620, no specific action concerning the gunpowder stores was taken until much later in the nineteenth century; it was merely good fortune that a fire did not break out during the period in which the records were stored in this location.)¹⁹ The extent of the threat may be gleaned from Thomas, who noted in 1853 that underneath the Tower of London “is a powder magazine, which, if it exploded, it is said, would destroy half of London, and the danger of such a calamity may possibly be rendered greater by the fact, that immediately above the magazine are warehouses containing ordnance stores, tarpaulins, and such like stores.”²⁰ Official enquiries in the eighteenth and nineteenth centuries threw the preservation conditions over the preceding ages into sharp relief. A House of Lords Committee Report in 1719 noted the dreadful situation in the Chapter House repository at Westminster.²¹ Exchequer deputy chamberlain and record-keeper Peter Le Neve had already warned Surveyor General Sir Christopher Wren in June 1701 of the conditions there: although “a Repository for the publick Records of the Nation,” it was “verey much out of repair,” most notably the window glazing, “whereby the Raine beats in & Endamageth the Same Records to both the publick and private Coss.”²² The ceiling was meant to have been repaired six years previously and scaffolding was put up at that time, but “ever Since no Workmen came

15 16 17 18 19 20 21 22

Bayley, p. 234. Hallam, “Nine Centuries,” p. 34. Hallam, “Nine Centuries,” p. 34. Cal. State Papers Dom. (1619 – 23), p. 160; Hallam, “Nine Centuries,” p. 34. Hallam, “Nine Centuries,” p. 34; Cal. State Papers Dom. (1619 – 23), p. 160. Thomas, Hand-Book, p. xxxvi. Thomas, Notes of Materials, p. 137. TNA E 36/253, p. 3.

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to repair.”²³ To add to this grim situation, the rickety roof of the Chapter House, “shored up” in 1740, would fall in completely in 1751.²⁴ Nevertheless, the Chapter House was still a main records repository in the mid-nineteenth century.²⁵ Those eighteenth-century historians who attempted to follow the frequent admonishments to base their research on original primary sources appear nothing short of valiant against this background: such research involved venturing “into dark, damp, filthy, rat-ridden dungeons, sculleries, and outhouses to decipher illegible fragments and explore mouldy, confused heaps.”²⁶ It should not be hastily concluded that record-keepers were apathetic about their charge. Underpayment of record officers was a serious problem.²⁷ Additionally, ill-thought-out administrative processes could frustrate them in their attempts to sort and catalogue records. In 1718 the Exchequer deputy chamberlains Dudley Downes and John Lawton noted in a letter to the House of Lords Committees for Inspecting Records that they would have liked to sort and make useful digests of the records in the Chapter House, but lacked “suitable Time, and due Encouragement.”²⁸ They were prevented from doing so by having to work in the Court of Receipt from nine in the morning till one in the afternoon, a shift which overlapped completely with that of the Chapter House’s third key-holder, the Exchequer Auditor’s Clerk, so that Downes and Lawton could not gain entry to the Chapter House and were in practice “debarr’d from doing anything with the Records.”²⁹ They would not be able to carry out this “very Laborious Work […] without an Allowance of Salaries for our selves and proper Clerks, with free Access” to the Chapter House.³⁰

23 TNA E 36/253, p. 3. 24 Hallam, “Nine Centuries,” p. 34. 25 Joseph Hunter, “Extracts from the General Report of the Assistant Keeper at the Augmentation Office,” 12th January 1842, quoted in Palgrave, Appendix I to the Third Report of the Deputy Keeper of the Public Records, 1842, p. 9. 26 Mullett, “The ‘Better Reception, Preservation, and More Convenient Use’ of Public Records in Eighteenth-Century England,” p. 195. 27 Hall, p. 24. 28 Letter from Dudley Downes and John Lawton, in Journal of the House of Lords: Volume 21, 1718 – 1721, p. 34. 29 Downes and Lawton, p. 34. 30 Downes and Lawton, p. 34.

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Misplacing and destruction The fourth of the main threats to records described in Agarde’s Compendium is misfiling. He describes “misplacinge” as “that enemye to all good ordre, and the bringer in of all horror and inconvenience.”³¹ This derived from the records officer returning a document, not to its designated “chest or presse,” but “into an others bagge,” or chronologically misfiling it (“misplaced in its Kinges time”); Agarde suggests that such negligence should lead to the discrediting of the responsible officer.³² It was also possible for top-secret records to vanish into obscurity even if they had not actually been misfiled, a danger of secrecy itself. In the nineteenth century, great excitement was caused by the rediscovery of the conviction for treason of Anne Boleyn (which was previously thought to have been deliberately “suppressed or destroyed”) inside “a ‘Baga de Secretis’ […] recovered and inventoried from the records of the Court of King’s Bench.”³³ This is likely the item described in Arthur Agarde’s finding aid as the “Bagges of the Treasons of Sir Thomas More” and numerous other ‘traitors.’³⁴ The bag would eventually contain records of other highprofile treason cases from Edward IV until George III, including those of Catherine Howard, Guy Fawkes, Ralegh, and the regicides who, after the Restoration, were convicted of Charles I’s murder.³⁵ When the bag was rediscovered in the nineteenth century, the Boleyn conviction and other records were found to be “crushed and crumpled in consequence of the mode in which they have been stored.”³⁶ Palgrave noted that “The great ‘Baga’ has long since disappeared, but was represented by a closet,” which had three locks, the keys retained by the Attorney General, the Lord Chief Justice, and the Master of the Crown Office.³⁷ The smaller bags and pouches from the original large bag were kept in this closet.³⁸ A separate case of even more restrictively classified records is the bag deemed so extremely secret in the seventeenth century that Agarde could not even include a description of the contents in his finding aid: “Item a bagg of cordover sealed 31 Agarde, Compendium, p. 314. 32 Agarde, Compendium, p. 314. This passage is also discussed in Sullivan, p. 27; Stewart, “Familiar Letters and State Papers,” ps. 239 – 240; and Yax, p. 65. 33 Palgrave, Third Deputy Keeper’s Report, p. 16. This bag of records is briefly discussed by Cantwell, The Public Record Office, 1838 – 1958, p. 79. 34 Agarde, Compendium, p. 324. 35 Palgrave, Third Deputy Keeper’s Report, p. 16; The National Archives, “Court of King’s Bench: Crown Side: Baga de Secretis.” 36 Palgrave, Third Deputy Keeper’s Report, p. 16. 37 Palgrave, Third Deputy Keeper’s Report, p. 16. 38 Palgrave, Third Deputy Keeper’s Report, p. 16.

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with the seales of Privy Councellors, and is not to be opened but by the Prince and those of the P’vy Counsell, wherein are matters of seacret.”³⁹ (This incident is like a small-scale version of the deliberate omission of secret documents from indexes that de Vivo has described in the early modern Venetian context.)⁴⁰ The top-secret “bagg” was originally located in the vicinity of extremely important diplomatic records in the Westminster Abbey strong-room.⁴¹ Agarde’s compendium is annotated with a later clerk’s remark that the original large “bagg” had worn out by 1696, so that the contents were “put into a wooden box & sealed with the seales of 2 of the Privey Councellors,” which was then returned to the original chest.⁴²

‘Embezzlement’ of records Agarde’s bitterest complaint is of records embezzlement, “the plaine taking of them away.”⁴³ This happened in two main ways. The first was when a “Privie Counsellor or […] Justice or any of the Kinges learned Counsell” directed a warrant to the records officers to deliver up “leagues books or other records […] then the same must bee left wth them, although th officers come for them t demaund them never soe oft, yet shall he seldome or never gett them out of their handes, as by experience I have found.”⁴⁴ (Unfortunately, it is unclear from Agarde’s wording whether these officials were allowed to make out the warrants themselves, or whether – as in the case of the State Paper Office, discussed later – these warrants were usually obtained from a higher authority. In any case, the obvious ease with which officials could abstract records from the Tower via warrant made it extremely difficult to control records losses.)⁴⁵ The second avenue for records embezzlement “is the lendinge of books roles or records, to great officers or others, wherein it appeared to me that sundry have failed” – which appears to mean informal lending to the powerful, without requiring a warrant.⁴⁶ Outside the context of the Tower repository, Thomas Wilson, Keeper of the State Paper Office, com-

39 Agarde, Compendium, p. 333. 40 De Vivo, “Ordering the archive,” p. 246 – 247. 41 Agarde, Compendium, p. 332 – 333. 42 Agarde, Compendium, p. 333. 43 Agarde, Compendium, p. 314 – 315, discussed in Fussner, p. 81 and referenced by Stewart, p. 240, Broadway, p. 67, and Thrush, “The Government and its Records, 1603 – 1640.” 44 Agarde, Compendium, p. 314 – 315. 45 Fussner, p. 81 – 82. 46 Agarde, Compendium, p. 315; Stewart, p. 240.

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plained in 1617 of similar embezzlement of papers by highly-placed government officials.⁴⁷ The lawyer Thomas Powell confronted a related problem, the disappearance of finding aids, in his The Repertorie of Records Remaining in the 4 Treasuries on the Receipt Side at Westminster (1631), which he officially credited as co-authored with Agarde, drawing on Agarde’s earlier work. The lack of administrative or legal backup in tackling embezzlement is suggested by his moral argument against lending out these materials: they “ought neyther to bee giuen or lent away to any, least they returne not againe, whereby they may turne to the Glory of GOD, the service of our Soueraigne Prince, and the good of the Subiect, and the better readinesse of them that shall succeed in the place, to whom is wished increase of knowledge.”⁴⁸ Despite Agarde’s and Powell’s best efforts, however, the deficient arrangement and description situation in the Tower (examined later) and accompanying inadequate physical control made targeted embezzlement possible. Litigants, for example, exploited the chaos to eliminate or alter disadvantageous legal records, and this “was common enough to draw criticism.”⁴⁹ Of course, many records were embezzled even before the accessioning stage. Managers of current records themselves could not always be trusted. Hall observes that the growth of the later departmental system gave scope for unchecked abuse, and “the clerks of the rolls and writs and their subordinates came to regard these Records as a source of income by means of office fees.”⁵⁰ He even hints that records may have been deliberately destroyed by those responsible for them so as to increase the rarity and market value of the surviving records.⁵¹ However, not all embezzlement of current records was, strictly speaking, intentional. It was encouraged by the blurred boundary between public office and private life in early modern England; it is necessary to re-examine “our commonsensical ideas of what constitutes state papers – or, for that matter, family papers.”⁵² The example of Henry VIII’s diplomatic papers has already been discussed, but the point is underscored by a remark made in 1592 by Robert Beale, clerk of the Privy Council. He “would wish a distincc[i]ion […] betweene that w[hi]ch is publicke and that w[hi]ch is private, – that is, a separacion betweene those thinges w[hi]ch are her Ma[ies]ties Recordes […] and those which a Secretarie getteth by

47 48 49 50 51 52

Thrush, “The Government and its Records.” Agarde/Powell, Repertorie, p. 135. Fussner, p. 82. Hall, p. 24. Hall, p. 24. Stewart, 239.

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his private industrie and charge.”⁵³ Otherwise, secretaries mixed up public documents with their private records and bound them up into private volumes which nobody was allowed to see, leading to bureaucratic amnesia and, in particular, no basis for “yonge beginners” to properly train in their new posts.⁵⁴ The words “private industrie and charge” illuminate an underlying cause of the chaos: i. e. that Crown offices in early modern England were not at all like modern civil service positions, but were to a considerable extent seen as investments to be exploited for private revenue, bought, sold, and gifted by patrons to their clients. An example is provided by Paul D’Ewes (father of the Parliamentary historian and antiquary Sir Simonds D’Ewes) who bought the office of Clerk of Chancery in 1607.⁵⁵ This meant that he paid the sum of £5000 for the actual physical chamber in which the Clerk’s business was conducted in Chancery Lane; after twenty years he had received a return of £32,000 on his investment.⁵⁶ The whole D’Ewes family lived in the same office, and were thereby privy to official business: young Simonds’ legal studies were repeatedly disturbed by his sisters’ receiving of visitors or going out to visit.⁵⁷ (Living in one’s workplace also had other drawbacks. When a fire swept through the Chancery offices in 1621, each office lost considerable quantities of official records and D’Ewes himself lost “his title deeds” – probably to the office – as well as many private household possessions including gold and plate to a value of £3000.)⁵⁸ Wernham notes the tininess of the offices allotted to the Secretaries of State who generated the Crown’s State Papers: one office, its holder complained in 1545, hardly had enough room for his bed and a table, and certainly none for his employees.⁵⁹ Unsurprisingly, high-ranking statesmen often simply refused to give up the records that they had generated or used in their work, which they viewed as their own property; indeed, the Cecil family still retain a large collection of State Papers at Hatfield House.⁶⁰ The bequeathing of government papers by prominent Crown officials to family members was a widespread practice throughout the period under review.⁶¹

53 54 55 56 57 58 59 60 61

Beale, quoted in Stewart, p. 240. Beale, quoted in Stewart, p. 240. Stenton, “The Pipe Rolls and the Historians,” p. 272. Stenton, p. 272. Stenton, p. 272. Stenton, p. 273. Wernham, p. 20. Stewart, p. 238. See e. g. Popper, “From Abbey to Archive,” p. 250.

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Ironically, the increased interest in using the records for historical research, beginning in the sixteenth century, also threatened their integrity. Although the antiquarian movement was the source of numerous reformist efforts aimed at improving the conditions and organisation of government papers, it also worsened the problem of theft. In particular, the increase in demand for “original authorities and constitutional precedents,” a movement examined in Part Two of this book, led to the disappearance of great quantities of public records from the official repositories.⁶² The most brazen examples of records embezzlement were related to commercial uses. The chaotic nature of records removals provided the workmen and soldiers employed to carry them out with opportunities to sell parchments for glue.⁶³ Strangest of all, the records of the feudal Court of Wards and Liveries, abolished as a result of the Civil War-era legal system reforms, were later found “in a dilapidated house” which belonged to the Royal “Fishmonger or Yeoman of the Salt Stores” and adjoined his own official accommodation in Fish Yard, Westminster.⁶⁴ It also adjoined Westminster Hall itself and was chosen as a repository during the Revolutionary period: the specific order to move these records to the Fish House repository was issued by the Second Protectorate Parliament on the 31st of October 1656.⁶⁵ The Committee of the House of Lords’ inquiry in 1709 found that the fishmonger was using the records for his own purposes, since there was “none to control him,” and that he also “let anybody go in and do as they pleased”; as a consequence the documents were “perishing rapidly.”⁶⁶ Not only were many records thought to have been embezzled, but the fishmonger had also expropriated finding aids.⁶⁷ The roof leading had been stolen, so that rain was coming through the roof as well as through the broken windows, and it had, together with vermin, “corrupted and destroyed” many of the “great number of books and papers lying upon the floor in the greatest confusion and disorder.”⁶⁸ A man called Peter Fabian was meant to be the record-keeper (though the House of Lords Committee suspected that he had – bizarrely – appointed himself ), but he “lived in the country.”⁶⁹ 62 Hall, p. 25. 63 Hall, p. 25. There are parallels between such exploitations of archives in England and the shameless theft of parchments from the archive of the Paris Chambre des Comptes by an early modern limonadier, as described by Friedrich (Die Geburt des Archivs, p. 11 – 12). 64 Fussner, p. 75; Thomas, Notes of Materials, p. 135; Hallam, “Nine Centuries,” p. 33; “February 1646: Ordinance for removing the Court of Wards.” 65 Fussner, p. 75; Thomas, Notes of Materials, p. 135, 142. 66 Hallam, “Nine Centuries,” p. 33; Thomas, Notes of Materials, p. 133; Fussner, p. 75. 67 Thomas, Notes of Materials, p. 133. 68 Thomas, Notes of Materials, p. 133. 69 Thomas, Notes of Materials, p. 133.

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Even when he was in London he had no control over the records, due to the farcical circumstance that the fishmonger had the keys to the repository, so that Fabian “could never go in to make a search but by the fishmonger’s leave.”⁷⁰ This situation appears to have developed at some point after the Treasury had appointed a William Grymes in 1687 to painstakingly arrange and describe the records.⁷¹ Grymes was never paid, and his effort was wasted, since upon his death the records were again thrown into chaos by the interventions of the fishmonger.⁷² Following this investigation, the House of Lords Committee had the records moved to “the apartment of the Usher of the Black Rod for safe custody” in 1709, an arrangement that was meant to be provisional.⁷³ Then inertia set in. The records were not moved to the official Chapter House repository until 1732, in the meantime continuing to decay in a confused state in Black Rod’s accommodation, although they were at least now decisively out of the reach of commercial interference.⁷⁴ (Given the conditions discovered in the Chapter House in 1719, detailed in a previous section, they might indeed have been better preserved in Black Rod’s apartment.) Although Harding’s identification of a correlation between the decline in records’ evidential value and diminishing concern to preserve them is made in the context of Henry VIII’s Dissolution of the Monasteries, it seems equally applicable to the records of this now obsolete court.⁷⁵ Matters were not helped by the chronic underpayment of archives-keepers, as illustrated by Thomas Wilson’s various complaints at the State Paper Office. Wilson spent much time and effort attempting to raise revenue by selling ‘extra’ services that had nothing to do with the core archival functions.⁷⁶ (It was a strange 70 Thomas, Notes of Materials, p. 133. 71 Thomas, Hand-Book, p. 433. 72 Thomas, Hand-Book, p. 433. Fishmonger-related issues reappeared in the nineteenth century. In 1840 a House of Lords Select Committee investigated the (apparently officially-sanctioned) destruction of Exchequer records at Somerset House, which “had been carted away from the vaults there as waste by a fishmonger at £8 a ton” and then been sold, in part, on the open market (Cantwell, The Public Record Office, 1838 – 1958, p. 48 – 49). Record officer William Black’s testimony to the Committee suggested that such expropriation for commercial purposes was not confined to fishmongers. Between 1836 and 1838, Black had made it his somewhat eccentric personal mission to track down lost public records: “it has been my habit and my constant endeavour to recover them for the Public Service. I must say that in this Cause I have acted with a great deal of self-denial for I have deprived myself of my own comfort many a Day and many a Night to go in search of Records sometimes in Disguise. I have gone to Workshops and Cellars, to Public Houses and other Places […] to trace or identify Public Records.” (Quoted in Cantwell, p. 49.) 73 Thomas, Hand-Book, p. 433. 74 Thomas, Hand-Book, p. 433. 75 Vanessa Harding, “Monastic Records and the Dissolution,” p. 482. 76 These various schemes are discussed in Part Three.

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echo of the catastrophic situations with which even the great Italian city-state archival systems were sometimes confronted: during a financial crisis in the mid-fifteenth century which affected the payment of their salaries, more Venetian notaries were to be found at the Rialto market soliciting extra work from foreigners than in the State chancery where they belonged, while in Florence, chancery staff also begged for the payment of their salaries – Machiavelli in particular was so frustrated that he threatened “to ask foreigners for help.”)⁷⁷ While Wilson does not appear to have gone so far as selling records, such struggles to survive financially must have been deleterious to his – and other archives-keepers’ – official work.

Tracking missing archival materials Unsurprisingly, researchers and archives-keepers were often aware of materials that had gone astray. In 1622 Thomas Powell in his Direction for Search of Records Remaining in the Chancery, Tower, Exchequer discovered using the ‘Red Booke’ (probably the famous Red Book of the Exchequer) “that there was in this Office a Booke called Tricollumpnus,” consisting “of three Collumpnes” on “the Church of England,” “the worthy Acts of King Henry the second,” and “Negotiations publique and familiar.”⁷⁸ He concludes sadly “But this Booke is not to be found any where.”⁷⁹ Though insufficient detail is provided, this does not sound like an original record, but one of the abbreviated digests often made by the record officers themselves for easier reference. Similarly, handwritten calendars and copied digests of records by Arthur Agarde subsequently disappeared in great numbers. His descriptions of them in his Compendium were annotated gloomily by later deputy chamberlains Peter Le Neve and John Lowe, apparently (given the date of one annotation) in 1696: “This book never seen by P. L.” (in reference, variously, to a book of abbreviated charters, a volume of summarised records including “matters of forests,” a calendar of papal bulls, a book of accounts concerning royal lands, and a calendar of records on Ireland), or “The bookes not to be found nor ever by me seene J. B.” (likely a misprint for J. L.), referring to a series of books into which Agarde had abbreviated Assize Rolls from the thirteenth to the fifteenth centuries.⁸⁰ That 77 De Vivo, “The Heart of the State,” p. 470 – 473, 484. 78 Powell, Direction for Search, p. 27– 28. 79 Powell, p. 28. 80 Agarde, Compendium, p. 318 – 320, 324, 327. Sullivan discusses these annotations but appears to take them for references to missing original records, rather than Agarde’s abbreviated, bound cop-

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Agarde’s abbreviated copies of records had almost all gone missing – and that subsequent employees clearly expected to find them – may suggest embezzlement by high-ranking statesmen, given their obvious usefulness for rapid reference, though they may also have been acquired by Agarde’s relatives after his death. Hallam notes that Agarde actually bequeathed a number of his “abstracts and indexes to plea rolls, assize rolls and other records” to Robert Cotton (and that Sir Thomas Wilson unsuccessfully challenged the bequest in 1615) – a circumstance that may explain some of the absences noted by Le Neve and Lowe.⁸¹ Indeed, the survival of any of Agarde’s volumes was so unusual as to be worthy of comment: concerning two volumes containing abbreviated versions of pleas from the Court of King’s Bench in the reign of Edward I, there is the annotation “These 2 books still remain.”⁸² Le Neve and Lowe were also able to find his similar volume for the reign of Richard II: “This book remains.”⁸³ Sometimes individual, well-known records could no longer be found. Fussner notes that not ten years after its signing, the English copy of the Treaty of Ryswick (1697) was missing from the State Paper Office.⁸⁴ Even a record supporting the English Crown’s claim on the North American continent, the patent given by Henry VII on the 3rd of February 1498 to the explorer John Cabot, was lost for a long time, as was a patent of 1501 for “a similar voyage of discovery” granted by Henry to the explorer Richarde Warde; both were located in the nineteenth century “after a tedious search.”⁸⁵ Often, there were large gaps in the historical record which suggested that whole tranches of original records had been lost. Ayloffe noted that it was highly likely that “the earliest records of this kingdom have long since perished,” and suggested that this could be partially attributed to the destructions of war and rebellion, such as the twelfth-century civil war between Empress Matilda and King Stephen.⁸⁶ Here he references the complaints of William Prynne, Keeper of the Tower records during the Restoration, that many Parliament rolls had gone missing: these were “perished and quite lost, either through the Negligence of the Record-keepers,

ies of them and finding aids. She also – apparently – interprets the annotations by the later recordkeepers as having been made at the same time that Agarde listed the volumes: “As Agard lists the records that should be there, his checkers gloomily annotate the list: ‘books not to be found nor ever by me seene,’ and ‘this booke never seene.’” Sullivan, p. 27. 81 Hallam, “Arthur Agarde and Domesday Book,” p. 254. 82 Agarde, Compendium, p. 330. 83 Agarde, Compendium, p. 330. 84 Fussner, p. 81; Ailes and Mair; Wernham, p. 28. 85 C. P. Cooper, An Account of the Most Important Public Records of Great Britain, Vol. II, p. 480. 86 Ayloffe, p. vi.

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or the Injury, Iniquity of the times, during the Civil wars between the King and Barons, in the reigns of King Iohn, and Henry the 3. and betwixt the two houses of Lancaster and York for the Title to the Crown.”⁸⁷ Indeed, Popper notes the general destruction brought by the Wars of the Roses, which prevented proper cataloguing and preservation of archives “in the late fifteenth century.”⁸⁸ Prynne suspected that constitutionally disadvantageous records were deliberately disappeared – “(it is very probable) the prevailing Kings parties, by their instruments, embezelled, suppressed such Parliamentary Records and Proceedings, as made most against their Interests, Power, Prerogatives, Titles” – but he also blamed the failure of government officials to return records, identifying “the Default of our Kings Great Officers and Atturneys, who sending for the Parliament Rolls out of the Tower upon special occasions, never returned them again, for reasons best known to themselves.”⁸⁹ The storage of important records in monastic institutions meant that they were in a vulnerable position at the dawn of the English Reformation. Henry VIII’s Dissolution of the Monasteries “further decentralized the locales in which important political documents were housed, since many items that had been held by monasteries were scattered or destroyed.”⁹⁰ It was, as Tite observes, “carnage […] great damage and destruction of books and […] records”; he gives as an example of the disorder the unknown way by which the Lindisfarne Gospels made their way from the North-East of England to London.⁹¹ The Dissolution not only transformed patterns of land-holding but “also resulted in a catastrophic dispersal of records” which often passed into private ownership as well (according to Toomer, this was true of the majority of rescued ‘books,’ although some alighted in the Royal Library).⁹² The effect was described by Dugdale as “the greatest blow to Antiquities that ever England had, by the destruction and spoil of many rare Manuscripts.”⁹³ These manuscripts often remained in private collections for centuries, in some cases up until the present day, although during the early modern pe-

87 Prynne, An Exact Abridgement of the Records in the Tower of London, Preface. 88 Popper, “From Abbey to Archive,” p. 250. 89 Prynne, An Exact Abridgement, Preface. 90 Popper, “From Abbey to Archive,” p. 251. 91 Tite, “Introduction,” The Early Records of Sir Robert Cotton’s Library, p. 1; see, similarly, Broadway, who states that “much of the vast storehouse of documentary evidence compiled and preserved by medieval monasteries was lost or destoyed,” p. 27. 92 Toomer, p. 44; Maclagan, “Genealogy and Heraldry in the Sixteenth and Seventeenth Centuries,” p. 35; see also Popper, “From Abbey to Archive,” p. 251. 93 Broadway, p. 223 – 224.

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riod further chaos was created by the convention of dispersing private collections after the death of the owner.⁹⁴ It is important to emphasise the diverse nature of the manuscripts, encompassing books but also legal and religious documents, subject to wholesale loss, destruction, sale and mutilation in the period 1530 – 1565, while the nature of the Dissolution also laid documents open to targeted theft.⁹⁵ John Bale – a former Carmelite monk, now a Protestant reformer and Crown official involved in the belated official rescue operation – testified to the behaviour of the new owners of monasteries, who fed manuscripts to donkeys, used them for cleaning candlesticks or shining boots, sold them “to the grocers and soap sellers,” or even sent “whole ships full” overseas to be used in bookbinding, “to the wondering of the foreign nations.”⁹⁶ Leaves of manuscripts destroyed by Henry VIII’s commissioners were seen fluttering about the quadrangles of Oxford and Cambridge.⁹⁷ Further, Bale stated that the preservation conditions in the monasteries themselves had been suboptimal even before the Reformation, a period which he characterised as one in which gluttonous English monks had neglected record-keeping in favour of feasting, allowing insects and worms to burrow through the volumes with the result that in many cases the front page identifying the manuscript had been completely devoured.⁹⁸ It must be asked whether this portrayal was skewed by Bale’s anti-clericalism, given the fact (in the wider European context) that monasteries in general made an important contribution to the proliferation and rationalisation of archives, beginning “in the High Middle Ages.”⁹⁹ In 1622 the Crown designed a systematic project to track down such documents, with a warrant to pay £100 “and more if needful” to the King’s librarian Patrick Young “to make search in all cathedrals for old manuscripts and ancient records, and to bring an inventory of them to His Majesty.”¹⁰⁰ This suggests a keen official awareness that dispersion of important materials was still an issue – although, at the same time, confusion as to the respective purviews of librarians and State record-keepers. Sadly, losses of monastic documents persisted throughout the seventeenth century: John Aubrey noted of his 1630s schooldays in the vicinity of the dissolved Malmesbury Abbey that it was common practice to use old Abbey manuscripts for book bindings, and he related how the local Church of Eng-

94 Popper, “From Abbey to Archive,” p. 251; Toomer, p. 44. 95 Fussner, p. 23; Vanessa Harding, p. 486; Toomer, p. 44. 96 Bale quoted in Fussner, p. 23, also Levy, Tudor Historical Thought, p. 126. 97 Levy, p. 126. 98 Grafton, “Matthew Parker: The Book as Archive,” pp. 22 – 23. 99 Friedrich, “Government and Information-Management in Early Modern Europe,” p. 557. 100 Cal. State Papers Dom. (1619 – 23), p. 430.

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land rector, Parson Stump, used pages from them as stoppers for barrels of ale.¹⁰¹ However, Aubrey suggested that matters had been even worse in his grandfather’s time, “when the Manuscripts flew about like Butterflies: All Musick bookes, Account bookes, Copie bookes &c. were covered with old Manuscripts, as wee cover them now with blew Paper, or Marbled Paper. And the Glovers at Malmesbury made great Havock of them, and Gloves were wrapt up no doubt in many good pieces of Antiquity.”¹⁰² By 1647, when Aubrey went back to visit Parson Stump to see his remaining Abbey manuscripts, he found that they had been sacrificed to the Civil War effort: “His sonns were Gunners, & Soldiers, and scoured their Gunnes with them.”¹⁰³ The dispersal of monastic documents, whether religious writings or legal records, had the effect of holding back English historical research on the mediaeval period, which remained comparatively unsophisticated “until late in the sixteenth century.”¹⁰⁴ The effort involved in accessing primary sources indeed became overwhelming: Cheney observes that the seventeenth-century antiquaries Dodsworth and Dugdale were forced to visit various country houses to transcribe “numberless charters.”¹⁰⁵ The decreasing accessibility of those documents that did survive was so problematic that “for a time men were content merely to compile lists locating them.”¹⁰⁶ Instead of being able to find records related to a particular monastery in the monastery itself, historians had first to determine the whereabouts of the individual records. While Henry VIII did coordinate a rescue operation for some records evidencing property rights via the newly-established Court of Augmentations set up to administer expropriated Church holdings in general, this salvaging was not consistent and the records were often then redistributed to the private owners of the relevant monastic lands.¹⁰⁷ (With regard to the records that remained in government storage, the archives of the Court of Augmentation would be subjected to appalling neglect by keeper John Caley in the late eighteenth and early nineteenth centuries.)¹⁰⁸ Despite the incompleteness of this centralising process, the seizing of administrative documents previously preserved by the Church can, as Siddique suggests in his portrayal of it as belonging to the famous “Tudor revolution in government,”

101 102 103 104 105 106 107 108

Aubrey quoted in Yale, “With Slips and Scraps,” p. 1. Aubrey in Yale, p. 1 – 2. Aubrey in Yale, p. 2. Fussner, p. 23. Cheney, “Introduction: The Dugdale Tercentenary,” p. 7. Levy, p. 126. Vanessa Harding, p. 487– 488. Vanessa Harding, p. 491.

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be interpreted as a power move by the Crown in the context of the Reformation conflict.¹⁰⁹ As a result of the Dissolution, Sir Robert Cotton acquired a substantial number of monastic registers for his collection, which were frequently lent out to enquirers; perhaps, Tite suggests, to new owners of monastic lands who needed these records for property litigation.¹¹⁰ The situation was even more complex than this brief summary suggests – Harding’s carefully forensic analysis of the fates of different types of records capturing property relations is the definitive source on the question.¹¹¹ Further, the practice of breaking up “the monastic estates by geography,” while it made their individual parts easier to sell and administer, by its nature “broke up the archive of any one estate and rendered its original order redundant” and also put the records of any particular monastic estate “at […] risk of dispersal among different locations.”¹¹² Thus the unity of the original estate is obscured by the Dissolution’s fragmentation of both the property and of the corresponding documentary record.¹¹³ This is just one example of the grave problems created for historians by losses of records in general, whether monastic or otherwise. The difficulties are highlighted by a list of specific, suspected missing records provided by Ayloffe in 1774. He believed that the original of Magna Carta (“the great charter of King John”), as well as its confirmation by Henry III, must both have existed, and given the importance of the documents – which would have been passed under the King’s Great Seal – should have been enrolled.¹¹⁴ Nevertheless, neither could be found. A Parliament roll from the forty-fourth year of Henry III’s reign, which John Selden claimed to have used for his research on the English constitution, also could not be found in Ayloffe’s time.¹¹⁵ Selden himself went searching in vain for a rumoured work by Alfred the Great.¹¹⁶ It was thought to have been a detailed legal survey of all the King’s lands, like the later Domesday Book, deposited by Alfred at Winchester Abbey and described in detail by the chronicler known as the ‘Pseudo-Ingulf,’ who pretended to have been a courtier of William the Conqueror but in fact

109 Siddique, “Paperwork and Political Thought,” p. 7. 110 Tite, The Panizzi Lectures, p. 101 – 102. 111 Vanessa Harding, p. 487– 491. 112 Vanessa Harding, p. 485. This is similar to the repeated breaking-up of archives (accompanied by considerable acrimony) necessitated by the ever-finer division of German aristocratic realms through partible inheritance, as described by Friedrich (Die Geburt des Archivs, p. 211 – 216). Overall, however, England’s contrasting system of primogeniture, with comparatively stable landholding patterns, provided less scope for this type of archival conflict. 113 Vanessa Harding, p. 485. 114 Ayloffe, p. vi-vii. 115 Ayloffe, p. vii. 116 Ayloffe, p. xvii, xxi-xxii.

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lived in the thirteenth or fourteenth century.¹¹⁷ Given the symbolic threat that it would have posed to the new regime’s legitimacy, it is possible that this work (if in fact it ever existed and was not simply more pseudery from ‘Ingulf,’ who may, however, have been sincerely muddled by Domesday) was destroyed intentionally, or that it was a casualty of the later Dissolution. Some of the losses had a direct relevance to the constitutional questions of the seventeenth century. In the Commons Debates of 1628 which led to the Petition of Right, Sir Edward Coke stated that he had seen a Parliament Roll from the first year of Henry VIII’s reign, containing the law “that no loan […] shall be without parliament. When I was Attorney [General, 1594 – 1606] I saw it, but now it is lost.”¹¹⁸ The editors of the Debates note that they were unable to find any such record.¹¹⁹ Later, Ayloffe identified missing Parliament rolls from the reigns of Edward I and III, while the earlier petitions to Parliament preceding the reign of Richard II could not be found.¹²⁰ He conceded that “Some of those ancient petitions may probably be in that confused heap of blind and obliterated petitions, which now remain in a closet in Wakefield Tower, but many others have undoubtedly perished.”¹²¹ Ayloffe examines Thomas Powell’s Repertorie of Records to conclude that although in 1631 there were fifteen bundles of parliamentary petitions for the reign of Edward III, by the time of Ayloffe’s writing in 1774 only one could be found.¹²² Furthermore, the original petitions from the reigns of Edward I and II were also missing, despite earlier references by William Prynne to the location of some of these in the Tower repository.¹²³ (It is not impossible that Prynne’s activities lay behind these disappearances – certainly he is known to have placed great quantities of records bundles in a dark and obscure passageway, which were then forgotten until rediscovered by Palgrave in the nineteenth century.) Here the situation was partially saved by the seventeenth-century habit of printing and making private copies of original sources. William Ryley junior provided reprints of nineteen of the subsequently missing petitions from the reign of Edward I in the appendix of his 1660s work Placita Parliamentaria. ¹²⁴ Ayloffe might have

117 Ayloffe, p. xvii, xxi-xxii; James Wood, “Ingulph,” The Nuttall Encyclopedia; Toomer, John Selden, p. 57. 118 Commons Debates 1628, vol. III, p. 130. 119 Commons Debates 1628, vol. III, p. 130, fn. 57. 120 Ayloffe, p. vii. 121 Ayloffe, p. vii. 122 Ayloffe, p. vii. However, the description in Powell’s finding aid raises the possibility that even in 1631, the location of these petitions was uncertain. 123 Ayloffe, p. vii-viii. 124 Ayloffe, p. viii.

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been slightly soothed could he have foreseen that in the late nineteenth century the great legal historian F. W. Maitland would rediscover the roll of the Parliament convened by Edward I in the spring of 1305, one of those rolls printed in Ryley’s book.¹²⁵ Maitland found the roll lying forgotten in the Office of the King’s Remembrancer.¹²⁶ Ayloffe provides further examples of grave losses – mediaeval statute rolls, records of the Court of Exchequer, post-mortem proceedings, and perambulations of the forest – highlighting the gaps in the written record.¹²⁷ Overall it is clear that seventeenth-century historians, particularly of the English constitution, could draw on many more early primary sources than today’s researchers. Not only the mediaeval records, but also those of the early modern period itself, are marked by such lacunae. This means that it can only be speculated as to why so few State Papers for the Jacobean era are extant: were they embezzled or lost to fire, or was it simply the case that the Secretaries of State in that period conducted less business?¹²⁸ Against this chaotic backdrop, the absence of records can never be taken to denote an absence of corresponding events. It also means that surviving secondary sources from the eighteenth and nineteenth centuries cannot be discounted as evidence of once-extant primary sources.

125 Langlois, Review of Records of the Parliament holden at Westminster (ed. F. W. Maitland), p. 755. 126 Langlois. 127 Ayloffe, p. viii-ix. 128 Ailes and Mair.

4 Specific record-keeping situations: Provincial and legal records The foregoing discussion of national records raises the question of the fates of provincial records. Hall notes that “As for such Records as were still preserved in provincial repositories, but a small percentage had survived at the beginning of the last century,” with the further opaque comment that “The cause of this further loss is not difficult to find when we know the fate of the great collection of local Records once deposited in Dover Castle.”¹ Here he refers to a volume of Archaeologia Cantiana in which the seventeenth-century antiquary Sir Edward Dering, Lieutenant of Dover Castle, is related to have expropriated some of the castle’s contents, including an original copy of Magna Carta which he sent to his friend Sir Robert Cotton in 1630 as a present: “I have heere ye charter of K. John, datd att Running Meade; by ye first safe and sure messenger it is yours. So are the Saxon Charters, as fast as I can coppy them; but, in the meane time, I will close King John in a boxe, and send him.”² The letter is very affectionate, and Dering’s present, and promise of further archival gifts, may have been intended to raise Cotton’s spirits in his disgrace following the Crown’s forcible closure of his own manuscript collection, discussed later. In the same section Archaeologia Cantiana also refers in a footnote to a curious incident explained in greater detail by John Lyon.³ About the beginning of the eighteenth century, “After the Warden of the Cinque Ports declined holding a court of appeals, at Shepway, that place was soon deserted, and they removed the Records, the Doomsday Book of the Ports, and their other Manuscripts, to Dover Castle, as a place of safety,” and deposited them in the porter’s lodge.⁴ Since many of the records were written on enormous pieces of parchment, the local tailors became interested in using them for sewing patterns, and the porter – apparently in exchange for a bribe – left the room unlocked, so that the “tailors were suffered to take away parchments, to cut up for measures, and every one made what havock he pleased with them.”⁵ This was a very grave loss for the history of all the Cinque Ports, and thus for English commercial history, since these “ancient writ-

1 Hall, p. 25. 2 Archaeologia Cantiana, Vol. I, p. 52. The episode is briefly mentioned by Sharpe, Sir Robert Cotton, p. 58, and by Tite, The Panizzi Lectures, p. 24. 3 Archaeologia Cantiana, Vol. I, p. 54, fn. 1. 4 Lyon, The History of the Town and Port of Dover and of Dover Castle, p. 114. 5 Lyon, p. 114; Archaeologia Cantiana, Vol. I, p. 54, fn. 1; Batcheler, A New History of Dover and Dover Castle, p. 61. https://doi.org/10.1515/9783110791464-006

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ings […] contained an account of the rights and privileges of the inhabitants of the Cinque Ports, and the services they owed to the King, from a very remote period.”⁶ Archaeologia Cantiana in the same footnote makes an oblique reference to records arson: “Mr. Rodd has recorded wholesale burnings of Dover Castle muniments.”⁷ Edward VI had Dover Castle’s Clopton Tower completely rebuilt as a repository for the Castle’s records.⁸ Then, however, “one Levenste, out of mere malice, on finding his competitor, John Monyings, preferred before him to the office of lieutenant governor, burnt and destroyed the whole of these valuable books and parchments.”⁹ (He thereby definitively demonstrated his own unsuitability for the position). In the end, due to records theft, destruction, and various preservation disasters involving damp, it appeared that the only Cinque Port “in which the magistrates preserved their ancient customal” was Sandwich.¹⁰ Nevertheless, it is likely that Hall’s dark remarks relate specifically to Sir Edward Dering’s activity. Hall sees the provincial analogue to the siphoning of official State correspondence by government servants into their own private collections as the pilfering of interesting primary sources by “enterprising antiquaries.”¹¹ Similarly, Fussner notes that “On the whole, local records […] suffered more from the depredations of antiquaries bent on collecting records than […] the national archives in London.”¹² However, Gajda and Cavill note a developing concern to ensure the survival of records in the Tudor and Stuart eras on the part of “local elites,” and cite the efforts of John Hooker to gather and organize Exeter’s archives.¹³ The Civil War wrought a similar destruction on some parish records to the fate suffered by dissolved monasteries’ records as reported by Aubrey. Not only did the war bring about a total breakdown of parish administration in some areas (which did not see the revival of record-keeping for long after, in one case not until the early eighteenth century), but some parish registers in parts of Berkshire also “appear to have been stolen, probably burnt for fuel by the soldiers.”¹⁴

6 Lyon, p. 114 – 115. 7 Archaeologia Cantiana, Vol. I, p. 54, fn. 1. 8 Batcheler, p. 63. 9 Batcheler, p. 63. 10 Lyon, p. 115. 11 Hall, p. 7. 12 Fussner, p. 88. 13 Gajda and Cavill, “Introduction,” p. 39 – 40. 14 Sampson, “The Impact of the English Civil War on Berkshire’s Records.”

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The keeping of legal records The foregoing discussions of records losses and of the Royal Fishmonger’s involvement with the records of the Court of Wards and Liveries raises the important question of how legal records in general were kept. (In this chapter the broader definition of ‘records,’ encompassing more than the strict common-law ‘produced-by-a-court-of-record-and-enrolled’ sense, is used.) These traditionally had a special status as part of the Crown’s treasure, which explains why, well into the nineteenth century, the individual records repositories of the Common Pleas or the King’s Bench were still termed ‘treasuries.’¹⁵ For its part, Parliament described court records as “not only the records of the king and kingdom, but the evidence of every man’s particular right.”¹⁶ Given that access to legal records was “crucial and routine” in a society dominated by precedent, this is hardly surprising.¹⁷ The Crown and Parliament both had a stake in the preservation of legal records, which were under “their special protection and direction.”¹⁸ According to Hallam, however, instead of enjoying particular practical solicitude, legal records were in fact “rather less well organised and preserved” than other types of records.¹⁹ Though justices’ plea rolls and other court records were meant to be deposited in the Treasury of the Exchequer, Hallam notes that the justices often retained them up until 1257, while Thomas observes that despite the deposit requirement, “some portions of the Records became scattered.”²⁰ Of course, legal records were also affected by the mediaeval custom of the movable Royal court examined previously, with its itinerant curia regis from which the Court of Common Pleas was eventually separated – and made stationary – by Clause 17 of Magna Carta.²¹ Also in the thirteenth century, Henry III decreed that three courts of judgment be set up centrally in Westminster Hall, the oldest part of the Palace of Westminster: the common law courts of Common Pleas (for cases between subjects) and King’s Bench (for cases involving the monarch), as well as the equitable court of Chancery.²² Both the Chancery and the Exchequer 15 Bayley, p. 225. 16 Bayley, p. 225. 17 Kate Peters, p. 153. 18 Thomas, Notes of Materials, p. 116. 19 Hallam, “Nine Centuries,” p. 29. 20 Hallam, “Nine Centuries,” p. 29; Thomas, Notes of Materials, p. 116. 21 Thomas, Notes of Materials, p. 116. “Common pleas are not to follow our court but are to be held in some fixed place”: Magna Carta, Clause 17. 22 Thomas, Notes of Materials, p. 116, 147. Under the Tudors further courts were formally added to this complex, including the prerogative Court of Star Chamber, the feudal Court of Wards and Liveries, the equitable Court of Requests, and the Henrician Court of Augmentations, founded to ad-

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had administrative and equitable judicial functions, with the result that records storage could become confused. For example, the Exchequer Chamberlains and Lord Treasurers held “abundance of Records in bags,” including judicial records (pleas, court rolls, and deeds of purchase of Royal property), and administrative records such as auditors’ accounts.²³ By the early modern era, “older plea rolls” that were still extant were preserved in the Exchequer repositories, but those from the sixteenth century (and some older ones) “were kept in offices adjacent to the Courts of King’s Bench and Common Pleas, to which they belonged,” and the Chancery records beginning with Henry VII were divided between various Chancery repositories such as the Rolls Chapel and Rolls House itself, “in the custody of the Master of the Rolls.”²⁴ While the Chancery officials had historically sent all their records, whether administrative or judicial, to the Tower repository, this practice broke down at some point after the reign of Edward IV, and Chancery records from then on were usually stored in the Rolls Chapel, although there were still occasional transmissions of judicial records to the Tower into the nineteenth century.²⁵ In the 1631 Repertorie of Records it is noted that the Tower and the Rolls Chapel contain the same kinds of records, but of differing antiquity. Powell/Agarde explain that the Tower is “the Repositorie of the Chappell of the Rolls of the Chancerie, to receive their older Records, which are more ancient than primo of Richard the third. [i. e. 1483]. All which, the Master of the Rolles heretofore hath sent over to the Tower. And keepes in the Chappell, onely those that are of more Recencie.”²⁶ In modern terms, this indicates that at this point the Rolls Chapel was viewed as current or semi-active records storage, and the Tower repository as the actual archive, although early modern notions of ‘recency’ were clearly very different from ours. Many legal records, going back in some cases over two hundred years, remained in the clerks’ offices to generate revenue in the form of search fees.²⁷ These offices included the Chancery’s judicial Six Clerks and the Exchequer Remembrancers as well as the Exchequer’s financial Clerks of the Pipe and of the Pells.²⁸ Furthermore, the records of other courts, whether common-law or prerogative, were governed by each court’s respective, independently drafted records

minister expropriated Church possessions during the Reformation. (Thomas, Notes of Materials, p, 147; Toomer, p. 52; The National Archives, “How to look for Court of Requests records 1485 – 1642.”) 23 Thomas, Notes of Materials, p. 148. 24 Toomer, p. 53. 25 Thomas, Notes of Materials, p. 149. 26 Agarde/Powell, Repertorie, p. 5. 27 Fussner, p. 70. 28 Fussner, p. 71; Toomer, p. 53.

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management and disposal regulations.²⁹ In the case of court records retained by their clerks, they were stored “in rooms adjacent to the court to which they respectively belonged, unsuited for inspection, the searches were hurriedly made, the records misplaced; this gradually increasing, they eventually became useless to the public and neglected.”³⁰ Over time, the provenance was lost altogether. It was “hardly, indeed positively not, known to what courts they belonged; they became, in fact, miscellaneous.”³¹ (Emphasis added.) The records of the new Tudor courts, which belonged to this group of records retained by the courts themselves, were particularly vulnerable after the Long Parliament abolished them, as a result of which most of these records were forever lost.³² A spectacular mishap took place in the context of office storage of court records in 1621: in a fire at the office of the Six Clerks many essential court records were destroyed, and the Crown issued a printed proclamation that “all parties producing originals or authentic copies of such records shall have them re-inrolled without charge,” and also “that fresh examinations of witnesses, &c. shall be made in cases where the pleadings relating to unfinished suits at law are destroyed.”³³ In general, court records were spread over many different repositories. Although in the fourteenth century the plea rolls of the extremely important Court of King’s Bench were split between Westminster and the Tower of London, some King’s Bench records later found their way into storage “above a cook shop,” which by 1709 had been turned into a stable and wash house.³⁴ (Clearly all three functions would have created dangerous amounts of rising humidity.) Plea rolls from the Court of Common Pleas were stored in St Bartholomew’s Church in Smithfield, where, in 1384, it was found that they had been subject to water damage via the roof; they were finally moved to the Tower of London repository in 1461.³⁵ The Chapter House repository, examined in the previous section on preservation, held further King’s Bench and Common Pleas records, together with the records of the abolished prerogative Court of Star Chamber which had been lying for “many years in a great heap, undigested” (not a reference to their nourishing of rodents, but to the fact that they were unprocessed in records editions or calen-

29 30 31 32 33 34 35

Fussner, p. 71. Thomas, Hand-Book, p. xxvi. Thomas, Hand-Book, p. xxvi. Toomer, p. 53 – 54. Cal. State Papers Dom. (1619 – 23), p. 324, 333 – 334. Hallam, “Nine Centuries,” p. 29, 33. Hallam, “Nine Centuries,” p. 29 – 30.

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dars) on the damp ground, a prey to rats and mice, while some chests in the Chapter House contained treaties with foreign powers in a disorganised state.³⁶ At the founding of the Public Record Office in 1838 the ancient deeds, which related primarily to property (Crown lands, former monastic property, and private holdings), were still scattered between the Chapter House, the Rolls Chapel, the State Paper Office, the Tower repository, the Office of the Duchy of Lancaster, the Office of the Queen’s Remembrancer, the Court of Augmentations, the Land Revenue Office, and other places, “and they continued scattered long after their removal to the Public Record Office.”³⁷ Furthermore, within these storage spaces, some deeds were kept in boxes known confusingly as ‘County Bags,’ “while others have been labelled as ‘Deeds Domestic,’ ‘Deeds Undescribed,’ ‘Miscellaneous Deeds,’ and the like, there being at least three different sets of ‘Deeds Various.’”³⁸ From 1886 – 90 a trove of previously unknown ancient deeds was found “in huge sacks of Chancery Miscellanea,” and other ancient deeds were discovered misfiled in “the so-called ‘Paper Documents,’ ‘Royal Letters,’ ‘Parliamentary Petitions,’ and in other recognised classes.”³⁹ There was no systematic numbering of the deeds, so that the nineteenth-century record officers who rescued them could not even estimate how many deeds there were.⁴⁰ While different arrangement methods had been imposed prior to 1886, they were never completed: “Those of one series had been placed in chronological order, those of another had been sorted according to counties, and those of a third alphabetically under the names of manors and parishes.”⁴¹ Then again, thousands of deeds “were in no order whatever.”⁴² As a result of these various factors, those finding aids that existed “were in every case imperfect, and in most cases practically useless.”⁴³ The records of the Queen’s Remembrancer, the chief official of the Court of Exchequer, were surveyed and described by a Record Commission Report in 1836.⁴⁴ They were discovered in six hundred sacks, “all in a most filthy state, and for that reason scarcely legible; and if a document required as important evidence was known to exist somewhere in that miscellaneous collection, the labour

36 37 38 39 40 41 42 43 44

Thomas, Notes of Materials, p. 137; Hallam, “Nine Centuries,” p. 30. Maxwell-Lyte, A Descriptive Catalogue of Ancient Deeds, Vol. I, p. v. Maxwell-Lyte, p. v. Maxwell-Lyte, p. v. Maxwell-Lyte, p. v. Maxwell-Lyte, p. v. Maxwell-Lyte, p. v. Maxwell-Lyte, p. v. Thomas, Hand-Book, p. xxvii.

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and disgusting nature of the search can be better conceived than described.”⁴⁵ The sacks themselves were housed in a number of “sheds in the King’s Mews” (the royal stables) which contained, altogether, “4,136 cubic feet of national records” enveloped in “the accumulated dust of centuries.”⁴⁶ All these records were “very damp,” with some “in a state of inseparable adhesion to the stone walls […] numerous fragments […] had only just escaped entire consumption by vermin, and many were in the last stage of putrefaction.”⁴⁷ Some had become so fragile through damp and decay that they could hardly be touched, while “others, particularly those in the form of rolls, were so coagulated together that they could not be uncoiled.”⁴⁸ The fact that vermin had been feasting on them over the centuries was made clear by the “Six or seven perfect skeletons of rats […] found imbedded,” with additional rat bones distributed throughout.⁴⁹ It was necessary to engage a dog to chivvy the live rats out of the records before the sortation could begin.⁵⁰ (Thomas notes grimly that the Commission’s observations “will serve as equally applicable to other records.”⁵¹) In the third PRO Deputy Keeper’s Report of 1842, Joseph Hunter, Assistant Keeper at the Augmentation Office, described the time- and skill-intensive rescue operation carried out by his team on these records, as well as others of the Courts of Augmentation and of the Exchequer, and the records in the Chapter House.⁵² Concerning the records of the Queen’s Remembrancer, he observed that Of the state in which a very large proportion of these very valuable documents are before they are submitted to the processes which go on here, it is difficult for any person who has not inspected them with some degree of attention to form any conception. Most of them have every appearance of having been thrust into all kinds of unsuitable repositories, where they have been exposed to damp and other means of injury, and not a few have the appearance of having been trodden under foot; crumpled, dirty, torn, dismembered, express but imperfectly the state in which very many of them are.⁵³

45 46 47 48 49 50 51 52 53

Thomas, Hand-Book, p. xxvii. Thomas, Hand-Book, p. xxvii. Record Commission Report of 1836, quoted in Thomas, Hand-Book, p. xxvii. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Hunter quoted in Palgrave, Appendix II of the Third Deputy Keeper’s Report, ps. 9 – 10. Hunter in Palgrave, p. 10.

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Many of them also seemed to have “been soaked in water,” and some had “layers of parchment glued together” and “large holes rotted in them.”⁵⁴ Furthermore, previous to this rescue operation it was completely impossible to use these records, since they were in a “state of absolute confusion” with classes and series of records jumbled up together, making it impossible to “access […] any particular document, although it might be known that such document was somewhere in the mass.”⁵⁵ Some records rolls were missing membranes, stitches in their seams had come apart, the ligature at the start of the roll was severed so that the once-connected records lay in bits, or strings somewhere inside the roll were broken, so that the individual records were scattered “through the mass,” while leaves from the (probably Royal) Household’s accounts books could be found interspersed throughout.⁵⁶ This mass of documents contained records of high historical, legal, and, indeed, constitutional importance, including a number of “authentic copies of early Acts of Parliament” apparently omitted from the official, published statute collections.⁵⁷ The Rolls Chapel, which contained the Patent Rolls, similarly illustrates the problems for archivists in attempting to retrieve records from it. By the 1770s the Chapel was so neglected “that the documents were in danger of decaying altogether,” and in 1833 the Record Commissioners found that the Chapel seats were actually being used to house records.⁵⁸ Further, the Patent Rolls themselves were “On the ground […] in a spot so dark that no one can see to read any one there, and a candle is not properly allowed,” so that the right roll could only be found “by guess matured into habit.”⁵⁹ In 1842 Henry Cole (the erstwhile rat-finder mentioned previously), now Assistant Keeper at the Carlton Ride, reported on another very important class of records, the Rolls of the Court of Common Pleas, many of which were in an “inconsultable state.”⁶⁰ This was partly because of the way in which the rolls had been stored: “Rolls containing 1,800 membranes had, in fact, ceased to be Rolls, but were huge twists; and the unsuccessful attempts to tie them up as rolls, and consequent inability to do so tightly, have caused in most cases the destruction of the opening membranes of the Roll.”⁶¹ Cole suggested that “If any one would take a thick book of several hundred pages […] and instead

54 55 56 57 58 59 60 61

Hunter in Palgrave, p. 4. Hunter in Palgrave, p. 10. Hunter in Palgrave, p. 4. Hunter in Palgrave, p. 11. Hallam, “Nine Centuries,” p. 35. Hallam, “Nine Centuries,” p. 35. Cole quoted in Palgrave, Appendix I to the Third Report, p. 23. Cole in Palgrave, p. 23.

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of allowing the leaves to lie flat, were to attempt to roll them up, he would obtain some notion of the way in which the Common Pleas Rolls were made up.”⁶² Further transfers of legal records to the PRO detailed by Thomas in the midnineteenth century revealed the disastrous conditions in which they had been kept over the many preceding centuries (1843: “eight waggon loads of documents of all kinds from the Plea Side of the Queen’s Bench alone, mixed and in great disorder”; 1848: thirty-five sacks of Queen’s Bench records discovered in the basement of one of the Inns of Court; 1849: “the proceedings of the Court of Wards and Liveries and Court of Requests, or at least a part of those proceedings, confusedly mixed together, and many other records with them, – in fact it is a miscellaneous mass –, […] in ninety large sacks”).⁶³ Thomas then relates a shocking incident at a cheesemonger’s shop in 1852, where “one of the record workmen had some article which he had purchased […] wrapped up in two leaves of a docket book of the Common Pleas, which dockets serve as indexes.”⁶⁴ Further enquiry at the shop resulted in the purchase of “a considerable fragment of the volume […] for one shilling and sixpence.”⁶⁵ Thomas adds grimly that “This fact will account for the many deficiencies to be found in the records as transferred to the Public Record Office, and the necessity for such an establishment.”⁶⁶ These records would have made their way to the cheesemonger’s shop from the current storage of the Court of Common Pleas, since “this docket book […] commences in Trinity Term 1807, and comes down to 1814,” while the most recent accessioning of these docket books only went up to 1800.⁶⁷ As an example of the conservation challenges produced by the record-keeping conditions over the centuries, Thomas provides a starkly visual impression of a hideously crumpled and squashed roll from the Court of Common Pleas, noting (somewhat infelicitously in light of the cheesemonger imbroglio) that “This record in its proper state would be in the form of an enormous Cheshire cheese,” but that in this distorted condition it could not be consulted.⁶⁸ A pioneering restoration attempt on this roll was successful – though considerably expensive – and the roll’s vital importance for contemporary court proceedings was shown by the fact that “a few days afterwards it was examined by a record agent for professional purposes, who took an extract from it sufficient to enable him to bring a cause then pend-

62 63 64 65 66 67 68

Cole in Palgrave, p. 23. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Thomas, Hand-Book, p. xxviii. Record Commission Report of 1836, quoted in Thomas, Hand-Book, p. xxviii. Figure facing p. xxix of Thomas, Hand-Book.

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ing to a satisfactory issue.”⁶⁹ Despite this success, it was decided to prioritise sortation and arrangement over restoration in the rescue operation.⁷⁰ Thomas notes that the government had passed an Act (in 1844) to require judges of the superior Irish courts to inspect the preservation and accessibility conditions of their courts’ records on the first day of each term, and comments that English court records had needed such protection for centuries.⁷¹ The consequences of poor records preservation for the enforcement of subjects’ rights in general were highlighted when the extremely incomplete state of the records of fines for Wales, for example, meant that in the Victorian age an Act of Parliament had to be passed “to defend the rights of the parties.”⁷² Not all important court records affecting the rights and privileges of English subjects were actually located in England. In the seventeenth century the attorney Thomas Powell bemoaned the fact that ecclesiastical court records concerning payments of tithes, privileges, and so on, affecting “bodies politique or private” and usually granted and “confirmed by the Popes visitant in England,” were located in their most complete (and “carefully preserved”) state in Rome.⁷³ Even though the corresponding English records were often lost, these rights and obligations were still binding (“yet the Remembrance or Prescription of them holdeth his wonted force and validitie”).⁷⁴ In court proceedings there was often no recourse to evidence of these rights and obligations except “the memorie of Man, which may erre.”⁷⁵ Powell hopefully proposes going to Rome on a massive transcription expedition, if the interested parties would pay his way, in order “to bring them all exemplified faithfully into England within three yeares.”⁷⁶ This would clear up “many tedious and expensive Suits for matter of Prescription.”⁷⁷ The foregoing account suggests that Hugh Taylor presented an overly sanguine impression of order and accessibility in his 1969 lecture to Canadian archivists on the English archival system: “Most of the public archives of England grew out of the courts of law which were also courts of record, where the evidence of public

69 70 71 72 73 74 75 76 77

Thomas, Hand-Book, p. xxix. Thomas, Hand-Book, p. xxix. Thomas, Hand-Book, p. xxviii-xxix. Thomas, Notes of Materials, p. 115. Powell, p. 74 – 75. Powell, p. 75. Powell, p. 75. Powell, p. 76. Powell, p. 76.

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transactions, whether legal, financial, or testamentary, were filed and kept as a service to the community.”⁷⁸

78 Taylor, “Archives in Britain and Canada,” p. 22.

5 Arrangement and description: Inventories, calendars, and records editions As the previous sections suggest, arrangement and description and, with them, intellectual control were often seriously lacking, facilitating misplacing and embezzlement.¹ Not only was current records management chaotic, but disorder also continued to flourish once the records had reached the archival repositories. Here again, Henry VIII’s correspondence is a case in point. Brewer observes that “special modes of arrangement were adopted in different offices; and not unfrequently the system pursued under one officer was modified or reversed by his successor.”² In the seventeenth century, “when the Treasury of the Exchequer was rifled of its most precious contents” and the latter were added to the private Cotton collection, apparently with the approval of Exchequer record-keeper Arthur Agarde, “the original bundles appear to have been broken up.”³ Henry’s correspondence was then subjected to various partial arrangements – topographical, diplomatic, alphabetical – but these were neither completed, nor carried out in a precise manner.⁴ (This would, indeed, have been impossible precisely because the series had been split up between different repositories.)⁵ As a result, “these successive attempts at arrangement ended […] in utter confusion.”⁶ Additionally, as no record had been kept of the various arrangement changes, Brewer was unable to reconstitute the original, “primitive arrangement.”⁷ In the end he was forced to bring the various dispersed series together and painstakingly sort them chronologically: “extremely difficult and fatiguing” as well as research-intensive given the frequent “total obliteration of all traces of their original sequence.”⁸

1 For example, the forest records were the subject of an anonymous complaint to Lord Burghley in 1573 that these were stored “in bags confusedly, whereby […] it is an easy thing for a stranger, finding a roll or leaf inconvenient or against him, to convey it away, as it seemeth the like hath been done, which cannot be missed as there is no certain note how many rolls there be, etc.” After outlining these and other breakdowns and abuses, the complainant made a public-interest argument for funding the arrangement, description and re-depositing of various records —such as the diplomatic treaties— in the Abbey’s Old Treasury, on the grounds that the records affected related not only to “the Queen’s rights but also many of her subjects’ lands and titles.” (Wernham, p. 19.) 2 Brewer, p. ix. 3 Brewer, p. ix. 4 Brewer, p. ix. 5 Brewer, p. ix. 6 Brewer, p. ix. 7 Brewer, p. ix. 8 Brewer, p. ix-x. https://doi.org/10.1515/9783110791464-007

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Brewer notes gloomily that “often […] the success bore no proportion to the time and labor spent upon it,” and adds that “Nothing seems more easy or obvious after the true order has been discovered; nothing is more perplexing before.”⁹ (It is not clear whether Elton, when annoyed at various aspects of this Victorian arrangement of Tudor papers, appreciated the Stakhanovite effort involved.)¹⁰

Records containers and inventories Additional eccentricities of the English archival system added to the difficulties faced by record officers in locating records even within a single repository. One such practice was the use of a wide variety of containers for the records. Palgrave, clearly entertained by this array, listed them as follows in the nineteenth century: “Chests, bound with iron; – forcers or coffers, secured in the same manner; – pouches or bags of canvas or leather; – skippets, or small boxes turned on the lathe; – tills or drawers; – and hanapers or hampers of ‘twyggys.’”¹¹ These containers are not indicated in Agarde’s finding aids to the Exchequer records by anything approaching a modern system of shelf-marks, but with a mixture of letters, inscriptions, “tickets or labels,” and even pictograms containing “some reference to the subject-matter of the documents.”¹² Thus a Lochaber axe was chosen to represent Scotland, an “oak sapling” to mark the rolls of the “Justices of the Forest,” three herrings united for Yarmouth, clasped hands for royal marriages, and “an Irisher […] in a very singular hood and cape” for Ireland.¹³ (Palgrave was so charmed by this quaint system that he reproduced each tiny drawing in his nineteenth-century facsimile of these finding aids). The French archival scholar Paul Delsalle, examining Agarde’s repertories, commented that “the range of storage containers used […] suggests that little thought was given to either intellectual arrangement or to the ease of subsequent retrieval.”¹⁴ However, this remark does not do justice to the great effort and time invested by Agarde in describing the records and providing guidance on how to find them. His inventory of the Court of Receipt Treasury records revealed “an arduous struggle to domesticate a mob of bags, chests, baskets, shelves, and books

9 Brewer, p. x. 10 MacCulloch, p. viii. 11 Palgrave, Antient Kalendars, Vol. I, p. xxvi. 12 Palgrave, Antient Kalendars, Vol. I, p. xxvi-xxvii. 13 Palgrave, Antient Kalendars, Vol. I, p. xxvii. 14 Delsalle, A History of Archival Practice (trans. Procter), section 6.2.3.

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that both hid and preserved some of England’s most significant documents.”¹⁵ The time-consuming nature of Agarde’s work is best evoked by his own complaint that it had taken him “a quarter of a yeare” to appraise the records of evidence given by Gunpowder Plot leader Robert Catesby “out of twoe great hamps delivered in to me by my late Lord Threasaurer th Earle of Dorset, by the commaundment of Sir Henry Hubbard Attorney Generall.”¹⁶ Two aspects are especially interesting here: Agarde’s note that he “selected” these records out of the hampers suggests that he actively appraised the records delivered to him, like a modern archivist, and Thomas Wilson’s own inventories show that he also (at least for a time) held documents relating to the Gunpowder Plot, seized from the Crown prosecutor Sir Edward Coke.¹⁷ This detail suggests a rivalry between Agarde and Wilson to accession the most important (and sensitive) records of the day, despite the fact that Agarde’s responsibility included the public records. In the absence of a shelf-mark system, Agarde gives detailed instructions for locating the records presses in the various treasuries, in terms that call to mind a complicated country-dancing figure. “In the Seacond Threasaurie […] are conteined these recordes following in presses which I will declare, in goinge round about the same […] On the left hand at the cominge in, the next presse marked wth chalke […] Now returninge backe with a rancke of dubble presses, beeinge in the middest of the rome.”¹⁸ In the separate Treasury of the Court of Receipt, records were hanging in bags on the walls: “Next the doore on the left hand […] a bag intitled, Regemannorum, in which are Inquisitions made in divers shires through the hundredes, touching Liberties, &c. withdrawen and withholden from the Kinge” in the reign of Edward I.¹⁹ Unsurprisingly, Domesday Book was one of the records highlighted in this finding aid, described as “Two of the most auncyentest bookes of record in the Realme, made in William the Conquerers time (called Domesdei,) in the xxth yeare of his raigne.”²⁰ Elsewhere Agarde describes “Twoe great bagges of Survey of sondry dissolved Abbayes, by Cardinall Wollsey and such like.”²¹ Another ‘bagge’ of “evidences and courtrolles of Wykes Abbay, dissolved by Cardinall Wolsey,” is described as hanging “over the third chest,” though

15 Popper, “From Abbey to Archive,” p. 259 – 260. Clearly the hiddenness, whether intentional or not, would have had a preservation advantage. If records could not be found, they could not be used. 16 Agarde, Compendium, p. 325. 17 Agarde, Compendium, p. 325; these inventories in TNA SP 45/20 are discussed in Part Three. 18 Agarde, Compendium, p. 322 – 323. 19 Agarde, Compendium, p. 321. 20 Agarde, Compendium, p. 316. 21 Agarde, Compendium, p. 317– 318.

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whether this chest was in a different room is unclear.²² One particularly intriguing item in this finding aid is the “Bagges of the Treasons of Sir Thomas More” and numerous other ‘traitors,’ discussed earlier.²³ (Treasonous plots were also an area of emphasis in the State Paper Office’s accessioning, as discussed in Part Three.) In the extra-secure treasury in the cloister of Westminster Abbey, “with 5 stronge keyes and within two strong double dores,” Agarde notes that there were fifteen buckram bags “In twoe chestes under the window there […] wherein are contained the leagues betwixt the Kinges of England and sundry other nations.”²⁴ This strong-room also held “The bagg of matters touching the divorce of H. 8. from Queene Katherine.”²⁵ The extra security underlines these divorce records’ particular importance to the English Crown and succession. As can be seen from the foregoing, Agarde’s descriptions are rather vague and miscellaneous, often reliant on the word ‘sundry.’ This is because he was, by his own admission, working from memory rather than surveying the contents of the repositories on the spot, though why he chose this approach is unclear: “I have thought good to sett downe in what Threasauries the records are to bee found, and what records are layd upp in each Threasurie (soe farre forth as my memory shall serve me,) beeing a great multitude, and the diversitie and particulars thereof I am not hable to recount at large hearin.”²⁶ Of course, it may be that Agarde did physically visit the repositories for this finding aid, but did not have time or energy to look inside all the various records containers to add detail to his descriptions. That he was overworked is suggested by the fact that Robert Cotton assisted him with writing the Compendium. ²⁷ It is important to bear in mind that these finding aids were not necessarily intended to be definitive. Indeed, as has already been shown, frequent reference is made to further dedicated catalogues and bound summaries of the various records described – those volumes which the subsequent record-keepers were often unable to find. It seems that, on occasion, ad hoc finding aids were put into the bags of records themselves: “Item, a Bag of canvasse of speciall Records, abbreviated into a sheet of Paper being in the Bag.”²⁸ Such vagueness is even more pronounced in Powell’s later Repertorie of Records, in which he included and updated Agarde’s work on the Exchequer treasur-

22 23 24 25 26 27 28

Agarde, Compendium, p. 322. Agarde, Compendium, p. 324. Agarde, p. 332, 335. Agarde, p. 334. Agarde, Compendium, p. 312. Hallam, “Arthur Agarde and Domesday Book,” p. 254. Agarde/Powell, Repertorie, p. 18.

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ies: for example, the Office of the King’s Remembrancer contains “certaine small bundles of loose Papers […] collected by way of Alphabet, of sundry Kings times confused.”²⁹ Similarly, Powell notes that the Tower contains “Some Parliament businesses &c” as well as “Some Forreigne businesses (as Treaties) &c,” descriptions so open-ended as to be totally useless to the searcher.³⁰ It is clear that sometimes Powell and Agarde themselves were not entirely certain of the records’ physical locations. Powell’s overview of the Tower records ends with an inventory “of the severall Records in the Office of the Tower, placed in uncertaine places, but most commonly in the Study.”³¹ These records include not only precisely those bundles of Parliamentary petitions for which Ayloffe later searched in vain, based on Powell’s inventory – raising the possibility than even in Powell’s day, they could not be reliably located – but also various statute rolls, including a copy of Magna Carta, apparently from the times (temporibus) of the first three Edwards.³² Of course, managers of current records could create significant problems for archives-keepers, as shown by a note on Powell’s Direction for Search of 1622. He refers to “The Roll called Watsons Roll, contayning diverse Grants and other things confusedly and promiscuously layd together; which one Watson (sometimes Clarke of the Great Seale, that is to say, betwixt the thirtieth and fortieth yeares of the late good Queene Elizabeth) did for six or seven yeares together keepe in his Chest, and vpon his death they were found, and brought into the Chaple of the Rolls.”³³ While Watson caused significant chaos by sewing these unconnected records together, it seems that no attempt was made by the archives-keepers to untangle the mess. This should not be taken as a sign of general neglect, however: not only had Agarde made the numerous records calendars alluded to previously, he also attempted various other measures to assist searchers of particularly important records. Of the Quo Warranto records from the reign of Edward I, Agarde notes that they were “put by me, some two shires in a bagge, and some one shire, for the more easy findinge and preservation where before they lay confused together.”³⁴ Indeed, it is clear that Agarde took special care with the ordering and description of certain records. The foot of fines was the official third copy of mediaeval lawsuits, regarded as “the inaugural set of records made strictly for

29 30 31 32 33 34

Agarde/Powell, Repertorie, p. 143 – 144; Broadway, p. 68. Agarde/Powell, Repertorie, p. 11. Agarde/Powell, Repertorie, p. 211. Agarde/Powell, Repertorie, p. 211 – 212. Powell, p. 4. This passage is also discussed in Fussner, p. 80. Agarde/Powell, Compendium, p. 317. This passage is also mentioned by Yax, p. 65.

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archival reasons.”³⁵ According to Popper, the feet of fines from the reign of Henry III “had been mixed together in a large chest,” and these were sorted by Agarde in 1602 into “sundrie little bagges” of which some contained the feet of fines from one shire, while others contained those for more than one shire; these little bags were then placed in three larger bags labelled ‘A, B, C,’ each with a list of the shires contained therein.³⁶ (Clearly Agarde was particularly fond of the shire as a unit of archival arrangement.) In contrast to his often vague records descriptions, Agarde devotes noticeably greater detail to the material qualities and accompanying worth of the records kept in the Westminster Abbey cloister strong-room, suggesting a persistence of the mediaeval, treasure-oriented mind-set. Special attention is paid to gold seals and velvet boxes. Of a league between Henry VIII and Francis of France, he comments that the gold seal is worth at least £100.³⁷ Agarde also describes “a very faire booke covered with velvet, imbosed with silver gilt, touchinge the foundation of Westminster Chappell by Henry VII put into a box lined with crimson silke quilted” and “sondry bookes […] covered with blew velvet very faire imbossed” concerning masses, obsequies and dirges to be sung in perpetuity for the soul of Henry VII by assorted priests, monks, friars, and the two universities.³⁸ (Of course, the Crown may have had a pecuniary interest in these extremely detailed descriptions of materially valuable records.) While Arthur Agarde appears to have carried out his arrangement and description chiefly on his own initiative, the Elizabethan government did plan a project of gaining physical and intellectual control over treaties with foreign powers, though its realisation seems to have come in the Jacobean age.³⁹ In 1611 Lord Salisbury employed Agarde, Sir Robert Cotton and others to gather together in the Westminster Chapter House “all the commercial and diplomatic treaties ‘verie confusedlie mingled and thrust together’ throughout royal archives.”⁴⁰ They “gathered out of sondry Corners of the Threasauries divers leagues misplaced & lieng unknowen,” and “destinguished every Country wth whome or Princes and nation have had comerce and Traffique,” sorting the documents first by these treaty partners (i. e. France), and then chronologically within each of these national categories, storing the documents in “boxes or bags […] labeled by treaty partner and

35 36 37 38 39 40

Yax, p. 58. Popper, “From Abbey to Archive,” p. 260. Agarde, Compendium, p. 333. Agarde, Compendium, p. 333 – 334. Ayloffe, p. xxix. Popper, “From Abbey to Archive,” p. 260.

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year.”⁴¹ They then carried “these baggs & boxes into a Treasaury in Thabbey of Westminster […] And […] placed them in chests And marked the contents thereof.”⁴² This had the effect of “turning the Chapter House into a single orderly archive for foreign treaties.”⁴³ Finally, they produced a detailed catalogue of the collection, including an inventory of the Crown’s treaties with the Scots.⁴⁴ Agarde hoped that this project would represent the definitive processing of the treaties and obviate the need for any further work in this area “for manie ages after.”⁴⁵ The undertaking built on the work of legal historian, antiquary, and former Tower record-keeper William Lambarde in his Pandect of the records in the Tower (presented by Lambarde to Elizabeth I in 1601, an episode examined later), following the same scheme of organising the treaties first according to treaty partner and then chronologically.⁴⁶ However, the key difference – and improvement on Lambarde’s approach – was that the intellectual order of the records in Agarde’s repertory mirrored the physical order of the records in the newly-established repository.⁴⁷ Popper suggests that Agarde’s catalogue, which was heavily used and copied by government officials, may have inspired Thomas Wilson’s 1618 arrangement and description of diplomatic records in the State Paper Office, which followed the same country-based, then chronological scheme, and strictly adhered to this rule of correspondence in organisation between finding aid and physical archive.⁴⁸ By contrast, the efforts of William Prynne to gain control over the Parliamentary Writs were adjudged in the nineteenth century to have borne little useful fruit.⁴⁹ Prynne’s work was extraordinarily non-neutral, so heavily influenced by his own particular interpretation of English constitutional history and its normative demands on contemporary politics as to render it unusable – criticisms which will be examined in more detail in Part Two. He also inadvertently demonstrated that the making of records editions could introduce new disorder, even with the best intentions. Palgrave discovered that Prynne (as well as a later deputy Tower record-keeper called Holmes) had assembled new bundles of records out of partially broken ones – thereby aggravating an already disturbed original

41 42 43 44 45 46 47 48 49

Popper, “From Abbey to Archive,” p. 260. Popper, “From Abbey to Archive,” p. 260. Popper, “From Abbey to Archive,” p. 260. Popper, “From Abbey to Archive,” p. 260 – 261. Popper, “From Abbey to Archive,” p. 261. Hallam, “Nine Centuries,” p. 36; Popper, “From Abbey to Archive,” p. 261; Broadway, p. 69. Popper, “From Abbey to Archive,” p. 261. Popper, “From Abbey to Archive,” p. 261. C. P. Cooper, An Account, p. 28.

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order – and then placed the new bundles “in a dark passage, where they remained until the year 1801, when they were removed (and, as it should seem, without any further examination) and placed upon the present shelves, where they have continued unconsulted and undisturbed, (excepting as to a few stray bundles or parts of bundles, brought into the Wakefield Tower,) until the present day.”⁵⁰ Palgrave had this records mass surveyed and found that it contained approximately 388,400 forgotten documents in nearly two thousand bundles, many of them labelled in Prynne’s handwriting.⁵¹ Indeed, Hall viewed the making of finding aids, editions, and calendars as a useless distraction from more urgent work. Relating the later example of the ‘Methodizers,’ a group of antiquaries appointed in 1763 to process the records, he concludes that their “thirty years of ‘methodizing’” resulted in a few inadequate finding aids.⁵² He sees this failure as emblematic of a misdirection of labour and “hundreds of thousands of pounds” away from records storage and security, preservation, and arrangement into the production of “worthless texts, imperfect calendars, and misleading indexes” throughout the centuries from Charles I to Queen Victoria.⁵³ The problems with defective finding aids even led to a vicious circle in the nineteenth century, when W. H. Black, a record-keeper at the PRO, found himself unable to progress rapidly in making finding aids because his time was taken up with the speculative production of great quantities of documents for searchers of the Exchequer records – for which no usable finding aids existed.⁵⁴

Calendars and records editions: A complicating factor Prynne’s great project demonstrates a feature of English archival practice that complicates the question of access to original sources. This is the publication of so-called ‘calendars,’ digests or copies of records in bound form which occupy a liminal zone between finding aid/index/repertory and primary source collection. Hall used the word ‘calendars’ to refer to collections of record summaries, of which he strongly disapproved: “A Calendar obviously differs from an Index in giving the epitome of a text or texts. In one sense therefore a Calendar is a text, or substituted text.”⁵⁵ (Emphasis added.) Sometimes the word ‘calendar’ was used

50 51 52 53 54 55

Palgrave, Third Deputy Keeper’s Report, p. 23. Palgrave, Third Deputy Keeper’s Report, p. 23. Hall, p. 26. Hall, p. 26 – 27. Cantwell, The Public Record Office, 1838 – 1958, p. 86. Hall, p. 106.

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to refer to a complete records edition, while it is clear from Hunter’s report on the state of the records of the Queen’s Remembrancer that it was sometimes used to mean a simple finding aid (directing the user to the original record), and Cooper uses the words ‘calendar’ and ‘index’ as if they were interchangeable.⁵⁶ Hall outlines the terminological confusion: while the official groups of calendars for the national records can be grouped into the three main categories of State Papers, Departmental Papers, and legal records, some of these so-called ‘calendars’ were really indexes, many ‘indexes’ and ‘catalogues’ were actually calendars, and some ‘calendars’ were unabridged primary source editions.⁵⁷ Often, calendars in their incarnations as detailed summaries or as complete records editions were meant to be used by researchers instead of the originals. Of records editions, Riordan observes that “Publishing was often an act of preservation in which the published record superseded the original, and this process was both influenced by and itself encouraged a tendency to privilege the content of records over their context,” with the result that English historians often paid insufficient attention to the provenance of their materials.⁵⁸ However, a calendar could also represent a sort of halfway house, minimising the consultation of the records but not necessarily excluding it altogether; Cooper argued that “A Calendar, or Index, of records, to be really useful, ought to be so full, that, on the face of it, the reader may be enabled to ascertain whether it will, or will not, be necessary for him to consult the original instrument.”⁵⁹ The practice of calendaring began extremely early, in the offices of current records, in reaction to the difficulty of locating documents needed for specific business.⁶⁰ This could lead to debacles, such as when, in a 1272 lawsuit brought by Christ Church Canterbury’s prior in Rome, Henry III insisted to Pope Gregory X that the Royal letters patent which the prior showed as his evidence must be forged, because they were not enrolled – in fact, his clerks had simply been unable to find the enrolled versions.⁶¹ Around 1282 the Exchequer’s Treasury of Receipt began work on a two-volume “calendar and compilation of earlier diplomatic documents,” which was completed ten years later; the documents, copied from and proofed against the originals, were arranged based on the foreign country con-

56 Hunter quoted in Palgrave, Appendix II of the Third Deputy Keeper’s Report, p. 10; C. P. Cooper, An Account, p. 32. 57 Hall, p. 106. 58 Riordan, Materials for History?, p. 74. 59 C. P. Cooper, An Account, p. 32. 60 Hallam, “Nine Centuries,” p. 27– 28. 61 Hallam, “Nine Centuries,” p. 27.

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cerned, and a similar edition summarising the King’s “wardrobe books and rolls” began in 1302.⁶² The phenomenon of the calendar presents a strange paradox: on the one hand the intent was to make the content of the records more widely accessible, at least in part, but on the other the existence of a calendar could be invoked as a justification for denying access to the original documents. To what extent the latter occurred is impossible to reconstruct. It is clear that the printing of records editions could have the psychological effect of making access to the originals appear to be a special privilege, and may therefore have served to support the system of extremely high fees, grace-and-favour, and patronage requests that persisted into the nineteenth century. It is possible that this was one of the motivations for official government records editions projects such as the monumental collection of diplomatic records called Rymer’s Foedera, begun by the Historiographer Royal Thomas Rymer in 1693, modelled on the Codex Juris Gentium Diplomaticus by Rymer’s correspondent Leibniz and compiled using the diplomatic records of the Westminster Abbey Chapter House – which, as already noted, had been reorganised for better access by Agarde and his team.⁶³ It is easy to imagine that this project would have been useful not just to historians perusing the edition in the record offices to which it was distributed, but also to a government newly constituted under William of Orange, who, as a recent arrival from the Netherlands, needed to become familiar with his new realm’s diplomatic obligations.⁶⁴ Such official editions were mainly meant for an internal, exclusive circle, a practice which remained consistent after the period under review: Rymer’s Foedera was distributed to “government offices, including the major records repositories, or as gifts for members and friends of the government,” while the 1767 limited edition of the Parliament Rolls was given to a narrow Parliamentary circle, including the bishops as members of the House of Lords, and some high-ranking public servants.⁶⁵ Only the 1783 publication of Domesday Book was distributed to a wider range of institutions, so that it could be more easily used by antiquarian researchers, a difference which Riordan suggests is explained by the fact that Domesday Book itself, in contrast to the Parliamentary records or the Crown’s diplomatic papers, “was part of the public records, available to any citizen to inspect for a fee.”⁶⁶ Preservation con-

62 Hallam, “Nine Centuries,” p. 28. 63 Riordan, Materials for History?, p. 62. 64 Riordan, Materials for History?, p. 62. 65 Riordan, Materials for History?, p. 63 (many thanks to Michael Riordan for a discussion on this topic); see also Ketelaar, “Muniments and monuments,” p. 351. 66 Riordan, Materials for History?, p. 63.

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cerns may have motivated this particular project. As previously noted, Domesday Book was frequently used in property disputes, and record-keepers were concerned to prevent deterioration of the original. Antiquarians also made their own records editions in the eighteenth and nineteenth centuries, and these were used to fulfil purposes including “supporting polemical theses.”⁶⁷

67 Riordan, Materials for History?, p. 67.

6 Attempts at reforming government records before 1640 It would be anachronistic to invoke the modern archive and modern record-keeping practices as the standard against which pre-modern attempts should be measured. However, English pre-modern governments themselves were aware that these archival conditions were suboptimal, and periodically tried to address them. Throughout the centuries there were official movements for reform of the Tower archive and other repositories, as well as the State Paper Office. An overall pattern of anxiety followed by inertia can be detected. Fussner describes a “general policy […] of orders and lamentations tempered by neglect,” while Hall bitterly summarises a government syndrome of giving orders, then procrastinating (despite “various destructive fires”), so that ultimately “the Records are still found in festering heaps in the same position.”¹ Thomas, by contrast, is far too sanguine when he claims that “The greatest importance appears to have been attached to the Records by the Sovereigns and Parliament, and from the earliest times down to a very late period they were under their special protection and direction.”² Nevertheless, these intermittent attempts at records reform are interesting for what they reveal of the government’s attitude to records and records access.

Edwards I, II, and III and the records A first attempt at establishing organised records storage occurred in the reign of Edward I, when this otherwise notably warlike monarch set up “a Repository for Records, and collected them.”³ In this scheme, “the Wardrobe in the Tower of London” was specified as the dedicated repository for Chancery records, and an Adam de Osgodeby was appointed in October 1295 as Keeper of the Chancery Rolls in the King’s Wardrobe, in a manner that confirmed the custom surrounding the appointments of previous keepers.⁴ The office of Keeper of the Chancery Rolls (later known as the Master of the Rolls) was itself not novel: the earliest historically verifiable appointment was John de Langeton in 1286.⁵ Osgodeby seems to have shared his duties with Robert de Cotingham, Clerk Comptroller of the Wardrobe: 1 2 3 4 5

Fussner, p. 74; Hall, p. 26. Thomas, Notes of Materials, Thomas, Notes of Materials, Thomas, Notes of Materials, Thomas, Notes of Materials,

p. 116. p. 116. p. 116. p. 116 – 117 fn. f, and p. 148.

https://doi.org/10.1515/9783110791464-008

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when Edward I issued a writ to have all Papal privileges of the Crown delivered to the Tower repository, Cotingham was to convey them from the Exchequer to the repository and they were to be kept there under the joint seals of Osgodeby and Cotingham (and their respective official successors).⁶ Up until this point Chancery records were kept in the complex surrounding the New Temple, now called Temple Church and part of the City of London’s legal precinct, but then the property of the religious military order the Knights Templar, who were providing record-keeping services to the Crown.⁷ Edward I’s interest in records was reflected in his seizure of Scottish records in the context of his wars with Scotland; these, which included what Thomas calls “the Rolls of Scotland,” were also deposited in the Tower.⁸ Edward had various Scottish records, including all of these Scottish Rolls, searched in a case concerning fealty and service thought to be owed to the Scottish Crown by the prior of the Benedictine monastery of Coldingham, Berwickshire.⁹ Far better known is the example of his successor Edward II, who, despite the absentmindedness concerning his own engagement contract on his flight to Wales, embarked upon what is usually portrayed as the first large-scale reform of recordkeeping. The order of the Knights Templar was dissolved in 1312 and in 1320 the King declared that the records “had not been disposed in such manner as they ought to have been for the public service.”¹⁰ It is unclear whether the Knights Templar had failed to keep good order, whether records removals brought by the order’s dissolution had led to problems, whether the royal clerks and officials had managed to create a high degree of chaos in the intervening eight years, or whether all these suppositions are true. In any event, the level of confusion and “consequent inaccessibility” of the records forced Edward II to have the records arranged and described for greater ease of administrative use.¹¹ He directed the Exchequer officials, including the Treasurer Walter Stapledon, Bishop of Exeter, “to employ proper persons to superintend, methodize, and digest all the Rolls, Books, and other writings then remaining in the Treasuries of the Exchequer […] and in the Tower of London,” so that the documents “might thenceforth be more properly

6 Thomas, Notes of Materials, p. 148. 7 Hallam, “Nine Centuries,” p. 20, 29; Thomas, Notes of Materials, p. 148; Nicholson and Hodgman, “History Explorer: The Knights Templar.” 8 Thomas, Notes of Materials, p. 148. 9 Thomas, Notes of Materials, p. 148; Clift, “A Brief History of Coldingham Priory.” 10 Hallam, “Nine Centuries,” p. 28; Thomas, Hand-Book, p. xvii. 11 Delsalle, Section 5.3; Hall, p. 23; Thomas, Notes of Materials, p. 116; Hallam, “Nine Centuries,” p. 28.

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preserved, for his and the public weal.”¹² This was followed by a large-scale calendaring project two years later of all the papal bulls, charters, and other documents in the Tower Wardrobe and the treasuries, employing additional, experienced clerks as necessary, to be paid for by the Crown’s own revenues.¹³ Here, the Crown’s legal interests in the British Isles and France were explicitly adverted to: the King wished the calendaring project to focus on “the king’s state and liberties in England, Ireland, Wales, Scotland, and Ponthieu.”¹⁴ Finally, in July 1322, the King appointed Thomas de Sibthorpe and Robert de Hoton “to search and arrange all his [the King’s] muniments in his castles of Pontefract, Tutbury, and Tunbridge,” as well as those that had recently come “into the custody of the Warden of the Tower of London” or were kept “in the House of the Friars Preachers in the City of London.”¹⁵ In the course of this project Royal officials retrieved four bags of Chancery records which had been misplaced in Swansea Castle.¹⁶ Thus Edward II’s attempt to gain control over his records was a thorough-going effort, reaching far beyond Westminster, and was much admired by later generations – usually in explicit contrast to subsequent torpour and inefficiency.¹⁷ The importance attached by the Crown to the keeping of the Chancery rolls can be seen from the formality with which Edward II appointed subsequent Masters of the Rolls. In 1323 (“with the assent of Robert de Baldock, archdeacon of Canterbury, his chancellor, and of others of his council”) Edward II appointed Richard de Ayremynne as the successor of William de Ayremynne in the post, the latter delivering to the new incumbent “the keys of the chests, wherein the rolls of chancery were kept.”¹⁸ In 1324 Edward once again “committed the custody of the rolls to Henry de Cliff, one of the clerks of chancery,” in a grand swearing-in “at the marble stone in the great hall at Westminster, to well and faithfully exercise the said custody,” with Richard de Ayremynne in turn giving de Cliff “the keys of the chests containing the rolls of chancery.”¹⁹ (So much high ceremonial might seem disproportionate to a modern mind, but it expresses Edward II’s intent to emphasise the prestige and responsibility of keeping government records. The frequent turnover

12 Thomas, Notes of Materials, p. 117; Delsalle, Section 5.3; Bayley, p. 229; Hallam, “Nine Centuries,” p. 28 – 29. 13 Bayley, p. 229. 14 Bayley, p. 229. 15 Thomas, Notes of Materials, p. 117; Bayley, p. 229 – 230. 16 Thomas, Hand-Book, p. xvii-xviii. This was before Edward II forgot his engagement contract in the same place. 17 See e. g. Bayley, p. 230; Hall, p. 23 – 24. 18 Bayley, p. 236 – 237. 19 Bayley, p. 237.

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in the 1320s may indicate Royal dissatisfaction with the post-holders’ performance.) Henry de Cliff continued in the post of Master of the Rolls until his death, succeeded by Michael de Wath, to whom de Cliff’s “executors were commanded to deliver all the rolls of chancery, together with the writs, inquisitions, records, and all other memoranda, and also the keys belonging to the said office.”²⁰ Hallam sees Edward II’s records reforms as part of a wider-ranging initiative to rationalise the work of the Exchequer, hindered as it was by chaos in the financial records, and thus motivated by “fiscal reasons.”²¹ By contrast, Hall and Mullett emphasise official legal concerns: the vindication of the Royal prerogative combined with royal officials’ wish to preserve precedents containing their own “privileges and perquisites,” while Mullett adds “the interest of private folk in preserving tangible evidences of their rights” as one of the motive forces behind this drive for better records preservation.²² He views this records management offensive, and the “conviction” that records should be “accessible,” as connected “to the plea for official proceedings in the common tongue, and to statutes against falsification, erasure, and embezzlement.”²³ Hall, by contrast, is rather more cautious in interpreting the King’s references to the public service and public weal, discerning “the germ of the later constitutional theory that the Records at large were preserved by the Crown for the benefit of the whole community,” but emphasising that the practical follow-through, the founding of a national public records office, did not come until the mid-nineteenth century.²⁴ Bayley notes that Edward II’s promising example was not followed for many generations of subsequent monarchs (apart from sporadic attempts at preservation, through laws prohibiting “erazure, falsification, and embezzlement”).²⁵ However, Hall appears to overlook an interesting interaction between the Commons and Edward III on the principle of public access to legal records.²⁶ In an entry from the Parliamentary Rolls for the year 1372, the Commons protest against recent refusals by court officials “to make search and exemplification in the court of our […] Lord the King.”²⁷ The wording suggests that it was an established principle that (judicial) “Records, and every thing in the King’s Court,

20 Bayley, p. 237. 21 Hallam, “Nine Centuries,” p. 28. 22 Hall, p. 23; Mullett, p. 196. 23 Mullett, p. 196. 24 Hall, p. 23. 25 Bayley, p. 230. 26 Bayley, p. 230, fn. e. 27 Thomas, Notes of Materials, p. 114. There is a brief reference to this statute in Gajda and Cavill, p. 42 – 43.

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ought to remain there for perpetual evidence and aid of all parties thereto, and of all those to whom in any manner they appertain, as occasion may require.”²⁸ The Commons therefore appeal to the King “to ordain by statute that search and exempflication may be made for all persons of any record which in any manner concern them, as well what makes against the King as against others.”²⁹ (Emphasis added.) Although the word ‘Court’ may appear ambiguous, the wording and Thomas’s translation make clear that judicial records, not those of the Royal court, are meant. The Commons’ insistence on the accessibility even of legal records prejudicial to the Crown’s interest is remarkable, as is Edward III’s succinct, agreeable formal response: “The King grants it.”³⁰ This move to put on a statutory footing a principle that was already accepted as a customary right shows great confidence on the part of the Commons to end the chicanery of officials who would deny the public access to legal records. This is the same statute to which Sir Edward Coke referred in Parliament on the 2nd of June 1628, claiming that it stated that “Any subject may as his right claim a copy of any records,” so that the Commons was entitled to receive a copy of Charles I’s response to the Petition of Right.³¹ Again, on the 9th of June 1628, Coke emphasised that a signed bill “is a record, and in 46 of E. 3 a statute was made that every man may resort to the records.”³² This 1372 exchange about access to legal records may even have had constitutional significance. It took place against the backdrop of Edward III’s Six Statutes, which had interpreted and concretised the judicial rights in Magna Carta.³³ There is certainly an obvious argument that access to the relevant records was essential to exercising the famous right to due process by ‘every man of whatever estate or condition’ laid down in the statute of 1354 and elaborated in that of 1368.³⁴ The ordered and ceremonial transference of the Master of the Rolls’ office continued under Edward III. In 1338 John de St. Paul was sworn in before the King, the Archbishop and Archdeacon of Canterbury, the Chancellor, the “keepers of the privy seal, and many others,” upon which Michael de Wath obeyed the King’s order to deliver to his successor “the rolls, writs, and memoranda of chancery, and the keys of the chests in which the same were preserved in the Tower of London, and also the key to another chest in which some rolls and writs of chancery

28 29 30 31 32 33 34

Thomas, Notes of Materials, p. 114. Thomas, Notes of Materials, p. 114. Thomas, Notes of Materials, p. 114. Commons Debates 1628, vol. IV, p. 55. Commons Debates 1628, vol. IV, p. 200. Library of Congress, “Due Process of Law.” Liberty of Subject, 1354; Observance of Due Process of Law, 1368.

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were deposited in the abbey of St. Mary at York.”³⁵ The fact that de Wath was still alive at the time of this new appointment suggests that Edward III was not satisfied with his fulfilment of the office. However, either his successor died soon after, or the King was displeased with de St. Paul’s performance too: in 1341 “the office of custos of the rolls of chancery was given to Thomas de Evesham, and after he had been sworn before the chancellor and others of the king’s council, William de Kildesby, keeper of the privy seal, delivered to him all the rolls, bundles, and memoranda in the Tower of London, namely, in eighteen bags, one leather sack, and one great hanaper of divers indentures, and the keys of the chests in the said Tower, in which divers other rolls, bundles, and memoranda were likewise preserved.”³⁶ The evidence that Edward III was rarely satisfied with his Masters of the Rolls further mounts with his 1341 order to de Evesham to surrender his office to “John de Thoresby, who, after he had been sworn before the king and several of the nobility and others at Woodstock, received the rolls in four leather bags, and twentyone canvas pockets, and a certain white hanaper, in which many indentures were inclosed; also bundles of writs, memoranda, and the keys of the chests ordered for the keeping of the same rolls in the Tower.”³⁷ The fact that Edward III appears to have dismissed servants from a post usually held for life may suggest an unusually keen interest in ensuring the quality of records management – though, of course, political machinations at Court cannot be excluded as an explanation for the rapid succession. The King also seems to have been actively involved in directing regular transfers by the Master of the Rolls. On the Chancery Close Rolls from 1338 and 1341, Thomas finds evidence “that the Masters of the Rolls were accustomed to deposit in the Tower the Rolls, Bundles, and Remembrances which had accumulated in their Dwelling House” and that “in the latter of those years it is expressly said that this was done by the King’s command.”³⁸ (Perhaps Edward was annoyed that he had to order the Master of the Rolls to carry out his duties, and this provoked one of the new appointments in 1341.) The appointments of Masters of the Rolls continued in the traditional fashion: when in 1382 a John de Waltham succeeded William de Burstall in the office, de Burstall delivered to him “all the rolls, memoranda, and other evidences, by indenture,” and the latter was so detailed that Bayley was able to determine that the 1821 arrangement of these particular records in the Tower was identical to that described in 1382 – though it is unclear whether this order had been resurrected

35 36 37 38

Bayley, p. 237. Bayley, p. 237– 238. Bayley, p. 238. Thomas, Notes of Materials, p. 117.

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or had simply been undisturbed for more than four centuries.³⁹ In any case, Bayley concludes that since there is no mention of the Tower records in the appointments of subsequent Masters of the Rolls, it is likely that soon after this point the Keeper of the Tower Records “became a separate office” in its own right, even though no names of the Tower keepers can be found before Henry VIII.⁴⁰ Beginning with that King’s reign, “the succession of keepers may be traced with a tolerable degree of certainty,” with a Ralph Pexall in charge of the Tower repository around 1529, while in 1538 the office was held by Richard Eton, later appointed joint Keeper for life together with William Singe.⁴¹ In the short reign of Edward VI the Keeper was an Edward Hales, “succeeded by Robert and Rowland Harris.”⁴²

Elizabeth I Despite the promising early developments in the reigns of the first three Edwards, the next significant attempts at reform captured by the historical record did not occur until the reign of Elizabeth I, or as Ayloffe puts it, “until after the complete establishment of the Reformation” (given Ayloffe’s Whiggish comments on the venality and incuriosity of English monks elsewhere in this records calendar, he probably intended this implied contrast between Protestantism and an interest in orderly record-keeping on the one hand, and Catholicism and chaos on the other).⁴³ Hallam states that during the Elizabethan age, it was finally recognised that archival disorder was obstructing government work.⁴⁴ While Mullett suggests that a bill for the better preservation of records was drafted as early as 1547 – an initiative more likely to have been associated with the new monarch Elizabeth than with Henry VIII, who died at the beginning of the year – he unfortunately does not cite his documentary evidence for this statement.⁴⁵ According to Bayley, Elizabeth developed an interest in the records early on, resulting in the appointment of Sir William Bowyer as Keeper of the Tower Records, succeeding Sir Henry Stafford, who complained bitterly that Bowyer had taken the office away from him.⁴⁶ An apparently related archival turf war, which eventually culminated

39 40 41 42 43 44 45 46

Bayley, p. 238. Bayley, p. 238. Bayley, p. 238. Bayley, p. 238. Ayloffe, p. i and xxvii. Hallam, “Arthur Agarde and Domesday Book,” p. 254. Mullett, p. 196. Bayley, p. 238 – 239; Alan Harding, “Stafford, Sir Henry.”

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in a Star Chamber court case under James I, was touched off by an incident in which an Exchequer Chamberlain called Edward Stafford raised the alarm to the Privy Council about the conditions of the Tower records, which, he claimed, “were in danger of loss and decay,” while “some had actually been stolen.”⁴⁷ When the Privy Council, in response, had a second lock installed on the Tower door and gave the key to Edward Stafford, Bowyer lured Stafford’s servant into the Tower repository under pretence of carrying out research for the Queen, and there Bowyer’s servant prevented Stafford’s lock from being replaced on the door, physically attacked Stafford’s servant and shoved “him down the stair,” and said that Stafford had no business in the Tower.⁴⁸ Wernham shows that a retaliatory manoeuvre on the part of Bowyer contributed to the Queen’s attempted reforms in the 1560s. Having defeated the Stafford padlock, Bowyer then lobbied to have “those Chancery records that were in the Master of the Rolls’ custody in the Rolls Chapel and Rolls House transferred to his own custody in the Tower” as well as Parliament records, all of which, he argued, had customarily been accessioned to his repository.⁴⁹ Contemporaneously, however, overlapping groups lobbied to draw their Queen’s attention to the state of the records: a group of lawyers surrounding James Dyer, Chief Justice of the Court of Common Pleas, petitioned her to renovate the record treasuries at Westminster and in general ensure the “better care of the records,” and the rising antiquarian movement, including Stowe and Camden, protested the “deplorable conditions” in the repositories.⁵⁰ At the same time, a newly prominent generation of keepers who were “scholars and archivists,” as typified by Arthur Agarde, raised the profile of what had previously been obscure, bureaucratic work.⁵¹ The overall result of these various movements was a royal enquiry “into parliamentary, chancery, and exchequer rolls,” which also “sought the recovery of dispersed charters.”⁵² In a warrant of 1567 to Sir William Cordell, Master of the Rolls, to carry out various reforms, Elizabeth censured “the danger or spoil as theretofore had happened to […] Records of her Chancery, which were accounted as a principal member of the Treasure belonging to herself, and to her Crown and Realm,” through their storage “in private houses and places,” during the reigns of Richard

47 Wernham, p. 16. 48 Wernham, p. 16 – 17. 49 Wernham, p. 17. Michael Riordan gave a presentation about this episode (inter alia) at ICHORA 2022. 50 Mullett, p. 196; Hall, p. 25; Bayley, p. 230. 51 Hallam, “Arthur Agarde and Domesday Book,” p. 254. 52 Mullett, p. 196.

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II and Henry VI.⁵³ (Unsurprisingly, Elizabeth here focuses away from the records chaos of her own father’s regime.) It is important to note the threefold interest in the Chancery records here identified by Elizabeth: her own personal interest, that of the Crown as an institution, and that of the kingdom – which implies a public interest in the records. In the warrant to Cordell the Queen “gave orders for rooms to be prepared in the Tower” for the new accessions, and these orders were carried out.⁵⁴ She ordered Cordell to deliver up to Bowyer at the Tower repository “all Parliament Rolls, Patent Rolls, Treasurer’s Rolls, &c. &c. of the several reigns of Ric. III. to Hen. VI,” including the records that were being stored in the Rolls Chapel, but Ayloffe noted in 1774 that all these records were still stored in the Rolls Chapel, and they seem to have remained there until the early nineteenth century, when their condition was found to be catastrophic.⁵⁵ So it appears that – despite Bowyer’s determined engagement – although a new repository was prepared, the records were not actually moved to it.⁵⁶ Given Elizabeth’s famously redoubtable personality and the “peremptory” tone of the orders, this is surprising, but it may be that like many other English rulers, she simply forgot to check up on the accessioning.⁵⁷ While Wernham suggests that this shows “the power of official inertia,” it may be that the Queen was influenced by Cordell’s protest that “by his patent of appointment he was the proper custodian of all Chancery records and that the Tower Keeper was merely his deputy,” claims which Bowyer counter-attacked “with a wealth of precedents.”⁵⁸ She did, however, succeed in enforcing improvements in the management of current records by issuing a letters patent in 1574 requiring the clerks of the Chancery “to inroll all recognizances, deeds, and other matters which should be inrolled in that court, and directed that such office should be executed by two deputy clerks approved of and sworn before the chancellor, or the lord keeper of the great seal for the time being, with power to him to examine and amend the abuses of such office; at the same time declaring, that if any failure should happen therein, the corporation should be responsible.”⁵⁹ (Clearly the all-important enrolment of documents was not being carried out reliably, and Elizabeth was attempting to build enough accountability into the system to remedy the problem.) The Queen also succeeded in halting the dispersal of monastic records begun under her father, while

53 54 55 56 57 58 59

Thomas, Notes of Materials, p. 117; Ayloffe, p. xxviii; Wernham, p. 18. Thomas, Hand-Book, p. xviii-xix; Ayloffe, p. xxvii-xxviii. Ayloffe, p. xix; Thomas, Hand-Book, p. xix. Hallam, “Arthur Agarde and Domesday Book,” p. 254 – 255. Ayloffe, p. xix. Wernham, p. 18. Ayloffe, p. xxix.

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Ayloffe states that she personally chose Agarde to lead the great sortation and calendaring project focussed on diplomatic records (discussed in the previous section) that he and his team eventually completed in the next reign.⁶⁰ Bayley includes a fascinating anecdote about Elizabeth’s interest in the records towards the end of her reign, shortly after the thwarted rebellion of her former beloved favourite the Earl of Essex in 1601.⁶¹ William Lambarde, the famous legal antiquary, county historian, and Keeper of the Tower records, had just finished his catalogue of them in his Pandect, which Bayley portrays as an excuse for the Queen – a connoisseur of male beauty – to enjoy a flirtatious meeting with an archives-keeper often described as “the handsome man of Kent.”⁶² (Upon her appointment of Lambarde to the position a few months before, she had conversed with him about records preservation with “great solicitude” and “at considerable length”).⁶³ Bayley’s gossipy account thus calls into question the genuineness of the Queen’s professed interest in this new finding aid. However, when her exchange with Lambarde is examined against the contemporary background of the recent Essex rebellion, it assumes a different colour entirely. Having given the finding aid to the Countess of Warwick to pass on to the Queen, Lambarde was summoned to deliver it in person to Elizabeth in her private apartment in East Greenwich on the 4th of August.⁶⁴ The Queen said to him cheerfully that she could not allow him to give her the book indirectly, “for if any subject of myne do mee a service, I will thankfully accept it from his owne hands.”⁶⁵ Throughout the exchange she paid Lambarde the great compliment (and perhaps consideration, given his age) of refusing to allow him to kneel to her.⁶⁶ Looking at the Pandect, she expressed an intent to “be a scholler in her [old] age, and thought it no scorne to learne during her life, being of the minde of that philosopher, who,

60 Fussner, p. 24; Ayloffe, p. xxix; Stenton, p. 273. 61 This episode is mentioned briefly in Hallam, “Arthur Agarde and Domesday Book,” p. 255, as well as by Gajda and Cavill, p. 39. 62 Bayley, p. 239. Doubt has been cast on the authenticity of this poignant and piquant episode, based on the fact that Lambarde’s record of this conversation survives only in a later copy, and not in the original – but as the foregoing chapters have made clear, the non-existence of an original manuscript is certainly no indication that a putative copy is a forgery. (See Scott-Warren, “Was Elizabeth I Richard II?”) Furthermore, the handwritten copy of this conversation discussed by ScottWarren came from the collection of Sir Edward Dering, encountered in a previous section, an enthusiastic antiquarian collector of authentic manuscripts and friend of Sir Robert Cotton. 63 Bayley, p. 239. 64 Vine, Miscellaneous Order, p. 194. 65 Bayley, p. 239. 66 Rowse, The England of Elizabeth, p. 56; Bayley, p. 240.

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in his last yeares began with the Greek alphabet.”⁶⁷ The long conversation that followed touched upon her feelings of betrayal in the aftermath of the Essex rebellion and indignation at having been indirectly compared by Essex to the tyrannical, deposed Richard II, in the former’s plan to revive Shakespeare’s exceedingly unflattering eponymous play as a nation-wide exercise in anti-Elizabethan propaganda.⁶⁸ “I am Richard II, know yee not that?” she exclaimed, on seeing the hated monarch’s name in the Pandect, and was soothed to be answered by Lambarde, “such a wicked immagination was determined and attempted by a most unkind gentleman, the most adorned creature that ever your majestie made.”⁶⁹ The Queen replied, “he that will forgett God will alsoe forgett his benefactor.”⁷⁰ She offered to have Lambarde shown a picture of Richard II which Lord Lumley had recently discovered hanging on the back of a basement door (a detail which suggests that the previous monarchs’ absentmindedness had extended beyond records) and wished her to add to the official portrait sequence.⁷¹ During Elizabeth’s thorough examination of the finding aid she put pointed questions to Lambarde, such as whether “Redisseisines were unlawful and forcible throwing of men out of their lawful possessions,” which led her into homilies about unfaithful subjects (“In those days force and arms did prevail; but now the wit of the fox is everywhere on foot so as hardly a faithful and virtuous man may be found”).⁷² Looking at the overview of all the records bundles which Lambarde had painstakingly processed, she said that she commended “the work, not only for the pains therin taken,” and added that she had never received anything in all her reign that had “brought […] soe great delectation unto her.”⁷³ The Queen was then called to prayer and the conversation was over.⁷⁴ She tucked the finding aid into her bosom and took her leave with the words “Farewell, good and honest Lambarde” – probably one last deliberate contrast with Essex.⁷⁵ (Lambarde had fortunately made more than one copy of the Pandect: one was retained in the Tower repository to assist researchers.)⁷⁶

67 68 69 70 71 72 73 74 75 76

Bayley, p. 239 – 240. Bayley, p. 240; Scott-Warren; Gajda and Cavill, p. 33. Bayley, p. 240. Bayley, p. 240; Scott-Warren. Rowse, p. 56; Bayley, p. 240. Rowse, p. 56; Bayley, p. 240. Bayley, p. 240; Rowse, p. 56. Rowse, p. 56. Rowse, p. 56; Bayley, p. 240. Vine, p. 194.

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Bayley appears to have missed the main point of this exchange altogether. Elizabeth may have been incidentally infatuated with Lambarde, but it is clear from Lambarde’s transcription that her major preoccupation, while looking at the Pandect, was in fact her betrayal by Essex, and that Lambarde was perfectly aware of this. It is a touching and somewhat pathetic vignette in which a labour of love by a loyal old retainer formed the focus of a comforting conversation for an aged, wounded, and now exceedingly mistrustful monarch. Lambarde died fifteen days after this interview, his demise said to have been caused by the “passion of joy” provoked by Elizabeth’s reception of his finding aid, and Elizabeth herself passed away two years after.⁷⁷

The Stuart Era By the beginning of the Stuart era the position of Keeper of the Tower records was associated with great prestige, “conferred on men of eminent worth and learning, and particularly distinguished for a profound acquaintance with the history and antiquities of their country” – a pattern probably solidified by the appointment of Lambarde.⁷⁸ Some other Keepers were also prominent legal historians. The profile of Henry Elsynge, appointed in 1604 jointly with Robert Bowyer, his uncle (and son of William Bowyer), again demonstrates the connection between archiveskeeping and constitutional historical research.⁷⁹ In Elsynge’s capacity as Keeper he investigated Parliamentary precedent and compiled a much-used standard reference work on the institution’s history using the ancient records.⁸⁰ In the constitutional and political turmoil, however, the Elsynges remained loyal to the Crown.⁸¹ Sir John Borough, who succeeded to the post in 1623, was trained as a common lawyer, noted as a great antiquary, and was intimately involved in the Crown vs. Parliament confrontations, providing Charles I with records on ancient precedents.⁸² Also a herald, he was appointed to the senior post of Garter King of Arms in 1634 (this rapid career progression shows, according to Broadway, the importance of patronage but also his “reputation as an authority on historical records”).⁸³ He followed Charles into battle in the Civil War, narrowly escaping

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Scott-Warren. Bayley, p. 235. Read Foster, “The Painful Labour of Mr Elsyng,” p. 6 – 7. Read Foster, “Elsyng,” p. 5; Bayley, p. 240 – 241. Read Foster, “Elsyng,” p. 6. Thompson Cooper, “Borough, John.” Broadway, p. 70.

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death when his field tent was shot through twice, and took minutes of discussions between the Parliamentary and Royalist sides.⁸⁴ Upon his death he was succeeded as Keeper by John Selden in 1643, a Parliamentary appointment: the career of this famous constitutional historian is examined in detail in Part Two. The rival Royalist appointment, according to Cooper, was William Ryley senior, whose Civil War exploits are also discussed later.⁸⁵ The prestige of the Keepership, despite the difficulties surrounding pay and working conditions, meant that the attention devoted to the filling of the position itself, and the political struggles surrounding the appointment, contrast with the usual official apathy concerning the housing and organisation of the records themselves. The struggle between the Master of the Rolls and the Tower Keeper which had begun in the previous century continued under James. In 1604 the Master of the Rolls claimed the right of appointing “the keeper of the records of chancery in the Tower,” a right which appears, at the time, to have been exercised by the monarch.⁸⁶ Thereupon James called a hearing of the Privy Council Lords to determine “unto whom the same did of right appertain, to the end that the keeping of the said records might be duly ordered, and possession thereof delivered to the party to which it should be found to belong.”⁸⁷ The case was viewed as so important that the Privy Council assembled an eminent group of legal experts to preside over it in Star Chamber, including the Lord Chief Justice of England and the Lord Chief Justice of the Common Pleas, and then heard “the arguments of the master of the rolls and Mr. Proby, the then keeper of the records, and their counsel,” apparently over several sessions.⁸⁸ In this context, the State Papers contain “Precedents […] to prove that it has been the custom to have a separate Keeper of the Records in the Tower, when nominally they have been in the hands of the Keeper of the Chancery Records.”⁸⁹ The judges looked for evidence of the tradition of this appointment in “divers ancient records that might best inform them therein,” and concluded that according to long-established precedent, “such of the said records as were of the chancery, or pertaining to the chancery, always had and should be under the charge of the master of the rolls for the time being, or of some person authorised by him.”⁹⁰ On the other hand, “the rest of the records in the Tower, as of the King’s Bench, Common Pleas, Exchequer,

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Thompson Cooper, “Borough, John.” Thompson Cooper, “Borough, John.” Bayley, p. 235. Bayley, p. 235. Bayley, p. 235; Wernham, p. 18. Cal. State Papers Dom. (1603 – 10), p. 144. Bayley, p. 235; Wernham, p. 18.

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and other courts,” should be kept by someone appointed by the Crown.⁹¹ That they insisted on Royal control over the custody of the more strictly judicial records is peculiar, given the fact that these did not belong to the arcana imperii but would have been viewed as public records. Though the Privy Council issued an order to transfer the Chancery records to the custody of the Master of the Rolls, their decision ultimately concluded that from a legal point of view, the custody of the Tower records could either be split between the Master’s officer and the King’s officer, or the King and the Master could appoint both keepers together and hold the right of appointment jointly, but in practical terms it was better for the security of the records (given that they were lodged in a single repository) to be under the care of only one person.⁹² Since the Crown was responsible for paying this individual, it followed that it had the right of nomination by warrant to the Master of the Rolls.⁹³ Bayley states that while the Master of the Rolls had the right to carry out the ceremony and administer the oath and other formalities surrounding the appointment, the King, in the end, decided upon the appointment itself.⁹⁴ Wernham, on the other hand, suggests that in fact the judgment allowed the Master of the Rolls to have Elsynge and Robert Bowyer, his own joint nominees, appointed as Tower record-keepers for life in the same year, effectively ousting “their rival Peter Proby.”⁹⁵ In the context of James’s quest for revenue, the financial record-keeping of the Exchequer came under scrutiny, apparently first in 1611: it is likely in this context that the State Papers contain “Arguments to prove that the accounts and records of receivers, bailiffs, &c., taken before the Auditors of the Exchequer, should be given up yearly to the two Treasurers of the Remembrancer Office and Clerk of the Pipe, and not preserved by the several Auditors.”⁹⁶ The inconvenience caused by decentralised storage was not the main issue, however. The Crown alleged abuses in the Exchequer as a whole, with particular reference to the auditors’ offices and the office of the Clerk of the Pipe, and saw these as enabled by bad record-keeping. The King complained to the Lord Treasurer that “Great abuses have crept into the Exchequer, by the accounts being kept in the hands of the auditors, and passed without due examination; by non-inrolment of records, &c., with other misdemeanors which require reformation.”⁹⁷ These issues had been present since – apparently –

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Bayley, p. 235 – 236. Bayley, p. 236. Bayley, p. 236. Bayley, p. 236. Wernham, p. 18; Cal. State Papers Dom. (1603 – 10), p. 178. Cal. State Papers Dom. (1611 – 18), p. 109. Cal. State Papers Dom. (1611 – 18), p. 371.

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at least the late 1550s, since James asked the Lord Treasurer “to call in all the accounts of receivers, &c. from the time of Queen Mary, and all rent rolls, court rolls, &c, and have them properly deposited.”⁹⁸ James’s request to have “a table of Exchequer offices” drawn up suggests that the Crown did not even have a satisfactory overview of the Exchequer’s physical parameters.⁹⁹ A programme of reform was instituted, carried out “by Sir Hen. Crooke and Ant. Rous.”¹⁰⁰ This background helps to contextualise the speech given by Lord Keeper Francis Bacon in 1617 when Sir John Denham was appointed the new Baron of the Exchequer: Denham’s duties were “to study the ancient records of the revenue; and to manage the revenue with most profit to the King, and least vexation to the subject” – while he was also to uphold James’s and Bacon’s absolutist interpretation of the Constitution by maintaining “the King’s prerogative, which is not separate from the law, but the principal part of it.”¹⁰¹ A new initiative in 1618 was motivated by the chaos caused by decentralised storage of records relating to bankruptcy. Edward Hawkins and Christopher Colby were appointed successively “Examiner and Registrar to the Commissioners for Bankruptcy in London, for life,” so as “to avoid the confusion caused by the papers and deeds being deposited in many different hands,” with an office “in Ivy Lane, St Paul’s.”¹⁰² The issues with finding records necessary for identifying burdens on real property were cited as the motive for establishing “an office of General Remembrancer of Matters of Record” in 1617, in order “to avoid the expense and trouble of searches in records for charges or incumbrances on property, which impede and endanger its conveyance”: the office would contain “indexes of all such records and judgments, with certain exceptions” along with entries of “abstracts of all transfers of property, wills, &c.”¹⁰³ This description suggests that it was envisioned to combine the functions of a land registry with some of those of a probate record office, and, incidentally, mirrors Puritan radical Hugh Peters’ desiderata in his later scheme for a proto-land registry. However, Wernham shows in his analysis of the patent itself that the officeholders – Henry Myles, John Friend, and John Ferrour – were also to have exclusive rights to keep indexes of cases in all “courts of record” as well as “all wills and testaments.”¹⁰⁴ The enormous potential conflict with the duties and powers of the existing public record-

98 Cal. State Papers Dom. (1611 – 18), p. 371; this incident is referenced briefly by Wernham, p. 20. 99 Cal. State Papers Dom. (1611 – 18), p. 371. 100 Cal. State Papers Dom. (1611 – 18), p. 486. 101 Cal. State Papers Dom. (1611 – 18), p. 463. 102 Cal. State Papers Dom. (1611 – 18), p. 539, 567. 103 Cal. State Papers Dom. (1611 – 18), p. 487. 104 Cal. State Papers Dom. (1611 – 18), p. 487; Wernham, p. 23.

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keepers is obvious. Wernham makes the cynical (but no doubt accurate) suggestion that this scheme, along with James’s other records-related projects, was probably an example of the sales of monopolies that so outraged Parliament in the 1620s, and was only secondarily motivated by concern for the records – although, as he also points out, the proliferation of these schemes “surely implies a growing official and public interest in having the records properly preserved and easily accessible.”¹⁰⁵ According to Thomas and Sullivan, this particular idea ultimately sank without trace.¹⁰⁶ Despite the similarity in terminology, this appears to have been a separate initiative to the design put forward by Sir Francis Bacon for a “general Record office” (probably a precursor to his grand vision of an all-encompassing State information centre in 1627’s New Atlantis), a scheme which, again, although authorised by the Crown in 1619 by letters patent, was never carried out.¹⁰⁷ The most important event of James’s reign from the point of view of archival history was the official founding of the State Paper Office, examined later in greater detail. While James occasionally issued Wilson with warrants to accession records for the SPO from various government officials, Mullett claims that Charles I went so far as to establish “a commission for searching after all records belonging to the Crown” (though, as is typical of Mullett, this is not backed up by a reference to a primary source).¹⁰⁸ In Charles’s early reign, probably in 1625, there was a petition from “the Justices of the Court of Common Pleas and Barons of the Exchequer” to prevent Charles from replacing their own able clerk and record officer with his own political appointment, and a putative attempt on the Crown’s part to reform chaotic record-keeping relating to the circuit Assize Sessions.¹⁰⁹ A draft of a letter “to be written to the Justices of Assize to make provision in their several circuits for the rolls and records of the Sessions being safely kept in some certain place” is accompanied by an extract from a statute of the reign of Edward III “concerning the transmission of records by Justices of Assize and gaol delivery to the Exchequer, there to be kept under the seal of the Treasurer and Chamberlains.”¹¹⁰ The overall assessment of the Elizabethan and Stuart eras is variable. Bayley suggests that Elizabeth’s reforms were “overturned” by the backsliding of subsequent record-keepers, but this does not do justice to the men who, despite James’s

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Wernham, p. 23 – 24. Sullivan, p. 27; Thomas, Hand-Book, p. 76. Hall, p. 25; Soll, The Information Master, p. 97. Mullett, p. 197. Cal. State Papers Dom. (1625 – 26), p. 198. Cal. State Papers Dom. (1625 – 26), p. 198.

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flightiness, doggedly persisted in organising and calendaring the records.¹¹¹ Fussner, in contrast, observes that not only the main Elizabethan but also the “early Stuart record keepers were men of uncommon learning and ability,” including Wilson, Arthur Agarde, and others.¹¹² While Bayley initially makes honourable exceptions for Selden and Prynne to his negative assessment of later seventeenth-century record-keepers, admitting that the records had “refallen into confusion” before their appointments, he later contradicts himself when he asserts that they (Selden and Prynne) seem to have done “little […] towards restoring them to order.”¹¹³ This is not a fair evaluation of Prynne’s Herculean efforts – which, if ultimately not particularly successful, were extraordinary – nor of Selden’s contributions as a records watchdog during a time of war and depredations.

Parliamentary orders concerning records The Commons showed concern for the keeping of its own papers as early as the 19th of May 1604: “Motion made for a special place to be built for the keeping of the Register and Records and Papers of the House, and for the Clerk and his servants to attend and write in, for the service of the House. The place proposed was directly under the Queen’s Council Chamber, within the Great Room called the Court of Requests.”¹¹⁴ Under the new Stuart regime, though it was itself very active in seeking out precedents for its own privileges, rights, and revenues, the access parameters of the English record-keeping system appear to have come under threat. On the 10th of May 1610 there were “Orders by the House of Commons […] touching the grievance of new impositions for the search of records.”¹¹⁵ This may suggest that the fee regime for access to the public records, discussed in Part Two, was not, in practice, as stable as it appears. An associated grievance was the high fees exacted for English-language copies of legal records. There was an ongoing attempt (from 1607 till at least 1610) to pass a law to prohibit “the wide and wasteful Writing of Copies in sundry Offices towards the Law” including “Courts of Record,” which, in the words of Sir John Park-

111 Bayley, p. 230 – 231. 112 Fussner, p. 76. 113 Bayley, p. 230 – 231. 114 Thomas, Notes of Materials, p. 141. Gajda and Cavill state that in general, in the early seventeenth century “A sense that parliament should curate its own archives was developing,” though the remark is made in the context of still-current records. Gajda and Cavill, p. 44. 115 Cal. State Papers Dom. (1603 – 10), p. 609.

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er in the House of Commons in March 1607, caused “infinite Charge and Mischief falling daily upon the subject.”¹¹⁶ It is worth noting the difference in phrasing in the State Papers, “the wide and wasteful writing of law proceedings, in Courts of Record,” which appears to suggest that the lack of succinctness of the court reports themselves, rather than the unnecessarily fulsome copies, was at issue.¹¹⁷ It cannot be excluded that the Crown, already annoyed by the ability of the common-law courts to encroach upon what it saw as its prerogative, hoped to reduce the length of common-law court reports on the principle that the less was written, the narrower the precedent. The Parliamentary initiative, however, was aimed squarely at unreasonable copying fees: Parker cited an instance in which one party had paid £60 “for One Copy,” and a particularly extreme example in which “in a Suit depending two Years,” Lord Lisle “paid for 6,000 Sheets of Paper.”¹¹⁸ Parker felt that the charges for copies of legal records were worse than the monopolies.¹¹⁹ Kate Peters states that during the Impositions debates of 1614, the Committee for Privileges attempted to recover the Parliamentary records and volumes that Thomas Wilson was keeping in the State Paper Office, and also voted to find “a fit place for keeping the Records of this House.”¹²⁰ These included not only the Commons Journals, but also all the other “Memorials and Records of the House.”¹²¹ Wilson may have been keeping the Parliamentary materials because, as previously mentioned in the beginning section on terminology, the Parliament rolls were (counterintuitively) technically part of the Crown’s private arcana imperii; however, this may be connected to the SPO’s more sinister function (uncovered later) as a centre for intelligence on perceived enemies of the Crown.¹²² The role of the House of Lords in attempting to rescue and preserve records has been little remarked. On the 27th of March 1621 the Lords attempted an overhaul of Parliamentary record-keeping in general: “Records of Parliament directed to

116 Cal. State Papers Dom. (1603 – 10), p. 589; House of Commons Journal Volume 1: 27th March 1607, p. 355 – 356; 12th May 1607, p. 372 – 373. 117 Cal. State Papers Dom. (1603 – 10), p. 589. 118 House of Commons Journal Volume 1: 27 March 1607, p. 355 – 356. 119 House of Commons Journal Volume 1: 27 March 1607, p. 355 – 356. 120 Kate Peters, p. 169. 121 Thomas, Notes of Materials, p. 141. 122 Riordan, “Materials for History?,” p. 63. Indeed, the Stuart State Papers contain much intelligence on proceedings in Parliament. For example, on the 18th of December 1621, a detailed report was submitted on the content of the Protestation, with particular attention to the emphasis on MPs’ immunity from Royal reprisals for exercising their right to free speech in Parliament; three days later it was noted that “The Upper House intended something similar, and ordered Mr. Selden to search the records about it.” Cal. State Papers Dom. (1619 – 23), p. 322 – 323, 324.

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be entered and enrolled. – Journal Book to be engrossed and kept in parchment, and the Acts, Judgments, and standing Orders of the House to be enrolled and kept in parchment.”¹²³ The latter requirement shows a determination to give the House’s official decisions the legal force of ‘record’ through enrolment, and may have been prompted by Coke’s contemporary emphasis on Parliament’s judicial role. Indeed, this order may have been inspired by the Lords’ order to Selden, also on the 27th of March, to copy and archive the precedents that he had collected in the course of recuperating the House’s judicial function, discussed in Part Two.

123 Thomas, Notes of Materials, p. 129.

7 The records in the Revolutionary era In recent years some pioneering work has appeared on records-making during the Revolutionary era, such as Ann Hughes’s investigation of the collection of parish accounts by the central government, a key preoccupation of the Interregnum.¹ The few secondary sources that exist on the keeping of records, apart from Kate Peters’ essay “‘Friction in the Archives’” and Kelsey’s brief sketch of official Commonwealth records measures, give a depressing picture of neglect and destruction.² Hall – whose obvious sympathies with the Parliamentary cause, even in 1908, highlight the enduringly partisan nature of English history-writing – bewails the failure of the Commonwealth’s Parliaments to better care for “the Records which had proved of such value in justifying their cause […] a deep reproach to the party of progress.”³ (These included Parliamentary records kept in the Tower repository.)⁴ Fussner, whose political outlook seems to have been more conservative than Hall’s (although he does suggest that the Commonwealth governments concentrated on maintenance rather than reform of the record-keeping system) focuses on the Radical preacher and Parliamentarian Hugh Peters, who proposed burning the Tower records “on the ground that they contained the evidence and precedents of past tyranny,” though “fortunately no one paid attention to this ignis fatuus.”⁵ The hostility towards the old order expressed in this proposal was summed up by William Prynne, himself originally a Puritan Radical and later a Restorer, as “the worst deed that sinner [Peters] had advocated except the execution of Charles I.”⁶ Fussner leaves out the background of Peters’ proposal altogether, portraying it as unintelligent ‘hot air’ rather than part of a full-fledged programme for reform. The actual context of Peters’ suggestion in 1651’s Good Work for A Good Magistrate, Or a Short Cut to Great Quiet, shows that this bonfire was meant to follow a rootand-branch overhaul of the English legal system: “This beeing don, it is verie advisable to burn all the old Records; yea, even those in the Tower, the Monuments of tyrannie.”⁷ Peters’ suggestion both harkens back to the burning of court records

1 Hughes, “‘The Accounts of the Kingdom’”. 2 Kelsey, Inventing a Republic, ps. 14 – 17; Thomas, A History of the State Paper Office, p. 8; David and Daniel Woolf, The Social Circulation of the Past, p. 157. 3 Hall, p. 26. 4 Hall, p. 26. 5 Fussner, p. 75. 6 Pocock, The Ancient Constitution and the Feudal Law, p. 159 fn. 2. 7 Hugh Peters, Good Work for a Good Magistrate. https://doi.org/10.1515/9783110791464-009

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during the English Peasants’ Revolt of 1381 and anticipates the destruction of records evidencing feudal bonds during the French Revolution, as described by Lokke and others.⁸ Peters’ reforms were not confined to the legal sphere, but included – among many other proposals – democratisation of higher education, with the establishment of excellent universities throughout the land to shatter the monopoly of Oxford and Cambridge and teach logic and languages to godly rural youths, and the demand that the ancient universities’ colleges should no longer be “wals to contein monastic drones.”⁹ (Peters’ evisceration of seventeenth-century academia has arresting similarities with the famous remark by Gerrard Winstanley, leader of the proto-socialist True Leveller or Digger movement, that “The secrets of the creation have been locked up under the traditional, parrot-like speaking from the universities and colleges.”)¹⁰ Peters’ specifically legal proposals envisioned the establishment of local registries throughout the country to provide the people with easy and definitive proof of title, in order to prevent fraud (since the entry in the registry would be the one authentic record), with the result that no-one would be “mistaken in premorgages.”¹¹ Kate Peters highlights the fact that the registers were also meant to keep track of testaments and wills.¹² In Good Work for a Good Magistrate, Hugh Peters was proposing nothing less than the replacement of a (to him) bad, old, corrupted central records system with an accurate, decentralised, and fair model. The old records would then have to be destroyed so that the precedents contained in them would no longer overrule these registries and shackle the new, freeborn Englishman. Indeed, the proponent of the doctrine of freeborn rights himself, the leader of the proto-democratic Levellers John Lilburne, had made similar demands. Frustrated by the expense and difficulty that he had encountered in 1646 in accessing the Tower records (at that point officially under Parliamentary control) that allowed him to prove that “the ‘rights of all the free men of London’ had been contravened in the recent municipal elections” (records which he then had translated and made available to the public), in 1649’s Foundations of Freedom he demanded “the setting up in every county or shire [of ] ‘a County Record for the perfect Registering of all Conveyances, Bills and Bonds,’ for the prevention of fraud, theft, and deceipt.”¹³ Winstanley advanced an explicitly class-based attack on the English

8 Ormrod, “The Peasants’ Revolt and the Government of England,” ps. 5 – 6; Lokke, “Archives and the French Revolution,” p. 27. 9 Hugh Peters. 10 Winstanley quoted in Coward, The Stuart Age: England, 1603 – 1714, p. 243. 11 Hugh Peters. This passage is also quoted and discussed in Kate Peters, p. 174. 12 Kate Peters, p. 174. 13 Kate Peters, p. 174.

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legal system and indeed the entire monarchical-clerical-legal Establishment, which, he felt, was there solely to suppress and exploit the lower orders.¹⁴ Legal reform was also a war aim of the New Model Army.¹⁵ They wanted legalese replaced by the English vernacular, trials and trial records in their own language (“not Latin or law French”), a system of “local courts” presided over by “laymen” and elected Justices of the Peace, together with “a codified law, no lawyers and no fees.”¹⁶ The call for a codified law makes greater sense of Peters’ incendiary proposition: the Quaker George Fox, who similarly advocated the jury principle in preference to judges, “repeated the Leveller […] demand that all the law should be ‘drawn up in a little short volume, and then all the rest burnt.’”¹⁷ Hugh Peters was thus not a lone arsonist, but in thoroughly respectable – if Radical – company. One court which came in for particular Radical opprobrium was the widelydetested prerogative Court of Star Chamber, attacked by Lilburne in The Christian Man’s Trial. ¹⁸ Critiques of Star Chamber were widespread, as Kate Peters notes in her description of one pamphlet attacking the court, called The Star-Chamber Epitomized and published in 1641, the year in which the court was “abolished by the Long Parliament.”¹⁹ It contains a dialogue between a journalist and the uncooperative court record-keeper ‘Christopher Cobweb,’ who takes pride in the inefficiency and pedantry of his work and extorts clients for copies of records.²⁰ The pamphlet has a serious legal point, however: according to ‘Cobweb,’ “the clerks deliberately deprived clients of the correct documentation so they would be in contempt of court, which ‘with their subtile devises for Fees and such like would have been twice the value of the offence.’”²¹ In this conspiracy, the clerks for both the claimant and the defendant later meet up “at the tavern to ‘divide the spoyle and laugh at the silly ignorance of the poore Clyant.’”²² The pamphlet shows an awareness of how the unjust concealment of legal records led to direct financial loss for individuals involved in court proceedings.²³ While Kate Peters acknowledges historians’ application of Foucault’s theory of archives to their early modern incarnation, it is also worth remarking that the English seventeenth-century critique of ar-

14 15 16 17 18 19 20 21 22 23

Hill, The World Turned Upside Down, p. 221 – 222. Hill, p. 221. Hill, p. 221. Hill, p. 223. Kate Peters, p. 153. Kate Peters, p. 153. Kate Peters, p. 153. Kate Peters, p. 153. Kate Peters, p. 153. Kate Peters, p. 153.

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chives as part of the apparatus of oppression itself anticipates (to some extent) the postmodern arguments of the later twentieth century.²⁴ Fussner’s discussion of Hugh Peters’ proposal to destroy the records seems designed to cast it as representative of a nihilistic Parliamentary attitude to records in general. This insinuation is comprehensively defeated by the following examination of F. S. Thomas’s primary source collection of orders and motions passed by both Houses concerning the care of records during the seventeenth century.²⁵ (Orders and motions relating to records research in the context of the seventeenthcentury constitutional debates are examined separately in Part Two.) Indeed, the amount of attention given by Parliament to records issues during such turbulent times is remarkable, and this records-mindedness emerged several times in the debates surrounding the constitutional points contained in the Petition of Right (as discussed later). While Kate Peters and Kelsey briefly discuss a few of the official measures which are the focus of this section, there has so far been no attempt at an exhaustive discussion of them. In the Revolutionary era proper Parliament asserted its claim to its own records, and Parliamentary records activism came into its own. (Kate Peters comments on Parliament’s increasing awareness of its “political autonomy and […] the authority of its records.”)²⁶ The Short and Long Parliaments of the 1640s were extremely engaged with the subject of Parliament’s records, with regular meetings and reports of the Committee for Safe-Keeping of the Records.²⁷ This heightened awareness of Parliamentary records was tied, in Kate Peters’ view, to Sir Edward Coke’s constitutional argument of 1621 “that parliament was itself a court of record” and indeed “at the apex of the common law,” superior even to the Privy Council prerogative courts.²⁸ One of the very first acts of the Long Parliament was the appointment of a committee on the 7th of November 1640 “to peruse the state of the Journals and Records of the House, and to consider of some certain place for the constant keeping of the Records of the House.”²⁹ The repeated attempts to find suitable storage for the records suggest either that the effort had been, at least up until this point, unsuccessful, or that the spaces hitherto found had overflowed quickly. In December 1641 there was a motion against the Clerk of the Commons “for suffering the Journals or Papers committed to his trust to be taken by Members of the House.

24 25 26 27 28 29

Kate Peters, p. 154. Thomas, Notes of Materials, ps. 129 – 144. Kate Peters, p. 169. Kate Peters, p. 169. Kate Peters, p. 169. Thomas, Notes of Materials, p. 141; also discussed in part by Kate Peters, p. 169.

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The Clerk directed not to suffer any Journal or Record to be taken from the table, or out of his custody.”³⁰ During the wars (1642 – 1651) there was a recurrent threat of the removal of court records by Royalist interests. On the 27th of May 1642, in the run-up to the Civil War, the Lords directed “all keepers of Records not to remove any Records from Westminster to York.”³¹ Thomas fills in the background to this order. The Commons had warned the Lords of the King’s “resolution […] to remove the Term [a reference to one of the periods of the English legal year in which magistrates traditionally sat – in this case probably Trinity term, since Easter term would have been almost over] to York.”³² This background shows that the Lords were, unsurprisingly, using the term ‘record’ in its legal meaning and that specifically court records were in jeopardy. The order displays co-ordination between Commons and Lords on what both Houses clearly perceived as a serious threat, and suggests that they felt that the order would have more weight if issued by the Lords. Concern for provincial records was shown on the 11th of July, with a joint Lords-Commons appointment of a new Clerk of Assize, the official in charge of the records of the circuit courts, since the old Clerk of Assize responsible for “divers counties” had died.³³ They added that “the Records, &c” were “of great concernment in regard to the lives and estates of his Majesty’s subjects.”³⁴ A Commons order of the 13th of January 1643 stipulates “that the officers of the several Courts do make stay of the Records, and not to remove them to Oxford; and the officers not to go to Oxford,” and again on the 1st of June 1643 “that the Register of the Prerogative Court do not suffer or permit any of the Records belonging to that Court to be removed to Oxford.”³⁵ The Commons remained alert to the threat posed to the prerogative court records, with another order on the 2nd of September 1643 “for the Clerks and others of the Prerogative Office to deliver the keys to Mr. Linche, for the safety of the Records there.”³⁶ In a traditional understanding of the English Constitution, even more than the Commons’ bold assertion of sovereignty over records pertaining to Parliament, this would have been a clear overreach. However, it is obvious that seizing the records of prerogative courts and offices was consistent with the Long Parliament’s campaign against the prerogative

30 Thomas, 31 Thomas, 32 Thomas, 33 Thomas, 34 Thomas, 35 Thomas, p. 172 – 173. 36 Thomas,

Notes of Materials, p. 141; also discussed in part by Kate Peters, p. 169. Notes of Materials, p. 129; also cited by Kate Peters, p. 172. Notes of Materials, p. 129. Notes of Materials, p. 141. Notes of Materials, p. 141. Notes of Materials, p. 141. The first of these measures is discussed by Kate Peters, Notes of Materials, p. 141.

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courts and, more generally, with its claim to examine and criticise the Crown’s use of its prerogative powers. The Commons order on the 26th of January 1643 “that the Writings, Papers, Books, and Records belonging to the office of the Clerk Comptroller be inventoried and safe kept at Warwick Castle, or in the Town of Warwick, whither they are now brought” can be explained by the fact that Sir Robert Greville, Earl of Warwick, was a key commander of the Parliamentary forces in the early stages of the wars.³⁷ The term ‘Clerk Comptroller’ is ambiguous – it was either a then out-ofdate name for the position of Comptroller of the Navy, or a reference to an important position in the King’s Household.³⁸ If the latter was meant in this order, this was another instance in which the Commons seized records normally seen as the property of the monarch (now, of course, the enemy). The Commons’ assumption that the records would be safe in Warwick Castle is curious, as the castle had been besieged by Royalist forces in 1642.³⁹ The Commons further occupied themselves with records outside of London, ordering records seizures as part of their sequestrations of political opponents. On the 26th of January 1643, they ordered “that the Mayor of Guildford do seize upon the Charters and Records in the hands of the Town Clerk, being sent for as a delinquent.”⁴⁰ Power politics and the impulse to intimidate opponents explain why the Commons went out of its way to have these municipal records secured: Surrey (like the South-East generally) was on the Parliamentary side during the war.⁴¹ A further intervention concerning provincial records, in connection with the prosecution of the war, occurred on the 25th of December 1643, when the Commons ordered the writing of a “letter of thanks […] to Colonel Hutchinson for his fidelity to the Parliament, and directing that the Records in Nottingham be safely kept.”⁴² This is clearly a reference to Hutchinson’s beleaguered position, beginning in June 1643, as the Parliamentarian commander of a castle and town in a region with powerful Royalist interests (including his own cousin) who attempted, unsuccessfully, to corrupt him.⁴³ A well-known Commons order came on the 27th of October 1643, when the Commons sequestered the position of “Clerk and Keeper of the Tower Records […] into the hands of Mr. John Selden, a Member of the House of Commons. The

37 38 39 40 41 42 43

Hunneyball, “Greville, Robert.” Thrush, “The Navy Under Charles I, 1625 – 1640,” p. 68. Author unknown, “Civil War Activity, Warwick Castle.” Thomas, Notes of Materials, p. 141. Plant, “Civil War in the South-East, 1642.” Thomas, Notes of Materials, p. 141. Firth, “Hutchinson, John.”

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above Ordinance carried up to the House of Lords.”⁴⁴ Kate Peters implies that in this way Parliament claimed the custody of the Tower records, and places this within the context of the wider phenomenon of Parliamentary seizure of manuscripts (apparently a mixture of public and private) belonging to their opponents, or ‘delinquents,’ through the process of sequestration.⁴⁵ The actual wording of the Order emphasises Selden’s standing as an MP, and thus makes clear the political dimensions of this appointment. Furthermore, Thomas notes that on the 31st of October the Lords sent the Commons their agreement to this appointment, upon which it took effect – which shows its perceived importance.⁴⁶ However, there was considerable institutional continuity in that “Mr. Collet and Mr. Ryley” were to continue as records clerks in the Tower.⁴⁷ (It is not clear whether Parliament was aware at this point of William Ryley senior’s activism in the Royalist cause – however, according to William Ryley junior, Ryley senior was indeed arrested for this activity in the same year, 1643.)⁴⁸ In addition, Kate Peters notes that Parliament had become aware of the need to administer the records sequestered from private ownership, since if these records were sold or otherwise dispersed, the public interest, both present and future, would suffer.⁴⁹ She describes their solution, in November 1643: “An Ordinance for the Preservation and Keeping Together for Publique Use, such Books, Evidences, Records and Writings Sequestered or Taken by Distress or Otherwise, as Are Fit to Be Preserved,” which commanded that these seized records should be delivered to a Parliamentary committee including Selden as well as the antiquary Sir Simonds D’Ewes, who were supposed to inventory them and preserve them for public access.⁵⁰ On the 13th of November 1643, the Lords issued an order that was clearly prompted by wartime conditions: “Order for preserving Records and Evidences from plundering.”⁵¹ The reference to ‘Evidences’ suggests care to include documents outside the narrow English legal understanding of ‘records.’ A detailed order issued by the Lords and Commons together on the 18th of November 1643 was to prevent “Records, Evidences, Accounts, Writings, Libraries, &c., taken in dis-

44 Thomas, Notes of Materials, p. 141; Haivry, John Selden and the Western Political Tradition, p. 94; Kate Peters, p. 171. 45 Kate Peters, p. 171. 46 Thomas, Notes of Materials, p. 149. 47 Thomas, Notes of Materials, p. 149; Kate Peters, p. 171. 48 SP 45/21 f 157 r. 49 Kate Peters, p. 171. 50 Kate Peters, p. 171. 51 Thomas, Notes of Materials, p. 129.

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tress, from being sold by Committees for Sequestrations or Distresses, but to be delivered up to a Committee of [the] House of Commons, to be inventoried and placed in safe custody.”⁵² This is an even wider definition of threatened documents than that of the previous order, and it highlights the devastation that the war was inflicting on private manuscript collections. This prohibition on unauthorised sale of records was hammered home by another Commons order on the 13th of February 1644: “that no Books, Records, Writings, or Manuscripts shall be sold without the perusal, viewing, and directions of the Committee appointed for that purpose, according to the Ordinance of the 18th of November last.”⁵³ The repetition of the order suggests that the government was failing to gain control of the problem. More targeted orders beginning in the following year suggest that the records chaos was increasing. On the 4th of February 1645 the Lords ordered the Garter King of Arms “to inspect the Records, &c., at Windsor, to examine what are wanting, and what are left to be delivered to their charge.”⁵⁴ On the 25th of April 1646 there was a Lords order to remove “the Records of the Court of Requests,” but this was “not to be taken into consideration without a day’s warning.”⁵⁵ The meaning of the second part of the order is unclear. Given the previous Commons order of the 13th of September 1645 to remove the Requests records from storage above the Lords’ building and thereby free up space for Parliament’s own records (an order which had clearly been ineffective), and the Commons’ observation that the Requests records were still in the custody of the court’s registrar, it appears that the Lords were attempting to remove the records against the will of the latter; perhaps they wished to pay him the courtesy of a day’s notice.⁵⁶ The seizure of records by Parliament was, according to Kate Peters, rationalised and made systematic by the 1646 legislation governing “the sale of the Bishops Lands,” which contained specific public access rights and definite obligations on the registrar (Henry Elsynge, the Commons’ Clerk and son of the Tower Keeper of the same name) to arrange, preserve, and catalogue the records connected to these lands, with the duty to provide the subject with copies of whatever records might be “brought into the Register Office.”⁵⁷ This legislation’s pendant in the Parliamentary journals, from the 9th of November 1646, contains more detailed instructions to the registrar “to methodize, &c. all Charters, Evidences, and Writings belonging to the late Archbishops and Bishops, and all Books of Survey, &c. to be

52 53 54 55 56 57

Thomas, Notes of Materials, Thomas, Notes of Materials, Thomas, Notes of Materials, Thomas, Notes of Materials, Thomas, Notes of Materials, Kate Peters, p. 171.

p. 129. p. 142. p. 129. p. 129. p. 142.

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delivered to his care, and to catalogue them,” again emphasising the right of the subject to copies of any of these records.⁵⁸ Kate Peters argues that “the legal right of public access to records, and the specifically parliamentary custody of a wide range of private estate and ecclesiastical records, were new, specific to the politics of the civil war and republic.”⁵⁹ The incident of 1372 in which the Commons required the King to confirm in legislation subjects’ customary right of access to legal records ‘appertaining’ to themselves in any way, as well as previous official articulations of the common weal or the public good in the record-keeping context (antedating what Peters portrays as a novel Parliamentary discourse on the subject), suggest that the first part of this statement is too sweeping.⁶⁰ However, the Revolutionary measures certainly represent a quantum leap forward for access rights. In contrast to subjects’ previously accepted right to access legal records concerning their own interests, here no restriction appears to be placed upon access: any subject may see any record “brought into the Register Office.” As will later be shown, this principle even appears to have been extended to the State Paper Office’s holdings. On the 21st and 22nd of September 1647 there was yet another Lords order aimed at rescuing “sequestered evidences and Records.”⁶¹ These were “to be delivered into the hands of the Register for the sale of Bishops’ Lands, and to be delivered out by him, from time to time, as he shall receive orders from either or both Houses of Parliament, or from the Commissioners of Sequestration, or from the Committees sitting at Goldsmiths’ Hall.”⁶² This was obviously connected to the legislation of 1646 in which the Register for the sale of Bishops’ Lands was to be responsible for processing the records connected with those estates and making them publicly available. Though the wording of the new order is so general that it cannot be determined whether the records of the Bishops’ Lands themselves were included in it, it appears likely that the accessioning was not working as had been hoped, so that the Lords felt that they had to issue this new order. Interestingly, in this order (in contrast to the legislation) there is no mention of public access to sequestered records, and the institutional partners who are to be allowed to borrow the records are listed in a short and clearly exclusive list. It is not clear whether the Lords had simply forgotten the previously articulated principle of public access to “whatever” should come into the office, or whether they were contemplating a differentiated access system, with public use of the records connected 58 59 60 61 62

Thomas, Notes of Materials, p. 142. Kate Peters, p. 171. Kate Peters, p. 171. Thomas, Notes of Materials, p. 129. Thomas, Notes of Materials, p. 129.

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to the Bishops’ Lands but narrower parameters for other sequestered documents. Given the general chaos, however, the former supposition is most likely. Not only were records seizures – as part of the sequestrations of ‘delinquents’ – during the Revolutionary era politically motivated, the setting up of the Bishops’ Lands records repository was itself also a highly political act. On the 24th of November 1646 the Commons ordered the use of “the house belonging to Sir Richard Gurney, late Lord Mayor, a delinquent, situate in the Old Jewry […] by the Trustees and Contractors in the late Ordinances for appointing the sale of the Bishops’ Lands, and for the safe keeping of the Records, &c. appointed to be laid up and kept by the Register in the said Ordinance.”⁶³ Gurney, who died the following year, was an ardent Royalist who had been stripped of mayoral office, impeached by the Commons, and imprisoned in the Tower.⁶⁴ The requisitioning of his house for the records of the Bishops’ Lands can therefore be seen as part of his persecution, making the project highly political in at least two respects: as an attack on the property of the Anglican Church, and on that of the former Royalist mayor of London. Parliament appears to have struggled to assert and maintain physical control of the records, which, as a result of various official seizures, had come into the hands of far too many official (and, probably, unofficial) records receivers. This is suggested by the scope and ambition of an order on the 2nd of November 1647 establishing a Commons Committee “to make a collection of all the Papers, Writings, Letters, or Commissions that concern the Public, that are in the hands of the Clerk of the Parliament, Secretaries of both kingdoms, Committees, or any Sequestrator or other person, and to reduce them into one place to be safely preserved, and to inventory and catalogue them, and to put them in such a way as they may be made use of by the Parliament as occasion shall require, and to bring a catalogue of them to the House to be preserved among the Records; and to have power to send for Parties, Papers, and Records.”⁶⁵ In particular, the implication that numerous sequestrators and unidentified ‘other persons’ were involved evokes something of the chaotic dispersal of records caused by the seizure of political opponents’ estates. The apparent decision to found a new archive overseen by Parliament, bypassing the established public records repositories altogether, expresses Parliament’s heightened archival awareness during this period, while it also testifies to the prestige and power conferred by records possession and the breakdown of normal records administration in wartime.

63 Thomas, Notes of Materials, p. 142. 64 Kingsford, “Gurney, Richard.” 65 Thomas, Notes of Materials, p. 142. Part of this passage is discussed by Kate Peters, p. 171.

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A very important joint order from the Lords and Commons on the 18th of January 1648 envisioned nothing less than the seizure of the manuscripts of Parliament’s most important political enemy: the King himself. His “Books, MSS., and Antiquities in the Library, Chair-house, and His Majesty’s Cabinet at Whitehall” were to be moved “to the Library at St James’s.”⁶⁶ This removal was to be supervised by the (moderate) Parliamentarians and legal antiquaries John Selden and Simonds D’Ewes, and the wording of the order suggests that it may even have been meant to encompass the arcana imperii, the contents of the State Paper Office.⁶⁷ Parliament was now claiming the right to dispose of manuscripts belonging to the King – an ominous foreshadowing of the escalation to come, and a symbolic reversal of the previous pattern of political intimidation in which the Crown seized the papers and archival collections of servants with whom it was displeased. It appears that the Commons were ultimately successful in their earlier attempt (in 1643) to prevent the removal of the records of the Prerogative Court, as suggested by a Lords order of the 1st of June 1648 to give a “Mr. Noel […] the custody of the Records and Writings at Lambeth House concerning the Prerogative Court, or other matters which concern the Prerogative Court or Star Chamber, or High Commission Court.”⁶⁸ The payment of the records clerks in the Tower repository was an issue in this period. On the 17th of August 1648 the Lords ordered “an advance of money for the present subsistence of Wm. Ryley, Clerk of the Records in the Tower, to be paid out of such delinquents’ estates as he shall discover to the Committee at Haberdashers’ Hall.”⁶⁹ The unattractive (and, given the political persecution of Ryley himself discussed in Part Two, perhaps retributive) expedient of forcing a Tower record-keeper to become a predatory scavenger for his income on what may have been perceived to be ‘his’ own side, in addition to his normal work, did not prevail for very long. In 1651, proper funding was ordered by the Council of State under Cromwell, to be examined later. However, like the various seizure orders previously examined, this order demonstrates the intimate connection between archives and the power politics of the era. This is the last order of the Lords relating to records that Thomas reproduces, prior to the House’s abolition in 1649. A Commons order of the 2nd of October 1648, of mysterious background, suggests a surprising willingness on the part of the Commons to examine the legality of their own records sequestrations. It is addressed to the Indemnity Committee,

66 67 68 69

Thomas, Thomas, Thomas, Thomas,

Notes Notes Notes Notes

of of of of

Materials, Materials, Materials, Materials,

p. 129. p. 129. p. 129 – 130. p. 130.

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which was set up to review the lawfulness of Royalist estate seizures and, although staffed by radical MPs, was also governed by the legalistic mind-set prevalent in a Parliament dominated by jurists, and inclined to uphold Royalists’ and Catholics’ legitimate claims on their sequestered property.⁷⁰ In this particular order, the Committee of Indemnity is “to examine and consider the business touching the Deeds, Evidences, and Writings taken out of the house of Ulkington during this war, if taken away by force, to be restored to the possession of those from whom taken.”⁷¹ (Emphasis added.) The wording appears to imply that in the perspective of the Commons, if records sequestrations were achieved by violence, they were legally invalid. With Pride’s Purge and the subsequent abolition of the House of Lords in March 1649, the Rump (a greatly reduced Commons) soon turned their attention to finding an appropriate combined repository for the records of both houses.⁷² On the 19th of March, they held the first and second reading of “An Act touching the Acts, Records, &c., of the late House of Peers; and annexing the house in the possession of John Brown, and enjoyed by him as Clerk of the late House of Peers, to the Clerk of Parliament. Committed to a Committee to consider of a fit and convenient place for keeping and securing the Records of both Houses.”⁷³ It is astonishing that this Act was promulgated so soon after a near-apocalyptic constitutional upheaval in the shape of the Regicide and the dissolution of the Upper House, and this haste suggests that record-keeping had a high priority for the radical new government. The Rump also took measures to try to master the chaotic situation created by the dissolution of courts and the temporary redirection of now-homeless court records into Parliamentary storage. On the 28th of January 1650 it ordered “that the Records which lie in the room over the House of Parliament be removed to the room where the Records of the Court of Wards now are; and the Committee empowered to remove the Records of the Court of Wards.”⁷⁴ (Though it is not clear, there seem to have been at least two different rooms used for records storage above Parliament – certainly the Commons’ previous reference to the records of the Court of Requests involves ‘rooms’ in the plural.) The most interesting episode in this period concerns the Regicide records, a highly complex and mysterious business. William Cobbett relates that on the 12th of December 1650, Mr Say “reported the records” of the King’s trial, and then Henry Scobell (the Commons Clerk) read aloud “the Act for Trial of the 70 71 72 73 74

Shedd, “Legalism over Revolution,” p. 1094, 1100. Thomas, Notes of Materials, p. 142. UK Parliament, “Pride’s Purge, ‘the Rump’ and regicide.” Thomas, Notes of Materials, p. 142. Thomas, Notes of Materials, p. 142.

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King; the Precept for the Trial; the Charge against the King […] and the Sentence against him.”⁷⁵ Then Parliament endorsed the entire affair, by resolving “That the Persons intrusted in this great Service, of the Trial of the late King, have discharged the Trust in them reposed, with great Courage and Fidelity […] that the Parliament is well satisfied in this Account of the Particulars, and Proceedings thereupon, and do approve thereof; and order that the same be recorded, to remain among the Records of Parliament, for the transmitting the Memory thereof to Posterity.”⁷⁶ (This is probably the grisliest instance of the Commons’ repeated impulses to self-archive their activities in the constitutional struggle, examined in Part Two.) Secondly, they ordered “all the said Proceeding [to] be engross’d, and recorded among the Parliament-Rolls.”⁷⁷ (The engrossment, a transcription in a large and legible hand, was the final official version of a legal document.)⁷⁸ The status of Parliament as the highest court in the land is evoked by Parliament’s third resolution, that the Lords Commissioner of the Great Seal issue “a Certiorari” to Scobell “to transmit the said Proceedings into the Chancery, to be there kept of Record; and that the same be transcribed, and sent by Mittimus to the Courts of the Upper Bench, Common Pleas, and public Exchequer; and also to the Custos Rotulorum in the respective Counties of this Commonwealth, to be recorded in each of them.”⁷⁹ The time delay of this elaborate piece of record-making and authentication is puzzling, as Cobbett notes: “why this bloody Business should be now again brought upon the Carpet, at near two Years Distance, is a Secret.”⁸⁰ He proposes that it was an indirect piece of war propaganda to intimidate the future Charles II, now attempting to make good his claim on the English throne through a military alliance with the Scots (motivated by the Scots’ revulsion at the Regicide, to which they had not agreed), with whom England was now at war.⁸¹ Indeed, at the time of this official re-telling of the Regicide, Cromwell had recently won some decisive victories in Scotland.⁸² Cobbett suggests that this incident “was by way of Defiance to the Scots; and to let their King know, that if he miscarried in his Enterprize now on Foot, he should be sure to share the like Fate with his Father.”⁸³

75 76 77 78 79 80 81 82 83

Cobbett, The Parliamentary or Constitutional History of England, Vol. 19, p. 446 – 447. Cobbett, p. 447. Cobbett, p. 447. Author unknown, “engross.” Cobbett, p. 447; Kate Peters, p. 169 – 170. Cobbett, p. 447. Ohlmeyer, “English Civil Wars.” Ohlmeyer. Cobbett, p. 447.

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The incident, particularly the fulsome praise of the individuals involved in the Regicide, suggests a certain English defensiveness provoked by the Scottish attitude to Charles I’s execution, and an attempt to retroactively legitimise it via the formal niceties of English legal record-making procedures. The time delay between the trial and the official engrossment and enrolment of the records, which traditionally had to be done in the same legal term for them to be valid and legally binding (the later discussion of the Crown’s attempted forgery of court records in The Five Knights’ Case highlights Parliament’s keen awareness of these requirements) is nevertheless very strange. It raises the possibility that the Rump Parliament was not actually convinced itself – at the time of the proceedings against Charles – that its tribunal to try the sovereign, an unprecedented innovation, was a legitimate court. The question of legitimacy had numerous facets, of which two are especially important: the fact that Parliament’s traditional status as England’s highest court had been associated with the House of Lords, which the Rump had abolished; and the exclusion of more moderate Commons members in Pride’s Purge, which probably provoked further unease as to the Rump’s claim to be Parliament.⁸⁴ This analysis would support the influential thesis advanced by Kelsey, that the Rump viewed the ‘trial’ instead as a “public negotiation” with Charles – essentially a piece of political theatre – but that it took on an unexpected and horrifying momentum of its own.⁸⁵ This disaster, Kelsey suggests, hinged on the very issue of the Rump tribunal’s legitimacy as a court, which Charles refused to recognise, since this would have meant an implied recognition of the Rump’s sovereignty and his own demotion to a figurehead.⁸⁶ This refusal brought an escalation unintended by Parliament itself. (Indeed, in the context of this extremely unorthodox tribunal and its claim to legitimacy, insufficient attention has been paid to MPs’ commonlaw educations and their extremely precise respect for the rule of law and precedent in the foregoing conflicts with Charles. The unprecedented charge of treason against the King, which had no adequate legal basis, must have uncomfortably reminded at least some of them of Parliament’s vigorous defence of those previously imprisoned by Charles for unspecified prerogative “reasons of state.”) Thus an examination of the wider background suggests that nothing less than the legitimacy of the Regicide itself was involved in this ceremonial record-making. The extreme attention devoted by the Rump, long after the fact, to observing the formalities of creating and sending these records according to the hallowed practices of the Eng-

84 UK Parliament, “High Court of Parliament.” 85 Kelsey cited in Holmes, “The Trial and Execution of Charles I,” p. 290 – 291. 86 Kelsey cited in Holmes, p. 291.

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lish legal system might even suggest a bad conscience and a subconscious attempt at compensation. On the 14th of March 1651 the Rump issued an order to transfer “the Records of the late Court of Wards […] to the Court of Exchequer, and Humphrey Salwey directed to take them into his custody, as well such as are already in the said Court as those in the hands of Hugh Audley, Clerk of the said late Court.”⁸⁷ (This raises the possibility that Audley was keeping some of the Court of Wards records in his private dwelling house.) However, these orders were not complied with; at least this is the impression created by a much later order from the 31st of October 1656 by the Second Protectorate Parliament, which required the removal of records “from the room over the Parliament House in order to repair the room, &c.; and the house called the King’s Fish House, to be prepared for laying up the said Records there.”⁸⁸ Given that the records later found perishing in Fish House were those of the Court of Wards (as described in the previous chapter on legal records), it appears that the Court of Wards records never were moved to the Court of Exchequer. This raises the question of how many of the Commons’ other record-keeping orders went unenforced in practice. With regard to Parliament’s own records, it seems impossible to unravel what ultimately became of the various plans to give them a permanent repository. On the 26th of January 1657 the Second Protectorate Parliament ordered Henry Scobell to “deliver the Journal Books, Records, Acts, Ordinances, and Writings belonging to the House to Mr. Smith, to be disposed of in the room over the House of Parliament; but resolved that the boarded house within the Court of Requests, and the room thereto adjoining towards the Inner Court of Wards, be the place for laying up and keeping the Journal Books, Records, Acts, Ordinances, and Writings belonging to the Parliament House.”⁸⁹ The wording is unclear, but it seems that the room above Parliament House was meant only as temporary accommodation for the Parliamentary records, and that they were to find a permanent repository in buildings previously associated with the defunct or disused courts. A final glimpse of the chaos affecting legal records concerning real property during the Revolutionary era is afforded by an order of the 14th of April 1659, instructing a Committee of Parliament “to consider how to remove and where to place in safety the Conveyances, Records, and other Writings now remaining at Worcester House.”⁹⁰ While no background is provided, it is very probable that these records were connected with sequestered estates. 87 88 89 90

Thomas, Thomas, Thomas, Thomas,

Notes Notes Notes Notes

of of of of

Materials, Materials, Materials, Materials,

p. 142. p. 142. p. 142 – 143. p. 143.

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The Council of State, Oliver Cromwell, and the records The following section examines interventions by Cromwell’s executive Council of State, appointed in 1649 after the Regicide and the abolition of the Lords, which soon showed its own activist interest in the records situation. As the Council was chaired by Cromwell, its activities in this regard provide a good indicator of his own attitudes to the subject. In contrast to the orders of the Lords and Commons, the Council’s dictates concerning records and archives have been largely neglected in the secondary sources (with a passing reference in Kelsey).⁹¹ On the 6th of August 1651 the Council of State notes the “Usefulness of the Office of Records in the Tower, not only to particular Men, but, in general, also to [the] Commonwealth.”⁹² The Republic’s legal reforms had brought the Tower repository into economic distress, since its staff had previously supplemented their income by doubling up as record-keepers in the Court of Wards, now abolished: “by reason of putting down the Court of Wards, the profitable Part of that Office is taken away, so as those that attend the Office have no means of Subsistence; and so those Records, of so much Concernment to the Publick, are in Danger to be rendered useless, or lost, or otherwise disordered.”⁹³ Therefore the Council asks the Parliament to raise a salary for the Tower repository of £200 a year, as well as accommodating the employees in the house adjoining the office.⁹⁴ The Council then suggests that “the Officers instructed be required to cause a Calendar to be made of all the said Records, to be given in to the Parliament, to be kept by such as the Parliament shall appoint, that may be a Check or Control upon the said Records, to prevent the Loss or Embezilment of any of them.”⁹⁵ However, the Rump’s resolutions passed in response focus solely on William Ryley, not the clerks in general: that “The […] Clerk shall, from henceforth, take only Two Shillings and Six-pence for every Search, in lieu of the Ten Shillings formerly taken; That the said Two hundred Pounds per annum shall commence from the Twenty-fourth of June last […] That the said Clerk be required forthwith to make a perfect Calendar of all the Records in the Tower, and return the same to the Clerk of the Parliament, to be kept amongst the Records of the Parliament.”⁹⁶ At the same time, the Rump ordered that the keepership of the Records pass from Selden (noting that the office had been sequestered by Parliament into his hands

91 92 93 94 95 96

Kelsey, Inventing a Republic, p. 16. Journal of the House of Commons, Vol. 6, Journal of the House of Commons, Vol. 6, Journal of the House of Commons, Vol. 6, Journal of the House of Commons, Vol. 6, Journal of the House of Commons, Vol. 6,

p. 617– 618. Also discussed in Kelsey, p. 16. p. 617– 618. p. 617– 618. p. 617– 618. p. 617– 618; Kelsey, Inventing a Republic, p. 16.

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on the 27th of October 1643) to the Master of the Rolls “for the time being,” with “Mr. Ryley to be Clerk under the Master of the Rolls, to look to the Records there; and the house adjoining to the said office, called Bowyer’s House, to be appointed as a dwelling to the said office, as formerly it hath been used.”⁹⁷ (Kelsey notes that the Speaker of the Rump Parliament was also the Master of the Rolls – this fact, together with his provisory appointment as Keeper of the Tower records, underlines the key political importance of archives to the Commonwealth.)⁹⁸ If Selden’s services were indeed dispensed with, this is hardly surprising: he was one of the moderate MPs who had been excluded by Pride’s Purge, as discussed later. (However, this order conflicts with Bayley’s statement that Selden remained the Keeper until his death in 1654.)⁹⁹ This passage is remarkable for a number of reasons. First, it recognises the public usefulness of the records to the whole Commonwealth, underscoring the idea of a legitimate public interest in the records. It also stipulates an adequate staffing budget of £200 p.a. so as to overcome the financial difficulties caused by the disappearance of the Court of Wards. This funding measure was important for access, allowing the high use fees to be reduced to a more affordable level (the former ten shillings charge for a simple records search was equivalent to £50 in today’s money, and copying and exemplification fees were additional). Finally, the measure attempts to establish physical and intellectual control over the records, by mandating a comprehensive finding aid to be preserved in Parliament itself. This would not only allow easier and more effective research – by both Parliament and the public – but also establish Parliamentary oversight, enabling the Parliamentarians to identify and police records thefts. (Indeed, the revival of the house next to the repository as accommodation for staff would also have contributed to the records’ security.) More insight into the Cromwellian records regime is provided by a letters patent under the Great Seal of the 23rd of November 1655 in which Cromwell – now Lord Protector – appoints Scipio le Squier (more usually spelled ‘Squyer’) Deputy Chamberlain of the Exchequer, a post which traditionally involved record-keeping duties in addition to accountancy.¹⁰⁰ (It is not made explicit that le Squier’s work is to encompass the Tower repository and oversight of archives as well as current records, the usual responsibilities of Exchequer Deputy Chamberlains, but this is strongly indicated by the mention of Domesday Book in the fees schedule.) Le Squier was an ‘old hand,’ having rendered “extraordinary service […] in sorting order97 Journal of the House of Commons, Vol. 6, p. 617– 618; Thomas, Notes of Materials, p. 142. 98 Kelsey, p. 16. 99 Bayley, p. 250. 100 Ramsay, “Le Squyer, Scipio.”

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ing and digesting his Majestie’s records […] forreign and domesticall” in the same position under Charles I.¹⁰¹ An antiquary in his own right, he is buried near Arthur Agarde in Westminster Abbey, near the former records repository in the Chapter House.¹⁰² Broadway notes that he kept track of the sometimes private whereabouts of dispersed monastic chartularies with lists, which demonstrates that “the keepers of the public records could acquire information about records in the possession of provincial gentlemen or other archives and act as conduits for that information.”¹⁰³ Cromwell is rather vague on the precise details of records management: le Squier is to “keep the records writings and other things in our Treasury and to doe all other things as one of the Under Chamberlaines of the Receipt of our Exchequer heretofore did or of right ought to have done.”¹⁰⁴ By contrast, the financial aspect of this appointment is defined with greater certainty. Le Squier is to carry out the office himself or employ deputies to assist him, but, in addition to his annual “stipend or salary of fifty pounds,” Cromwell makes le Squier’s holding of the office conditional upon his charging only “such moderate fees wages rewards and allowances […] as wee with the advice and consent of our councell should by our letters patent or order lymitt and appoint.”¹⁰⁵ Le Squier’s stipend is to be paid backdated to the 24th of June 1654, and the schedule of approved fees to which Cromwell refers is appended.¹⁰⁶ It includes fees for different uses of various types of records, showing a keen official awareness of the legal and financial matters concerning which records are most frequently required from the Exchequer offices. These comprise the more expected – “wine licences,” “sale of woods” – and the surprising, such as “the farme of sea coales” and “old and new draperies.”¹⁰⁷ Significantly, Cromwell takes care to name specific fees for searching, copying, and exemplifying Domesday Book, distinguishing in each use case between the fee relating to Domesday and “ye other Records.”¹⁰⁸ This suggests that, even in the Revolutionary era, in which Domesday’s importance might be expected to wane given the prevalent political doctrine of the Norman Yoke, it still retained its pre-eminent status above all other records.

101 102 103 104 105 106 107 108

Palgrave, Antient Kalendars, Vol. 3, p. 451 – 452. Author unknown, “Scipio le Squire.” Broadway, p. 69. Reprinted by Palgrave in Antient Kalendars, Vol. 3, p. 452 – 453. Antient Kalendars, Vol. 3, p. 452 – 453. Antient Kalendars, Vol. 3, p. 453 – 454. Antient Kalendars, Vol. 3, p. 455. Antient Kalendars, Vol. 3, p. 454 – 455.

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These various examples of records-related actions during the Interregnum may be what Fussner means when he observes, without citing any primary sources, that “it is clear that the Parliamentary leaders (and later the Cromwellian officials) were determined to preserve the libraries and the record offices of England from the avarice and irrationality of the ignorant.”¹⁰⁹ However, this concern did not extend to Scottish records. Here Cromwell was rather more cavalier: Thomas relates how “Cromwell, after he beat the Scots in their own country, seized the Public Registers, Records, and Rolls […] of Scotland, and sent them to the Tower, where they lay till the Restoration.”¹¹⁰ Charles II’s government later attempted to restore the records to Scotland by sea, but “the ship was wrecked and the Records lost.”¹¹¹ An article from The Scotsman, which dates this disaster to the 18th of December 1661, makes clear the scale of the loss: eighty-five hogshead barrels of records, including many from the reign of Robert the Bruce, in addition to fifteenth- and sixteenth-century Scottish parliamentary records.¹¹² While the records were being kept in London it proved “nearly impossible to resolve Scottish legal cases from afar,” which, The Scotsman suggests, was the motivation to repatriate them.¹¹³ The records loss itself “compounded vast gaps in the national archive left when Edward I took the country’s papers out of Scotland.”¹¹⁴ An order of the 16th of May 1659 suggests some official concern during the Revolutionary era on behalf of the Scottish records, and perhaps unofficial efforts to restore the records to Scotland.¹¹⁵ The Council of State was asked by Parliament to “examine what Records were brought into the Tower out of Scotland, and how many since taken thence, and by what authority, and where the same now remain, and for what cause they were so removed, and what yet remain in the Tower, and to report to Parliament.”¹¹⁶ The apparent unofficial removal of records suggests a total lack of physical security or control over the records in the Tower by the end of the Revolutionary era. Thus the Revolutionary governments showed an active interest in the records on many occasions, and thereby appear to have laid the groundwork for the official Commissions of Enquiry of the eighteenth century. Furthermore, records custody emerges as a surprisingly intense focus of political intrigue and concern

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Fussner, p. 67. Thomas, Notes of Materials, p. 149. Thomas, Notes of Materials, p. 149. The Scotsman, “On this day 1661: Thousands of Scotland’s historic records destroyed.” The Scotsman. The Scotsman. Thomas, Notes of Materials, p. 143. Thomas, Notes of Materials, p. 143.

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throughout the Revolutionary era. As will later be shown, this would also be true of the Restoration.

8 The Restoration and afterwards General Monck’s advance on London at the beginning of 1660 began the process of preparing Charles II’s return in May of that year.¹ From this point on, Parliamentary orders concerning the records must be interpreted within the context of political transition. A last major records-related controversy took place in the revived Rump Parliament: a scandal focussed on Henry Scobell, Clerk of the Commons, and an entry that he had made nearly seven years previously in the Parliamentary Journal. Scobell had entered for the 20th of April 1653 that Cromwell had ‘dissolved’ Parliament.² Samuel Pepys reported on the affair with great interest, writing that Scobell had defended himself vigorously: He answered that they were his own handwriting, and that he did it by virtue of his office, and the practice of his predecessor; and that the intent of the practice was to – let posterity know how such and such a Parliament was dissolved, whether by the command of the King, or by their own neglect, as the last House of Lords was; and that to this end, he had said and writ that it was dissolved by his Excellence the Lord G[eneral]; and that for the word dissolved, he never at the time did hear of any other term; and desired pardon if he would not dare to make a word himself when it was six years after, before they came themselves to call it an interruption; but they were so little satisfied with this answer, that they did chuse a committee to report to the House, whether this crime of Mr. Scobell’s did come within the act of indemnity or no.³

The affair did not end there, as Pepys explains on the 10th of February 1660: “In the morning I went to Mr. Swan, who took me to the Court of Wards, where I saw the three Lords Commissioners sitting upon some cause where Mr. Scobell was concerned, and my Lord Fountaine took him up very roughly about some things that he said.”⁴ While Pepys had by this point forgotten the accusation against Scobell in the bustle of his London life, Fountaine was clearly displeased with Scobell’s previous statements. (Pepys had not noticed that the Court of Wards had been abolished; the hearing had probably been set up in one of its former court rooms.) It appears that the end result of the trial was that Scobell was acquitted and the entry was officially expunged from the Journal.⁵

1 2 3 4 5

Johnston, “Charles II’s Restoration, May 1660.” Kelsey, p. 19. Pepys, “Monday 9th January 1559/1660.” Pepys, “Friday 10th February 1559/1660.” Kate Peters, p. 170; see Terry Foreman’s comment on Pepys’ Diary entry of 9th January 1660.

https://doi.org/10.1515/9783110791464-010

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The timing of the Rump’s accusation initially seems bizarre, nearly seven years after the fact. However, this new Rump was perceived as the revived version of that dismissed by Cromwell in 1653. From 1659 to early 1660 this new Rump Parliament was engaged in a struggle with the Army over the fundamental constitutional question of whether Cromwell had legitimately dissolved the first Rump.⁶ If he had, then the subsequent Parliaments between 1653 and 1659 were also legitimate and their legislation valid; if not, all the intervening legislation was null and void.⁷ Firth notes that the new Rump “were legitimists of the most pronounced type, and […] regarded themselves, not as a provisional government placed in power by the Army, but as the only lawful government of England.”⁸ On the Rump’s side, Marchamont Nedham had claimed on the 17th of August 1659 that Cromwell’s intervention could not be a dissolution, but “is rightly termed only an interruption of its [the Rump’s] sitting.”⁹ Nedham argued that according to the maxim Id solum possum quod jure possum, Cromwell could only act on the basis of a law, and he could only have dissolved Parliament based on either a “Law of the Nation” or a “Law of War.”¹⁰ No such law of the nation existed, and Cromwell could not invoke a law of war either “because his Military capacity was derived from the Parliament, they (who had the whole Right of war in themselves) having given him his Commission to Militate for them (that is to say, for the people represented by them), and so he could not properly or lawfully Militate or use a Right of war against them, who had no lawful power but what he derived from them.”¹¹ (This is, incidentally, a sophisticated, startlingly modern explanation of the doctrine of popular sovereignty as the only legitimate origin of a state’s military force.) Indeed, the Rump could even point to a statute passed to protect Parliament from just such an action, the 1641 “Act against the dissolution of the Long Parliament.”¹² Against this background, Parliament’s fury at discovering the mote in its own eye – in the form of Scobell’s Journal entry – and determination to portray it as a forgery to be expunged suddenly make sense. Furthermore, Scobell’s own reply, evidently made in reference to the constitutional theory of Nedham and others, seems unwisely provocative with its reference to the newly-fashionable habit of calling Cromwell’s action an ‘interruption.’

6 Firth and Rait, “Introduction to Acts and Ordinances of the Interregnum.” 7 Firth and Rait. 8 Firth and Rait. 9 Firth and Rait. 10 Nedham, quoted in Firth and Rait. 11 Nedham in Firth and Rait. 12 Firth and Rait.

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In the reaction to this affair, Scobell’s lifetime appointment as clerk of Parliament was rescinded.¹³ On the 25th of April 1660 he was ordered by the newly constituted House of Lords “to deliver all Acts, Records, and Journal Books, and all Paper and Writings what soever in his custody belonging to the Peers, to John Brown, Clerk of the Parliament, as well as the Stone Tower, wherein the Records were actually kept, and also the dwelling-house in which the said Stone Buildings stand.”¹⁴ This was followed by a Commons order of the 11th of May “that all Acts, Ordinances, and Journals, Records, Books, Papers, or Proceedings belonging to the House, or concerning the same, as well in the time it acted as a single house as before, now in the custody of Henry Scobell and T. St. Nicholas, or others, to be delivered to William Jessop, Clerk of the House of Commons, to be kept among the Records of the House.”¹⁵ The order concerning the papers of the House of Lords does not seem to have brought the desired effect in securing them. Scobell died in 1660, and although the precise date of his death is not known, it seems likely – given that his will was proved on the 19th of September – that the new Lords order of the 22nd of August “for the Clerk of Parliament to search amongst Mr. Scobell’s papers, and […] seize such papers and Records as properly belong to the House of Peers” was posthumous.¹⁶ The reactivity to Scobell was not an isolated incident in the fractious process of Restoration: Neufeld states that, as part of the political class’s instinct “to blot out or destroy the recent past,” there were various official destructions and alterations of “embarrassing or compromising records,” including in “the journal of the House of Commons for the months around the late king’s trial.”¹⁷ The longing for a return to the status quo ante bellum is also reflected in the historical field. Broadway notes that the Civil War conditions had made local antiquarian historical research and writing difficult (although not impossible) but that as soon as the war was over, there was a prompt resumption of collaboration between previous political and religious opponents.¹⁸ From the 1st-15th of May 1660 the Lords decided on “the petition of Walter Long and Lady Jermyn, making certain claims as to the Records of the Register Office of the Court of Chancery.”¹⁹ This complicated affair is explained in depth by Hart: with the Restoration, the House of Lords was braced to decide on numerous cases concerning “public office holders and university officials” who had been de-

13 14 15 16 17 18 19

Courtney, “Scobell, Henry.” Thomas, Notes of Materials, p. 130. Thomas, Notes of Materials, p. 143. Thomas, Notes of Materials, p. 130; Courtney. Neufeld, The Civil Wars after 1660, p. 4. Broadway, p. 48 – 50. Thomas, Notes of Materials, p. 130.

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prived of their offices in the previous twenty years.²⁰ Here again, the legitimacy of intervening governments was at stake, giving rise to practical problems: “The defendants […] claimed title by virtue of grants from Parliament itself in the 1640s, or from the Cromwellian Council of State in the 1650s, both of which had claimed to represent the sovereign political authority of the day,” and given the good faith and efficiency of many of the defendants, in individual cases it was seen as unfair to deprive them of these offices.²¹ Furthermore, at this delicate stage of transition prior to Charles II’s return, it would be dangerous to make wholesale denunciations of the previous governments.²² The Jermyn case revolved around a record-keeping office, that of Chief Register in the Court of Chancery, which, with its associated income, had been the property of Sir Thomas Jermyn, Charles I’s Vice Chamberlain.²³ He was declared a delinquent in 1643 and the office and its profits were sequestered by Parliament and bestowed on the MP Walter Long.²⁴ By a complicated chain of political events, Long then lost the office to rival interests in Parliament in 1645, regained it in 1647, but lost it again in 1654, when Cromwell himself granted it by patent to two other men.²⁵ Long’s attempts at legal action had been inconclusive, with a civil action followed by hearings before the second Protectorate Parliament and, now, the restored Long Parliament.²⁶ After two months no judgment had been reached in this new hearing, so Long seized “all of the records and papers of the office.”²⁷ Hart believes that he did this to secure “material evidence to his claim,” but, against the background of this book’s uncovering of records seizures as an instrument of power politics, another interpretation is possible.²⁸ Long, clearly at the end of his tether, had seized these records in an attempt to coerce Parliament: he was essentially holding them hostage in exchange for a favourable decision, and symbolically asserting his claim to be their rightful manager. This power move failed, as the Lords issued an “Order for the Records to be delivered to the sworn officers of the Court of Chancery, in whose hands they were formerly kept, until they were taken away by Walter Long.”²⁹ At this point the Lords had not

20 21 22 23 24 25 26 27 28 29

Hart, Justice upon Petition, p. 224. Hart, p. 225 – 226. Hart, p. 226. Hart, p. 226. Hart, p. 226. Hart, p. 226. Hart, p. 226. Hart, p. 226. Hart, p. 226. Thomas, Notes of Materials, p. 130.

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yet reached a decision on the ultimate issue.³⁰ Perhaps fearing that surrendering the records would weaken his claim on the office, Long refused to co-operate with this provisional order.³¹ After this, his claim was denied: the Lords may have wished to sanction his impertinence in seizing the records in order to put pressure on the government, a reversal of the usual dynamic. The last Cromwellian appointees were allowed to continue (as Deputy Registrars) in the Court of Chancery, but the office’s profits “were […] reserved for the benefit of Lady Jermyn and her children.”³² Though Charles II had issued an amnesty for the supporters of the Commonwealth, it did not extend to the commissioners of his father’s execution, thirteen of whom would eventually be hung, drawn, and quartered for high treason.³³ (Even so, Nenner views this as showing – for the times – “strategic restraint,” given that sixty-nine men had been involved in total.)³⁴ The new Parliament did not wait for Charles II’s return to start ordering records seizures targeted at prominent regicides. (These initiatives were separate from the efforts by the restored Crown itself to recover documents from regicides via the State Paper Office, as described in Part Three.) The Commons now disingenuously discovered that at least some of the Archbishop of Canterbury’s records were in the possession of the Radical Puritan preacher Hugh Peters, previously encountered advocating records bonfires. This suggests that the transfer of the Lambeth Palace Library to Cambridge, overseen by Selden and discussed in Part Two, was not complete. Peters, who had promoted Charles I’s execution (and was suspected of being the headsman’s masked assistant), was clearly a marked man, and was arrested on the 11th of May 1660.³⁵ The Commons order of the 16th-18th of May must therefore be interpreted in the context of retributive power politics, requiring “all the Books and Papers belonging to the late Archbishop of Canterbury, and now or lately in the hands of Mr. Hugh Peters, to be secured.”³⁶ Peters had, in fact, held Archbishop Laud’s famous manuscript collection since 1644.³⁷ In connection with the trial of the Archbishop for treason (motivated by vengeance for his persecution of Puritans such as William Prynne), Parliament had seized this manuscript collection and bestowed it upon Peters: a highly symbolic transfer of records from the hated advocate of Episcopa-

30 31 32 33 34 35 36 37

Hart, p. 226 – 227. Hart, p. 227. Hart, p. 227. Nenner, “Regicides.” Nenner. Firth, “Peters, Hugh.” Thomas, Notes of Materials, p. 143. Firth, “Peters, Hugh.”

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lianism to a New Model Army Puritan chaplain whose political star was then at its height.³⁸ In the same order of the 16th-18th of May, the Commons stipulated a records seizure targeting another perceived regicide, John Phelps: “all the Records, Books, &c belonging to the Public in the hands of John Phelps, to be secured by Mr. Prynne and Colonel Bowyer.”³⁹ Phelps’s contribution to the Regicide had been to keep the minutes of the proceedings against Charles I, as one of the tribunal’s two clerks.⁴⁰ (Indeed, his involvement throughout the Interregnum seems to have been confined to high-profile clerical appointments, through which he made enough money to buy part of Hampton Court.)⁴¹ Although recording the trial might seem merely a passive or neutral involvement, the Commons had voted Phelps’s arrest (together with that of the other court clerk, Broughton) on the 14th of May 1660.⁴² Perhaps the reasoning was that setting down the judgment allowed it to become a precedent for future murders of monarchs. On the 9th of June it appears to have been decided that Phelps (unlike Peters) was not among those destined to be executed for high treason, but for some lesser punishment.⁴³ Phelps became a clerk on the run and succeeded in evading capture, eventually turning up in Holland.⁴⁴ During the Interregnum he had been registrar of the Committee for Plundered Ministers, and somehow the specific records of this committee seem to have eluded these official attempts to seize his collections: in 1686 Sir Joseph Williamson noted that they were still in the possession of a man called Daling, Phelps’s clerical assistant.⁴⁵ In this Commons order to recover public records in Phelps’s hands, Royalist MP William Prynne, the key record-keeper of the Restoration, appears together with Sir John Bowyer, previously a military commander in the New Model Army who (like Prynne, excluded by Pride’s Purge) had also been elected to the new Convention Parliament.⁴⁶ Bowyer would be made a baronet by Charles II that September.⁴⁷ The Lords’ last major order concerning records before Charles II’s return came on the 22nd of May 1660, to inventory public records in the custody of John

38 39 40 41 42 43 44 45 46 47

Firth, “Peters, Hugh.” Thomas, Notes of Materials, p. 143. Firth, “Phelps, John.” Firth, “Phelps, John.” Firth, “Phelps, John.” Firth, “Phelps, John”; Firth, “Peters, Hugh.” Firth, “Phelps, John.” Firth, “Phelps, John”; Sainsbury, p. 252. Helms and Mimardière, “Bowyer, John.” Helms and Mimardière.

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Phelps.⁴⁸ This followed and supported the Commons order to seize the papers. It seems that Phelps held records related to the financial workings of government, perhaps generated by the ‘plundered ministers’ themselves. In this order, “the Clerk of both Houses of Parliament” must draw up an “inventory of all the Records, Books, Papers, Indentures, and Writings, in the keeping of John Phelps, belonging to the Public, and remaining in his house, and Edward Rich of Lincoln’s Inn to have the inspection of them, and continue of council therein as formerly, and the late Commissioners to give a speedy and perfect account to the said Edward Rich, to present to both Houses of Parliament, and of all monies, profits, rents, fines, disbursements, and salaries.”⁴⁹ It is interesting that this matter was considered so important that a Lincoln’s Inn attorney was officially engaged to analyse the records and report to both Houses on their contents. Clearly there was anxiety to put the financial side of the new administration on a sound legal footing. Charles II’s triumphant return on the 29th of May 1660, to public celebrations that lasted for days, prompted one record-keeper in the Court of King’s Bench to express his own joy at the event by beginning the Chief Justice’s Easter term plea roll with a spectacular illuminated portrait of the restored monarch.⁵⁰ Nevertheless, the Commons did not lose sight of their own constitutional interests in the general euphoria. Considering the long-running constitutional controversy over Charles I’s levying of tonnage and poundage (import and export fees on a range of goods) without Parliamentary consent, it is no surprise that on the 28th of July 1660 the Commons ordered “that the original of the Book of Rates for Tonnage and Poundage, and Rules annexed, be bound up and remain in the House of Commons; and that three Transcripts be made of the same, one to be transmitted to the House of Lords, one to the Exchequer, and a third to the Commissioners of Customs.”⁵¹ This meant that Charles II, if he should attempt similar unauthorised actions, would be completely encircled by accurate versions of the rules held by all other legally-interested parties. This measure is an example of pre-emptive record making, distribution, and keeping to stave off further royal abuses of the prerogative, reminiscent of similar actions by the Commons in the context of the Petition of Right controversy (discussed in Part Two). This order followed and reinforced the voting of tonnage and poundage to the Crown by Parliament on the 24th of June of that same year, which set definite import rates for various types of foreign wines (distinguished as to national origin and whether imported by Englishmen or ‘aliens,’ into London or some other 48 49 50 51

Thomas, Notes of Materials, p. 130. Thomas, Notes of Materials, p. 130. Johnston, “Charles II’s Restoration.” Thomas, Notes of Materials, p. 143.

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port) and provided for export subsidies on woollen cloth, but made very clear “That it shall and may be lawfull to all and every Your Subjects at his and their will and pleasure to convey and transport out of this Realme in Ships and other Vessells of any the Subjects of this Realme all and every kinde of Herrings and other Sea Fish to be taken on the Sea by any the Subjects aforesaid from or out of any Port or Harbour of this Realme to any place out of your Majesties Dominions without paying any Custome Subsidy or Poundage moneys for the same Herrings or other Fish soe carried or transported dureing your Majesties life, Any thing herein before contained to the contrary notwithstanding.”⁵² Most importantly, this statute emphasised that “because noe rates can be imposed upon Merchandize imported or exported by Subjects or Aliens but by co[m]mon consent in Parliament Bee it further Enacted and Declared by the Authoritie aforesaid that the rates intended by this present Act shall be the rates mentioned and expressed in one Booke of Rates […] Which said Booke of Rates composed and agreed on by Your Majesties said Commons and alsoe every Article rule and clause therin contained shall be and remaine dureing Your Majesties Life as effectuall to all intents and purposes as if the same were included perticularly in the Body of this present Act.”⁵³ This meant that the Book of Rates had the same legal weight as a statute itself, a point emphasised by its signing by Sir Harbottle Grimston, the Speaker of the House of Commons.⁵⁴ A Commons order of the 6th of August 1660 reveals a bizarre loss of physical control over Parliament’s own recently generated records.⁵⁵ Two Ayloffes, one of them called William, had broken into and seized control of the Treasury of the Public Office in Broad Street where the official surveys made of Church lands during the Interregnum (to enable their sale) were kept.⁵⁶ The two men seem to have violently thrown out the record officers, “sealing up the Doors, breaking open the Locks of several Rooms where Records are, and possessing themselves of the Key

52 “Charles II, 1660: A Subsidy granted to the King of Tonnage and Poundage and other summes of Money payable upon Merchandize Exported and Imported.” 53 “A Subsidy.” 54 “A Subsidy.” The Book of Rates’ exhaustive list of imports and exports offers a fascinating glimpse into the material world of the seventeenth century, with imports including “Aggetts small as a Beane,” “Cuttle Bones the thousand,” “Elephants Teeth,” “Pheasants” (mature from Midsummer to Christmas, pullets from Christmas to Midsummer) and even “Tinfoyle.” The exports list is noticeably shorter and contains more expected goods (“Beefe the barrell,” “Beere the ton,” and “woad”), with no impositions on most of the English finished garment trade (“Fustians of English making” and “Garments or wearing apparrell of all sorts” were to “goe out free”), although export duty was payable on worsted woollen garters. 55 Journal of the House of Commons: Volume 8: 6 August 1660, p. 111 – 112. 56 Journal of the House of Commons: Volume 8: 6 August 1660, p. 111 – 112.

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of the Door belonging to the Treasury, and daily ransacking amongst them, to the great prejudice of thousands of persons concerned therein, and by transferring and misplacing whereof a perfect account to his Majesty and to the House will be disabled.”⁵⁷ The Commons thus emphasise the harm to the legal interests of individual members of the public through this vandalism. The Ayloffes’ motivations in perpetrating this outrage and ransacking the records remain opaque, but it can be suspected that some sort of property dispute or even a planned property fraud lay behind it. A number of different William Ayloffes can be found, but only one seems to have been of an appropriate age, though otherwise an unlikely candidate: a pupil barrister at Lincoln’s Inn beginning in 1553, who later became a judge of the Court of Queen’s Bench.⁵⁸ In any event, the Commons ordered that the Ayloffes “do forthwith return back all Books, Writings, and Evidences, found by them in the publick Office relating to the Sale of Bishops, and Deans and Chapters Lands, in Broadstreet, with the Office itself, to the Hands and Custody of the Officers, who formerly had the same in Charge; and that the Serjeant at Arms attending this House do see the same done accordingly.”⁵⁹ Despite this threatened use of force, the Ayloffes do not seem to have complied satisfactorily. This is suggested by a later order of the 13th of May 1662, “That Mr. Michaell Mallett, and Mr. William Ayloffe, do deliver all such Surveys, and other Records and Writings, concerning the Archbishopricks, Bishopricks, and Deans and Chapters, which are in their Hands, unto the Most Reverend Father in God the Lord Archbishop of Canterbury.”⁶⁰ The Archbishop was to attend to the records’ preservation, and to distribute the records to the various bishops, deans, and chapters concerned, at his own discretion.⁶¹ The Commons’ voluntary transferral of Parliamentary surveys of church lands to the Church, along with the action against Peters, signalled that the religious radicalism of the Interregnum was officially over. Overall, after 1660 Parliamentary orders concerning the records become sparser and significantly less dramatic, generally concerned with the proper making and keeping of records. From the 20th of June to the 22nd of July 1661 the Lords directed that “the Rolls of Statute Staple” be made up properly as required by a

57 58 59 60 61

Journal of the House of Lee, “Ayloffe, William.” Journal of the House of Journal of the House of Journal of the House of

Commons: Volume 8: 6 August 1660, p. 111 – 112. Commons: Volume 8: 6 August 1660, p. 111 – 112. Commons: Volume 8: 13 May 1662, p. 427– 428. Commons: Volume 8: 13 May 1662, p. 427– 428.

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statute of Henry VIII, “which had been neglected from 1634 to 1640.”⁶² On the 24th of July 1661, a Commons order was made to recommend the surveyor-general “to provide a place for the Clerk of the House and the Books and Records of the House.”⁶³ This does not seem to have been successful, since a Commons order of the 17th of January 1674 ordered the renovation of the (by now obviously dilapidated) building which had housed the Court of Wards in order to transform it into “a fit condition for the safe keeping” of the Commons Journals and Records.⁶⁴ The whereabouts and accommodation of legal records continued to be vexatious, with an order of the 29th of April 1662 to a Commons Committee to examine “the rooms over the House of Commons, whether the Records of the King’s Bench and Common Pleas may with conveniency be brought back there, and to inquire where they were anciently kept.”⁶⁵

The records after the Restoration Given Hall’s pro-Cromwellian partisanship, it follows that he is “scarcely surprised […] to find that after the Restoration matters went from bad to worse” in the official government archives, despite Royalist William Prynne’s best efforts in the Tower “to cleanse and arrange the Records and to make their contents available for historical study.”⁶⁶ Similarly, Fussner suggests that the two centuries after the Civil War were marked by neglect.⁶⁷ Hall notes that, although antiquaries issued warnings as to the safety of the records, it was mainly through the advocacy of the manuscripts collector and politician Robert Harley that the first Parliamentary committee of enquiry on the records was appointed in 1703, the beginning of a long chain of such enquiries that would continue into the nineteenth century.⁶⁸ This Committee’s visit to the State Paper Office revealed it to be “in a state of great neglect,” and also determined that there had been little accessioning since 1670.⁶⁹

62 Thomas, Notes of Materials, p. 130. Simply put, a statute staple was an old form of security for debts, an instrument giving a creditor collateral rights to the property of the debtor. University of Nottingham, “Recognizance in the nature of a Statute Merchant / Staple.” 63 Thomas, Notes of Materials, p. 143. 64 Thomas, Notes of Materials, p. 143. 65 Thomas, Notes of Materials, p. 143. 66 Hall, p. 26. 67 Fussner, p. 75. 68 Hall, p. 26. 69 Thomas, A History of the State Paper Office, p. 8 – 9.

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However, the received picture of neglect and disorder may be an overly negative representation of the circumstances in the Tower repository. Bayley relates that following Prynne’s death in 1669, Sir Algernon May was given the office of Keeper of the Tower records with the same allowance as Prynne’s (£500 p. a.).⁷⁰ According to Bayley, although May “appears to have been a zealous and useful officer […] it should seem that his services were but coldly requited.”⁷¹ In particular, he met with no co-operation in his attempt to revive the ancient precedent of regularly accessioning “rolls and other records from the Rolls Chapel to the Tower,” which he viewed as necessary for their “safety and better preservation.”⁷² In 1676 he reported to the government that he had “repaired several hundred rolls and bundles of ancient records,” and complained of the lack of accommodation for himself, the derelict records presses, and the non-payment of his allowance – a problem which continued, so that in 1681 he informed a House of Lords committee that the Crown by now owed him £3,000.⁷³ There are contradictory reports concerning the facts of May’s career as Keeper. According to Bayley, “he continued in charge of the records till the year 1702,” at which point he was pensioned off by Queen Anne for £250 a year, the remaining £250 paid to William Petyt as his successor, with the whole £500 entailed on Petyt upon May’s death.⁷⁴ On the other hand, the History of Parliament suggests that May was replaced in 1686 by the Tory Robert Brady (a famous Royalist constitutional theorist who had attacked the notion of the Ancient Constitution) with an income of £300 per year, and that Brady continued in the post until the 1689 Glorious Revolution, which represented the triumph of the Liberal (Whig) interest.⁷⁵ At this point, Brady was “ordered to deliver up the Tower records to Petyt,” Inner Temple barrister, antiquary, and famous Whig constitutional theorist who had published against Brady and advocated for the Ancient Constitution in works such as 1680’s The Antient Right of the Commons of England Asserted. ⁷⁶

70 Bayley, p. 256. 71 Bayley, p. 256. 72 Bayley, p. 256. 73 Bayley, p. 256 – 257. 74 Bayley, p. 257. 75 Edwards and Jaggar, “Brady, Robert”; Naylor and Jaggar, “May, Sir Algernon.” The mystery may be partially resolved by Pocock’s note that Brady was “awarded the salary usually paid to the keeper of the records in the Tower.” (Pocock, p. 212). The wording suggests that he may have received the income without actually being officially Keeper – after all, the government had been failing to pay the salary to May. In The Ancient Constitution and the Feudal Law Pocock devotes an entire chapter to Brady’s constitutional thought, “The Brady Controversy,” p. 182 – 228. 76 Inner Temple Library, “William Petyt”; Bayley, p. 257.

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An Address of the House of Lords to the new King William of Orange in November 1689 asked for Petyt “to be employed to methodize the Records in the Tower with proper assistance, the records being in great disorder and confusion.”⁷⁷ Though William replied vaguely “that he would consider of it,” there survives in the internal papers of the State Paper Office a misfiled draft warrant from 1689 for the appointment of Petyt to “the Office of Clerke or Keeper” of the repository for life – which suggests that the King was confused as to the distinction between the two positions – containing observations of the necessity of boxing the rolls and records there “for the publick good of our subjects.”⁷⁸ The evidence for Petyt’s 1689 appointment to the specific role of Keeper is thus equivocal at best. Bayley notes that Petyt “did for many years employ his clerks in making extracts of such records and rolls lying in the office of which he was keeper, as might be of public use to be known and read in these times,” amounting to “a great number of volumes fairly written.”⁷⁹ (Emphasis added.) This selective approach, together with Petyt’s career as a constitutional controversialist, suggests strongly that Petyt essentially turned the Tower office into a factory for historical propaganda in the Whig interest. Bayley also informs us that Petyt was always of the greatest assistance to researchers of the Ancient Constitution.⁸⁰ Petyt’s activity (like that of Prynne) demonstrates that professional distance had yet to become an archival desideratum. Nevertheless, when the records repositories were officially investigated in 1704, the committee interviewed Petyt as Keeper and inspected the Tower repository, finding that “the records in the office” were “in good condition and carefully kept,” and that modern copies had been made of “the old calendars of most of the rolls.”⁸¹ The major problem was still the heaps of mouldering records in Caesar’s Chapel, which suggests that Prynne had ignored some of these, perhaps due to his specific focus on rescuing the Parliamentary Writs (discussed in Part Two). Petyt may not have been the most trustworthy custodian of the Tower records. When he died his personal manuscript collection, which he left to the public and which his executors gave to the Inner Temple on condition that it be freely accessible, suspiciously contained “items written by Elizabeth I, Edward VI and Lady

77 Thomas, Hand-Book, p. 418. 78 Thomas, Hand-Book, p. 418; SP 45/21, marked on the reverse 112 B. Edwards seems to believe that Petyt was installed as an employee – not as Keeper – to assist in this work in 1689 and only succeeded to the Keepership in 1702, but does not provide any primary sources. (Edwards, Libraries, p. 265.) 79 Bayley, p. 257. 80 Bayley, p. 257. 81 Sainsbury, p. 253.

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Jane Grey.”⁸² Of course, Petyt may have merely copied these papers (Edwards states vaguely that his collections were “partly derived” from the public records in the Tower) – but then again, he may not.⁸³

82 Inner Temple Library, “William Petyt”; Edwards, Libraries, p. 265. 83 Edwards, Libraries, p. 265.

9 An ironic counterpoint: Sir Robert Cotton’s ‘private library’ Private collectors such as Petyt were a very important feature of the English archival landscape. Ironically, the best-ordered, most accessible, and apparently best-used source of archival materials in the seventeenth century was the ‘private library’ of Sir Robert Cotton, far surpassing the official public records repository in the Tower of London.¹ The term ‘private library’ was a misnomer on two counts. The collection was not ‘private’ in its access ethos, and it appears to have been dominated by unique archival materials.² In fact, Tite and Sharpe both suggest that Cotton’s (and the collection’s) focus – based on his apparent cataloguing activity – was on “original material” and handwritten transcriptions, rather than the printed books that he did possess.³ The actual number of printed books in Cotton’s possession, and the extent to which they were perceived to be part of his collection, remain unclear: Toomer refers to “a large and choice collection of printed books, the details of which are largely obscure.”⁴ According to Kippis, writing at a later date after the collection had been neglected and partly dispersed, it “consists wholly of Manuscripts; many of which being in loose skins, small Tracts, or very thin Volumes, when they were purchased, Sir Robert caused several of them to be bound up in one Cover.”⁵ Tite observes that “It is […] for his superb collection of manuscripts, charters, rolls and coins that Cotton is primarily known.”⁶ The government records in Cotton’s collection included nearly one hundred bound “volumes of original state papers and exact transcripts” illustrating religious and political history from Henry VIII to James I.⁷ Of these, forty-three volumes were on “domestic and foreign affairs,” and fifty volumes of diplomatic papers bore on relations with the Hanseatic League, Portugal and Spain, Scandinavian nations, Holland, the Near East, Turkey, Poland, and Russia.⁸ This meant that the very documents essential to the Crown’s interactions with foreign powers were in the hands of a private gentleman. The conventionally secret nature

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Fussner, p. 62 and 88. Walsham, p. 15. Tite, “A Catalogue of Sir Robert Cotton’s Printed Books?”, p. 183 in Sir Robert Cotton as Collector. Toomer, p. 45. Kippis, p. 300, fn. I; Fussner, p. 36; Toomer, p. 45. Tite, “A Catalogue of Sir Robert Cotton’s Printed Books?”, p. 183. Fussner, p. 147. Fussner, p. 147.

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of such documents makes Cotton’s liberality with researchers even more startling, as is the continuance of free access (with interruptions, examined in Part Two) during the rest of the century and the collection’s presentation as a gift to the nation in 1702.⁹ Cotton, who was highly proficient “in the Saxon and Gothic languages,” began his aggressive collection programme at the age of eighteen, motivated by the contemporary obsession with exploring British history.¹⁰ He canvassed the entire country to collect “original documents of the Romans and Anglo-Saxons, of Normans and Plantagenets, of church and state,” and took advantage of a high degree of socio-economic flux amongst the aristocracy during the Elizabethan age to gain access to “the archives in the muniment rooms.”¹¹ Cotton’s awareness of the losses caused by the Henrician Dissolution of the Monasteries motivated him to scoop up many of the manuscripts in the temporary possession of – in Kippis’s words – “peasants, mechanics, and other persons ignorant of their importance.”¹² According to John Aubrey, Cotton’s enthusiasm for collecting manuscripts even extended to buying and tearing up a field that had belonged to the recently deceased, notorious occultist John Dee, in order to retrieve documents that the latter had buried in it.¹³ (Many of the “books” from dissolved monasteries had landed in Dee’s private collection, and Selden also obtained some “books and manuscripts” from it following Dee’s death.)¹⁴ Cotton used records agents to collect manuscripts for him on the Continent of Europe.¹⁵ He acquired papers – via a third party – belonging to the City of London Corporation and omitted to return them all upon the aldermen’s request, and thereby, Fussner suggests, did posterity a favour.¹⁶ The records management at the Guildhall was so beset by apathy, “inertia” and “possible corruption” that the records might not otherwise have survived; the aldermen had no control over their records and it was easy for curious antiquaries to illicitly copy or even appropriate these historically interesting materials.¹⁷ In 1622 the aldermen were still issuing peevish directives for the improvement of records security.¹⁸ 9 Fussner, p. 147. 10 Cappon, “Collectors and Keepers in the England of Elizabeth and James,” p. 150 – 151; Kippis, Biographia Britannica, Vol. 4, p. 298 and 302. 11 Cappon, p. 151. 12 Kippis, p. 305; Tite, The Panizzi Lectures, p. 99. 13 Aubrey, Brief Lives, Vol. 2, p. 311. 14 Toomer, p. 44. 15 Cappon, p. 151. 16 Fussner, p. 145 – 146; Cappon, p. 154; Sharpe, Sir Robert Cotton, p. 65. 17 Fussner, p. 145 – 146. 18 Fussner, p. 146.

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During the early seventeenth century, Cotton was able to swoop in after a number of high-profile deaths (Henry, Prince of Wales; Lord Lumley; Robert Cecil, Earl of Salisbury; and his own patron Howard, Earl of Northampton) and integrate certain volumes into his collection.¹⁹ This was despite Thomas Wilson’s best efforts to accession Cecil’s papers for the SPO.²⁰ Cotton was a skilled negotiator, obtaining manuscripts by exchange, while he also profited from a number of formal bequests.²¹ He may, on occasion, have crossed the line from determined to predatory. In the context of finagling manuscripts out of the aged collector Thomas Allen in Oxford, Richard James asked Cotton to send Allen a present of “green ginger” in the hope that this delicacy would not only cheer him but, more to the point, also “‘open some odd corner of antiquity.’”²² However, it is important to point out that Cotton was not alone in apparently employing devious means in the hunt for manuscripts: Toomer relates a couple of incidents in which John Selden used dishonest tactics to obtain the Chartulary of the diocese of Llandaff in Wales as well as substantial holdings formerly belonging to the Anglican Church, in the context of his supervision of the Lambeth Palace Library during the Revolutionary era (see later).²³ In 1622 Cotton bought what would come to be called Cotton House, part of the Palace of Westminster, which gave the Parliamentarians ideal proximity to his collection.²⁴ (A stair provided access to the Thames from Cotton’s garden, so that he could easily travel by boat to the Tower repositories.)²⁵ Cotton, who was already of genteel landholding stock, used his ever-growing collection of precious documents to obtain more social influence, which he in turn parlayed into an extraordinary level of “free access to official records.”²⁶ Cotton personally knew almost all the keepers of the Tower records and the State Paper Office – although Sir Thomas Wilson distrusted him greatly.²⁷ Wilson voiced the suspicion in 1615 that Cotton had exploited his friendship with Arthur Agarde, Exchequer record-keeper, to purloin government papers belonging to the public records; indeed, upon his death Agarde bequeathed Cotton part of his own private collection of documents, as did many other antiquaries and record-keepers, including William Lambarde

19 20 21 22 23 24 25 26 27

Tite, The Panizzi Lectures, p. 11 – 12. Tite, The Panizzi Lectures, p. 12. Tite, The Panizzi Lectures, p. 19. Fussner, p. 138. Toomer, p. 50 – 51, 581 – 582. Tite, The Panizzi Lectures, p. 19 – 20. Fussner, p. 120. Lee, “Cotton, Robert Bruce”; Fussner, p. 143. Fussner, p. 141 – 142.

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and Robert Bowyer.²⁸ Cotton’s friendships with government record-keepers may partially explain why his collection contained vast quantities of government manuscripts, including State Papers which officially belonged in the State Paper Office.²⁹ (Additionally, an important article by Carley traces the provenance of many individual literary and religious manuscripts in the Cotton collection back to the Upper Library of Westminster Palace – the monarch’s own private collection – most of which the Crown had acquired during the Dissolution.)³⁰ However, Tite suggests that Cotton’s collecting success was also partly attributable to a widespread notion that the Cotton collection, because of its status as a (perceived) public institution due to its generous access policy, was a proper place of deposit for government records; indeed, its better protection and organisation even led Agarde to thank Cotton for giving him originals of treaty copies that had been “careleslie lost” from the government repositories.³¹ As a result, some State Papers were officially entrusted to Cotton by government servants, sometimes for his use in research for the Crown.³² Some may have been “weeded […] by irresponsible clerks” and come to rest as “dislocated manuscripts” in Cotton’s collection.³³ Thus not all the vagabond State Papers in the Cotton collection arrived there through Cotton’s agency. The resulting fragmentation between the SPO and the Cotton holdings is captured by Brewer’s remarks on Henry VIII’s papers, noting of Cotton’s collection that it held more, and more interesting, materials for the King’s early reign than the SPO did.³⁴ Brewer concludes, after a minute examination of both the SPO’s holdings and the Cotton papers, that Cotton’s Henrician documents, which included “enclosures, addresses, deciphers, and […] missing portions of” correspondence in the SPO, undoubtedly belonged originally to the Crown (“They are, in fact, parts of one and the same series”) and adds the tight-lipped comment “By what fraud or negligence they found their way into the possession of Sir Robert Cotton it is not for me to inquire.”³⁵ In general, Cotton and Wilson were like rival “butterfly collectors” trying to snag the best records for their respective col-

28 Thrush, “The Government and its Records”; Cappon, p. 152; Fussner, p. 141; Tite, The Panizzi Lectures, p. 14. 29 Fussner, p. 145 – 147. 30 Carley, “The Royal Library as a Source for Sir Robert Cotton’s Collection.” 31 Tite, The Panizzi Lectures, p. 110 – 112. 32 Sharpe, Sir Robert Cotton, p. 64 – 65. 33 Cappon, p. 152. 34 Brewer, p. xii. 35 Brewer, p. xii.

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lections, and the resultant fragmentation has persisted till today: Wilson’s collection is at The National Archives, while Cotton’s papers are in the British Library.³⁶ As the above suggests, Cotton was from one perspective a considerable threat to the integrity of the State Papers, to the extent that his ‘library’ in fact eventually became an unofficial secondary (and sometimes even rival) repository of ‘secret’ Crown papers.³⁷ However, Cotton’s collecting must be viewed against a background of far greater chaos. All across the country, mixed collections of public records and private papers were held in the homes “of current and former government officials (and their descendants)” who never felt it necessary to return abstracted government papers to their rightful owner.³⁸ By obtaining these and making them available for research, in a collection that eventually formed a major part of the legendary British Museum archive, Cotton in fact did the nation a great service.³⁹ Of course, no one individual could compensate for the chaos of the public records’ situation, which persisted into the modern era. In the mid-nineteenth century Thomas bewailed the continuing “lamentable” scattering of the records between the PRO, the university libraries, the Lambeth Palace Library, the British Museum, and “almost every private Library of note.”⁴⁰ For a time Cotton enjoyed the patronage of the Crown, producing policy briefings (analysed in Part Two), but it was his service as a knowledgeable supplier of materials from his collection – a role that today would be classified as a reference archivist – that made his towering reputation.⁴¹ His influence can be best understood against the background of a government office-holding and patronage system that encouraged corruption and ever-increasing fees for government services, including access to records.⁴² Indeed, government servants even had to bribe each other to obtain co-operation in carrying out official business.⁴³ At the same time, the Tudor revolution in bureaucracy of the 1530s identified by Elton, which re-organised central government on a national basis (instead of its previous centre in the mediaeval Royal household), had brought increasing specialisation and an explosion of records production.⁴⁴ Given these factors, Cotton may have been able to derive great prestige – and career advancement – from his unfailing

36 37 38 39 40 41 42 43 44

Ailes and Mair. Cappon, p. 152. Cappon, p. 153. Kippis, p. 305. Thomas, A History, p. 14. Fussner, p. 118. Fussner, p. 140 – 141. Fussner, p. 140 – 141. Fussner, p. 139.

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courtesy and extraordinarily generous and neutral provision of access to his unparalleled collection, irrespective of politics or religion.⁴⁵ He corresponded with the English Benedictine monk Augustine Baker, who had asked him for materials for the English Catholic nunnery Our Lady of Consolation in Cambrai, Flanders, and gave him the run of his own collection when Baker returned to England as a Catholic missionary; he may even have facilitated Baker’s research in the Tower records repository.⁴⁶ (With respect to religious tolerance, Cotton contrasts strikingly with the rabidly anti-Catholic Thomas James of the Bodleian Library and, of course, William Prynne, both discussed later.) As Kippis put it in the eighteenth century, Cotton’s “House and Library were always open to ingenious and inquisitive persons.”⁴⁷ He enjoyed a unique stature in early Stuart England and earned admiring citations even from those who might have been expected to be his political opponents, given his assistance to the Parliamentarian side: for example, John Selden’s persecutor Bishop Mountague called the Cotton collection “the magazine of history.”⁴⁸ Most major historical works of the seventeenth century, whether focussed on the mediaeval period or the more recent past, owed a great debt to Cotton, including Thomas Rymer’s official Foedera project, for which Rymer “worked long hours in Cotton’s library.”⁴⁹ John Selden learned much from both Cotton and his library, and dedicated his famous and controversial Historie of Tithes to him in gratitude.⁵⁰ The heavy use of the Cotton collection by the Society of Antiquaries foreshadowed the role that the collection would play in the Parliamentary constitutional debates, examined in Part Two.⁵¹ The collection was also used frequently for purely legal research, with attorneys – including Attorney-General Sir John Hobart – borrowing common-law precedents from Cotton, and the judge and MP Sir John Bennett drawing on it for precedents to use in his defence during court proceedings for corruption.⁵² Coke borrowed abridged editions of Parliamentary records from Cotton, while Sir Henry Montagu asked to see Cotton’s civil law materials in a question concerning Hanseatic trading privileges.⁵³ Noblemen often asked him for title deeds to lands

45 Fussner, p. 131, 135, 137; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 9; Toomer, p. 45. 46 Fussner, p. 137; Knowles, contribution to “The Value of Sixteenth- and Seventeenth-Century Scholarship to Modern Historical Research,” p. 121. 47 Kippis, p. 300. 48 Fussner, p. 136. 49 Fussner, p. 147– 148. 50 Kippis, p. 300; Fussner, p. 119; Cappon, p. 151. 51 Cappon, p. 155. 52 Fussner, p. 136 and 138. 53 Sharpe, Sir Robert Cotton, p. 77.

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purchased by their families during the Dissolution.⁵⁴ These episodes demonstrate, for Fussner, Cotton’s proto-professional status “as an impartial authority of matters of history and record.”⁵⁵ Cotton’s collection, though officially ‘private,’ was de facto a public – and nationally important – institution.⁵⁶ It was patronised by the entire Jacobean Establishment, including the Royal couple.⁵⁷ Its openness, Sharpe suggests, would be its and Cotton’s downfall: “Though a storehouse of official papers and arcana imperii, the library was open to all, and the failings of divine monarchs were laid bare to lowly mortals.”⁵⁸ Not only was Cotton extraordinarily generous with his own collection, but he also used his influence at Court to broker access to other repositories for researchers. The aged Ferdinando Pulton, who had edited the official Statues of the Realm during the Elizabethan age, now embarked upon his great scholarly edition “of known English statutes,” The Statutes at Large (which begins, unsurprisingly, with Magna Carta).⁵⁹ In order to complete this work he “required free access at all times to the records in the Tower,” but was blocked by the keepers Elsynge and Bowyer.⁶⁰ Fussner suggests that they were jealous of their use fees, but as Read Foster’s account makes clear, this was not the only factor.⁶¹ Because he was so frail, Pulton wanted them to deliver a Parliament records roll to his residence every day, and they retorted that “they could not in all conscience […] remove a record from the Tower.”⁶² Also he was not capable of deciphering the records himself, since he was out of practice in palaeography, and needed their help to do so.⁶³ Pulton asked Cotton to mediate between himself and Bowyer, with whom “he had had differences,” and also offered to present the end product for censorship “to Cotton or […] the judges” prior to publication.⁶⁴ Cotton succeeded in obtaining the requested access for Pulton in 1611, via the Privy Council, who overruled Elsynge and Bowyer.⁶⁵ Cotton’s collection can be seen as part of a wider European context, similar to a number of so-called ‘private libraries’ in France and Italy – like that of Jacques

54 55 56 57 58 59 60 61 62 63 64 65

Sharpe, Sir Robert Cotton, p. 79. Fussner, p. 139. Fussner, p. 136. Sharpe, Sir Robert Cotton, p. 78 – 79. Sharpe, Sir Robert Cotton, p. 79 – 80. Fussner, p. 142. Fussner, p. 142. Fussner, p. 142. Read Foster, “Mr. Elsyng,” p. 7. Read Foster, “Mr. Elsyng,” p. 7. Fussner, p. 142 – 143. Fussner, p. 143.

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Auguste de Thou, President of the Paris Parlement – which were so generous to scholarly enquirers that they came to be viewed as constituting a “republic of letters.”⁶⁶ Cotton was the main English contact of the “French and Dutch Republics of Letters,” part of a network that exchanged knowledge and primary sources, and Selden remarked on his fame amongst the learned of Europe.⁶⁷ (Sharpe devotes an entire chapter to Cotton’s interactions with Western European scholars.)⁶⁸ On the domestic scene, Cotton helped to supply Oxford University’s Bodleian library out of his own collection, and there survives a rambunctious letter from a Sir Henry Savile arranging a collecting appointment at Cotton House for himself and Sir Thomas Bodley: And remember, I give you faire warning, that if you hold any booke so deare, as that you would bee loath to have him out of your sight, set him aside before hand. For my own part, I will not do that wrong to my judgment, as to choose of the worst, if better be in place; and beside, you would account me a simple man.⁶⁹

Chalmers notes that this letter has been misinterpreted as evidence that Sir Thomas Bodley could not be trusted around interesting volumes, but that it is clear “that no such thing was intended, and that Sir Henry Savile was only in jest.”⁷⁰ This is probably the Sir Henry Savile mentioned by Harris Willson as involved in checking the Latin translation of James I’s Premonition made by Thomas Wilson and others; Harris Willson describes Savile as “the learned though worldly warden of Merton College.”⁷¹ On his death, Cotton left the ‘library’ to his son Sir Thomas, and he and Cotton’s grandson Sir John “very much augmented and enlarged” the collection.⁷² The statutes under which the Cotton collection was acquired for the public bear closer examination. Two Acts concerning the Cotton collection were passed following the Glorious Revolution of 1688. In 1700 (Tite gives the date as 1701), during the reign of William of Orange, an Act of Parliament determined that the Cotton Library would be given to the nation, and not “sold […] disposed” or “embezzled.”⁷³ Significantly, the language of this Act praises the Cotton collection for the constitutional knowledge that it contains: “of great use and service for the knowledge and 66 67 68 69 70 71 72 73

Cappon, p. 151. Soll, p. 26; Cappon, p. 151. Sharpe, Sir Robert Cotton, p. 85 – 110. Reprinted in Chalmers, The General Biographical Dictionary, Vol. 5, p. 482. Chalmers, p. 482. Harris Willson, “James I and his literary assistants,” p. 48. Kippis, p. 301. Kippis, p. 301; Cappon, p. 162; Tite, The Panizzi Lectures, p. 33.

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preservation of our constitution in Church and State,” the collection is “generally esteemed the best of its kind now anywhere extant.”⁷⁴ The Crown now acquires the collection “for public use and advantage” and vests it in trustees, while allowing Cotton House itself to be retained by the Cotton family.⁷⁵ (This activism on the part of the government concerning the Cotton collection contrasts oddly with the inertia relating to the actual government repositories). As a result of this Act three distinguished antiquaries were appointed to survey the collection and the conditions of its accommodation in Cotton House, which was found to be “very damp,” so that “many of the volumes” were discovered in “a state of decay.”⁷⁶ With the death of Sir John Cotton in 1702 the proprietary interest in the Cotton collection transferred to the Crown, but the collection was at once locked up and the public no longer had access to it.⁷⁷ Though Tite does not make the background explicit, this may have been part of the feuding within the Cotton family over the inheritance of Cotton House itself.⁷⁸ The Crown therefore decided that it was necessary to purchase the inheritance of Cotton House, and a further Act was passed in the reign of Queen Anne.⁷⁹ This 1707 Act praises the generosity of the Cotton family in having given the collection to the nation, but also criticises the current standard of security and usability, states that the collection should “not remain any longer useless,” and creates a public trust of Cotton House itself, vesting it “henceforth […] in the Queen, her heirs and successors, for ever.”⁸⁰ It also emphasises the Queen’s concern for accessibility: the collection must be made “useful to her own subjects, and to all learned strangers.”⁸¹ This suggests – perhaps unintentionally – a higher access threshold for foreigners (being ‘learned’), in contrast to an apparent everyman’s right of use for Anne’s own subjects. However, tragedy struck after the collection had been moved into Ashburnham House near Westminster Abbey, which the Crown had bought from Lord Ashburnham for its accommodation. On the 23rd of October 1731, a fire destroyed 111 volumes (one of which was Asser’s biography of King Alfred) and damaged a fur-

74 Planta, A Catalogue of the Manuscripts in the Cottonian Library, p. xii; Harris Nicolas, Public Records, p. 99 – 100. 75 Kippis, p. 301; Harris Nicolas, p. 99 – 100; Planta, p. xii; Tite, The Panizzi Lectures, p. 33. 76 Kippis, p. 301; Planta, p. xii; Harris Nicolas, p. 99 – 100. 77 Tite, The Panizzi Lectures, p. 75. 78 Tite, The Panizzi Lectures, p. 75. 79 Planta, p. xii; Harris Nicolas, p. 99 – 100; Tite, The Panizzi Lectures, p. 4; Kippis, p. 301. 80 Planta, p. xii; Harris Nicolas, p. 99 – 100. 81 Harris Nicolas, p. 100; Planta, p. xii.

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ther 99, including the only surviving manuscript of Beowulf. ⁸² Bizarrely, it was then moved first to “the new Dormitory” and then the “old Dormitory” of Westminster School before ultimately settling at the British Library.⁸³ In the meantime the collection was kept in very damp conditions so that, according to one eyewitness, it eventually afforded “Lodging and Food to numberless Shoals of Worms and other Insects.”⁸⁴ The contrast with the secretive access regime of the State Paper Office, later discussed, is startling given the overlap between the two collections, particularly in their holdings of diplomatic papers. The explanation for this liberality may simply be the weight of custom: the Cotton collection, though formally private, had been widely perceived as a public resource due to the generous lending policies of Cotton and his heirs, and this legislation presenting it to the nation simply made this status official.⁸⁵ The concern and, most importantly, openness shown by the new, post-1689 monarchy in these Acts contrasts dramatically with the previous closures of the Cotton collection by the Stuarts, the second instance prompted by Parliament’s use of it in researching the Petition of Right. In these instances the Crown took action “on the pretence that the information it contained was too dangerous to be disseminated,” or that Sir Robert Cotton “had allowed it [the collection] to be used by the enemies of this country.”⁸⁶ Indeed, William of Orange’s reference to “the knowledge and preservation of our constitution” fostered by the collection reads as a subtle, retrospective approval of its previous use in the constitutional debates and rebuke to Cotton’s persecutors, and serves to underscore William’s status as a parliamentary monarch. Furthermore, Anne’s explicit emphasis on making the collection useful and accessible to her subjects may have been intended to distinguish her – the last of the Stuarts – from her illiberal forebears.

82 Kippis, p. 301; Harrison, “Fire, Fire! The Tragic Burning of the Cotton Library”; Tite, The Panizzi Lectures, p. 38. 83 Kippis, p. 301; a detailed discussion of the event and the rescue operation can be found in Prescott, “‘Their Present Miserable State of Cremation’: The Restoration of the Cotton Library,” in Sir Robert Cotton as Collector. 84 Tite, The Panizzi Lectures, p. 39. 85 Cappon, p. 162. 86 Harris Nicolas, p. 99.

Part Two: English Archives and the Seventeenth-Century Constitutional Controversies

10 Archives’ role in the constitutional debates, and the Whig theory of history Prior to Part Three’s examination of access requests at the Crown’s private State Paper Office in the seventeenth century, it is important to investigate the political uses of the ‘public’ records and the Cotton collection during that period and just before. Part One of this book has already provided some intimations of the surprisingly tight nexus between politics and archives. The roles of common-law jurist, Parliamentarian, antiquary and archives-keeper often overlapped significantly in the early seventeenth century, but the political contribution of these individuals while charged with the custody of records has been largely overlooked.¹ The archival preoccupations of the strident political pamphleteer William Prynne have been insufficiently explored, while in the received portrait of Sir Robert Cotton the opposite problem can be seen: Cotton is famous for his manuscript collection, but his work as an astute policy advisor and constitutional researcher, particularly for the Crown, is often under-emphasised. The fact that “ancient records” were invoked in the constitutional turbulence of the seventeenth century is a commonplace in the historical scholarship of this era, but that this involved archives, archival research, and politically activist archives-keepers is frequently missed. Kate Peters’ recent essay is a rare and important exception, as is Christianson’s fleeting acknowledgement, in the context of Selden’s biography, that “painstaking archival research” was involved in developing the content of the Petition of Right.² There are also some references to archives, archivists, and archival research in the 2018 essay collection Writing the History of Parliament in Tudor and Early Stuart England (edited by Gajda and Cavill). A dismissive attitude towards old documents blights the writing of some of English history’s most famous exponents. A prime example occurs in the great Victorian legal historian F. W. Maitland’s famous Rede Lecture of 1901 about the common law’s triumph over the civil law through the institution of the Inns of Court. Here he describes the seventeenth century’s “struggle for the medieval […] constitution in which Coke and Selden and Prynne and other ardent searchers of moul-

1 This is a point similar to that made by Siddique in his study of various key figures of political thought, such as John Locke – the great contractual theorist of the Glorious Revolution – that their deep professional involvement in bureaucratic documentation, and awareness of its political significance, has yet to be properly researched by historians. Siddique, “Paperwork and Political Thought,” p. 4. 2 Kate Peters; Christianson, Discourse on History, p. 212. https://doi.org/10.1515/9783110791464-012

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dering records won their right to be known to school-boys.”³ (Emphasis added.) The exact location of these mouldering records, however, is left to the imagination. With similar vagueness, the Stuart expert G. M. Trevelyan commented that the House of Commons – having observed the fate of short-lived parliaments on the European Continent with insufficient anchorage in the past – dismissed general theories of government or ‘the rights of nations’ as insufficient to uphold their cause, and turned instead “to definite laws and customs peculiar to England.”⁴ While Trevelyan notes that the Commons conducted historical research to unearth “a period in English history from the thirteenth to the fifteenth century, when Parliament had controlled the counsels of the Crown,” and then “as lawyers […] pleaded statutes of the same period, which forbade the encroachments of royal power in specific matters, such as the imposition of particular kinds of taxation,” he does not make clear how this unearthing, or the locating of the historical statutes, was achieved.⁵ J. G. A. Pocock, author of The Ancient Constitution and the Feudal Law, the classic work on the idea of the Ancient Constitution, refers throughout only to ‘records,’ again with no investigation of the research involved. Even Glenn Burgess, Pocock’s successor and challenger on the field of ancient constitutionalism, refers vaguely to ‘records’ versus the ‘immemorial,’ but does not make explicit how, and with what effort, records were accessed or ‘immemoriality’ established.⁶ (The official view was that “legal memory” extended only so far back as Richard I’s coronation in 1189, and that ‘immemoriality’ therefore encompassed the period before it – a principle established by the first Statute of Westminster in 1275.⁷ However, this was determined centuries before the antiquaries’ rediscovery of Anglo-Saxon sources, so that the latter factor may have complicated their understanding of ‘immemoriality’ and pushed it further back.) While Burgess does recognise the role of legal antiquaries in the constitutional debates, he does not highlight their contributions as archives-keepers, completely missing John Selden’s tenure in the Tower records repository.⁸ When Burgess cites Arthur Agarde’s statement on the Ancient Constitution, “that the word ‘Parliament’ was French but that the institution could be found among the Saxons,” he does not identify Agarde in his professional archival context.⁹

3 4 5 6 7 8 9

Maitland, “English Law and the Renaissance,” p. 11. Trevelyan, England Under the Stuarts, p. 98. Trevelyan, p. 98. Burgess, p. 61 – 70. Toomer, p. 89; Kiralfy, “The Nation’s Memory: 1838 – 1988, 1189 – 1989,” p. 110. Burgess, p. 61 – 70. Burgess, p. 66.

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Haivry, Selden’s recent biographer, is somewhat more explicit in his discussion of how, in the public world of early modern England, “historical precedents and records wielded extraordinary authority […] Finding precedents was as effective as parliamentary legislation, as a way of establishing a rule of institution, [and] […] did not need the assent of political opponents.”¹⁰ He describes how “the assertive Parliaments of the early seventeenth century” increasingly sought “precedents for their political claims, in the parliamentary rolls lodged in the Tower of London.”¹¹ While Haivry goes further than most, reaching the records repository, the archival-institutional perspective is still conspicuous by its absence. Numerous factors are to blame for this oversight of the key archival function in the development of ancient constitutionalism and the debates surrounding Parliamentary rights. One is faulty nomenclature: as already shown, the persistent references to Cotton’s ‘library,’ in particular, have obscured both the nature of the materials within it and the type of research in primary sources that it enabled. When Fussner, for example, comments that “the towers of learning” were built by “Historians and linguists, librarians and antiquaries, politicians and patrons,” he is actually using the term ‘librarians’ to mean – mostly – archives-keepers.¹² Another factor is that English historians of the nineteenth and early twentieth centuries (whose writings made the Civil War, in popular consciousness, the pivot of English political history) actively disliked visiting archives.¹³ Many nineteenthcentury works of history scarcely cite primary sources, or do so only from published editions and calendars.¹⁴ (Trevelyan himself leans heavily on published primary source editions for his Stuart history.) It was only towards the end of the eighteenth century that “narrative historians,” such as Edward Gibbon and David Hume, began to adopt the philological research methods of the antiquarian/local history movement, and it was not until the later nineteenth century that some “‘scientific’ historians” began to cite primary sources in their works of narrative history.¹⁵ A reluctance to engage with dusty manuscripts seems to have lingered. It was left to Tübingen-born G. R. Elton – following the Second World War – to systematically sift through the State Papers on the Tudor era, commonly viewed as the most glamorous and exciting phase of English history, and do battle with their “unpredictable variety.”¹⁶ The modern records

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Haivry, p. 35. Haivry, p. 35 – 36. Fussner, p. 116. Riordan, “Materials for History?”, p. 72 – 73. Riordan, “Materials for History?”, p. 72 – 73. Riordan, “Materials for History?”, p. 52. Elton, quoted in Riordan, “The State Papers and the Writing of History,” p. 70.

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in general were usually consulted by foreign history scholars, and used by English enquirers only for “professional or genealogical purposes.”¹⁷ Instead, Hall notes, English-born historians of the sixteenth and seventeenth centuries, for which the State Papers are the most important source, “regarded the printed Calendars as the equivalent of the Papers themselves.”¹⁸ In this, as already indicated, they were probably encouraged by centuries of official English archival policy. Editions of records replaced the originals for research purposes in order to preserve them.¹⁹ This nearly uniform research approach may have been convenient, but the end product could not, Hall argued, be viewed as “either exhaustive or conclusive” – not for general history, and a fortiori not for specialist works.²⁰ Students needed to be able to understand the context of the papers’ production, their chain of custody, and the relationship between the various series and other sources of primary materials.²¹ Hall notes that contemporary historians showed no awareness of the epistemological issues raised by the potential non-correspondence of the calendars to the complete body of original records, perhaps because it required the specialised background knowledge of record-keepers like Hall: it is only once the extents of the surviving and the missing archival materials relevant to a particular subject are established that safe conclusions can be drawn from “the printed Calendars or texts.”²² Hall considered the use of calendars to substitute primary sources “quite unsatisfactory” and contrasted it unfavourably with Continental historians’ use of original materials.²³ He felt that calendars (as collections of records summaries) should be dispensed with in favour of basic finding aids to help identify relevant primary sources.²⁴ Significantly, records enthusiast Francis Cohen – later Sir Francis Palgrave, Deputy Keeper of the Public Records Office – was one of the first English mediaeval historians to substantially use primary sources instead of engaging in the literary and “imaginative reconstruction popular with historians such as Macaulay.”²⁵ These attempts to use the original re-

17 Hall, p. 103. 18 Hall, p. 83. 19 Riordan, “Materials for History?”, p. 74. 20 Hall, p. 83. 21 Hall, p. 83. 22 Hall, p. 84. It does not seem to have occurred to Hall that, given the chaotic pasts of many English records, such a determination would often be impossible. Similarly, the chain of custody of many documents is blurred. 23 Hall, p. 106. Hall takes a too undifferentiated attitude to calendars, some of which are masterpieces of scholarship. The present book has benefitted from the extraordinary precision of Mary Anne Everett Green’s Victorian calendaring of the Jacobean State Papers in particular. 24 Hall, p. 106. 25 Nelson, Francis Turner Palgrave and the Golden Treasury, p. 6.

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cords prompted Cohen’s dogged campaign, beginning in 1812, for the establishment of a central institution to safely store, describe, and make accessible the public records, a dream which came to fruition in 1838.²⁶ Overall, according to Hall, English historians lagged behind the Continent in method from the sixteenth and seventeenth centuries onward, missing the benefits of fully-fledged diplomatic criticism.²⁷ This is despite the fact that in the seventeenth century John Selden and others had pioneered careful textual analysis of primary sources. However, it must be admitted that the problem of access worsened significantly following this initial flowering of historical enquiry. By the mid eighteenth century it had become almost impossible to carry out primary source research due to the triad of an unreformed bureaucracy, ever-increasing quantities of paper, and “the continuation of the ancient system of fees and perquisites.”²⁸ There was also a political background to this superficial approach to historical research, which combined with (and indeed encouraged) a triumphalist focus on a few uplifting topics, described by Hall as “this trivial round of historical enquiry” into Magna Carta, the Spanish Armada, the English Revolution, the Battle of Waterloo, and so on.²⁹ This approach to history is attributable to the victory of the Liberal (Whig) interest in the Glorious Revolution of 1688 – 89 and the theory of history that it brought in train. This was Protestant, Liberal, patriotic, and relentlessly teleological, with no room for contingency in its predetermined progress towards parliamentary monarchy as the pinnacle of human achievement, via a struggle between moral absolutes (Catholics and Tories ‘bad,’ Protestants and Liberals ‘good’).³⁰ By applying a political overlay to history, with a view of the present as a static culmination of progress rather than a part of future history, the Whig historians essentially behaved as if “the voice of posterity is the voice of God and the historian is the voice of posterity.”³¹ This anachronistic investigation of the past, not for its own sake but with constant reference to the more progres-

26 Nelson, p. 6. 27 Hall, p. 157– 158. 28 Fussner, p. 76. 29 Hall, p. 110. 30 Butterfield, The Whig Interpretation of History, p. 11; Cronon, “Two Cheers for the Whig Interpretation of History.” 31 Butterfield, p. 59. Whiggish teleology in its schoolroom incarnation, celebrating the inexorable triumph of parliamentary democracy, freedom, and the rule of law, was satirised in 1930 by W. C. Sellar and R. J. Yeatman in 1066 and All That, A Memorable History of England […] including 103 Good Things, 5 Bad Kings and 2 Genuine Dates. It portrays the Civil War as “the Central Period of English History” (p. 63) and contains repeated, illogical instances of England becoming “top nation.”

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sive present, results in an “over-dramatization” of the historical narrative and an obstruction of historical understanding.³² Butterfield gives the example of the Whig failure to recognise “that Magna Carta is a feudal document in a feudal setting,” so that an analysis of this primary source in its actual historical context brings with it disillusionment “concerning something in the past which we had assumed to be too like something in the present.”³³ It is clear that detailed primary source research and Whig history, which proceeds via inferences to form an inspiring story, are inimical to one another.³⁴ Indeed, Butterfield observes that the more history is abridged, the more Whiggish it becomes.³⁵ Another, connected reason for the general oversight of archives’ and archiveskeepers’ involvement in the constitutional debates may be the negative attitude of narrative historians to the precise and workmanlike antiquarian school of English historical writing, which had “an extreme emphasis on documentation at the expense of literary style” and was preoccupied with presenting great amounts of historical and legal evidence.³⁶ These texts, such as Tory constitutionalist thinker Robert Brady’s Complete History of England, occupied a grey area between compilations of original sources and historical investigation – Fussner notes that most of Brady’s work “was taken up with conflations of medieval chronicles to which were added transcripts from the Tower records.”³⁷ Those historians who recognised the importance of analysing primary sources sometimes did so by way of belittling antiquarian enterprises. The eighteenth-century historian Madox emphasised the need to actively analyse primary sources.³⁸ In the same breath, however, he dismissed the intellectual skill involved in producing calendars and records editions. Antiquarians are content “to write and publish onely Farragos, that is to say, bare copies of Rolls and Membranes. Properly, these are not History; but Materials for it. To copy and publish these, amounteth to little more than Manual Labour; and doth not come-up to the character of an Historian.”³⁹ In this snobbish remark, he was echoing the ‘enlightened’ fashion for disparaging antiquarian research that Friedrich identifies in contemporary France.⁴⁰ In

32 Butterfield, p. 13 and 22. 33 Butterfield, p. 22. 34 Butterfield, p. 5, 10 – 11. 35 Butterfield, p. 6. 36 Fussner, p. 115; Riordan, “Materials for History?,” p. 73. 37 Fussner, p. 115. This may be indirect evidence for Brady’s possible (even if unofficial) stint as Keeper of the Tower records. 38 Riordan, “Materials for History?”, p. 71 – 72. 39 Madox, Firma Burgi, p. ix. 40 Friedrich, “Being an Archivist in Provincial Enlightened France,” p. 576.

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the case of England, however, the prejudice goes back at least to Bacon. He distinguished between “history proper, or perfect history, and antiquarianism, or history defaced” – the former referring to historical narrative as a vehicle for moral and political philosophy.⁴¹ By the end of the nineteenth century such patronising attitudes had triumphed, and archivists and records editors had been definitively demoted relative to historians, “to the practitioners of a subsidiary and auxiliary discipline.”⁴² They were, at best, useful drudges. Nevertheless, what antiquaries lacked in narrative historians’ flair they made up in substantive research, and their methods of scholarship would belatedly triumph. Fussner describes how “the modern idea of historical proof descended directly from the austere ‘record’ standards of the early antiquaries,” but adds that it took a long time for modern historians to reach or exceed the level of “textual criticism and analysis” of the period spanning “the late seventeenth” to “the early eighteenth centuries,” and that “In some cases” this was a recent achievement (relative to 1962, when Fussner’s book was published).⁴³ In 1908, record officer Hall made the snide comment that fifty years before, “the modern historian” had “appeared upon the scene, as a patron of Archives, but not as yet an original investigator” – apparently a veiled reference to the (still occasionally encountered) expectation that it is the role of the archivist to analyse the sources for the historian, who then takes the credit.⁴⁴ The blind spot for antiquarian and archival involvement in high politics may also be due to a cultural factor, the dominance of one particular, later work in the chorographical tradition of antiquarianism, which came to define the entire antiquarian genre. The Natural History and Antiquities of Selborne, published in the tumultuous year 1789 by Gilbert White, has associated the antiquarian movement with a timeless rural England in which an innocent country parson forever plots the slow peregrinations of his ancient tortoise Timothy.⁴⁵ Its status as a classic and the best-known English antiquarian work made it a cornerstone of the unhistorical, pre-Second World War ‘Deep England’ myth (a phrase coined by Patrick Wright, transposing from the analogue notion of la France profonde).⁴⁶ Here coun-

41 Broadway, p. 58. 42 Riordan, “Materials for History?”, p. 72. 43 Fussner, p. 115 – 116. 44 Hall, p. 11. 45 Keel, “Gilbert White: The naturalist whose poetic but precise words changed how we see the world.” 46 Wright, The Village that Died for England, p. xii.

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try life continues changelessly – rather like some iterations of the Ancient Constitution – far from the disturbances of high politics or progress.⁴⁷ The Natural History and Antiquities of Selborne was a reliable bestseller in wartime, one of those talismanic books that twentieth-century English parents tucked into rucksacks.⁴⁸ The towering reputation of White’s work, and a more general cultural association between local history and preservationist-conservative instincts, may have obscured the vigorous political engagement of other, earlier antiquaries and archives-keepers in the interests of Parliament and the rights of Englishmen versus the Crown. It probably did much to solidify the durable and misleading image of antiquaries as ‘otherworldly,’ a wholly inappropriate word when applied to individuals such as William Lambarde, author of The Perambulation of Kent and previously encountered in this book displaying great political awareness and diplomacy in his conversation with a betrayed Elizabeth I.⁴⁹ In addition to his contributions as an antiquary and archives-keeper, Lambarde was a vigorous common-law attorney, an MP, author of the legal handbook Eirenarcha (which compiled “the common law, ordinances and statutes”), with ground-breaking contributions to judicial ethics and a campaign against corruption in the legal system.⁵⁰ His work was also significant from a constitutional point of view, tracing English law back to the Anglo-Saxons.⁵¹ In Lambarde’s sophisticated defence of common-law trial by jury as opposed to trial by prerogative courts, he emphasised three aspects: “the spiritual authority of the common law,” “the reason undergirding the ordinances and statutes,” and the upholding of civil peace “within the capacity of the jurors to see, to hear and to report evil doers.”⁵² Cappon argues that the exclusive association of antiquaries with “local history and the limited viewpoint that the term commonly implies” commits a “grave injustice.”⁵³ This perspective ignores the pioneering combination “of primitive archeology, topography, genealogy, biography, and historical narrative” in antiquarian investigations.⁵⁴ It also overlooks antiquaries’ systematic use and awareness “of primary sources as the essential element for research” – supplementing the 47 Though even White’s ethereal work did not skirt politics altogether, containing some strong censure, in The Antiquities of Selborne, of pre-Reformation English monks’ foppishness and debauchery. 48 West, “Gilbert White: the modern naturalist.” 49 Prest, “William Lambarde, Elizabethan Law Reform, and Early Stuart Politics,” p. 466. 50 Prest, p. 466 – 471; Levy, p. 137; Dunkel, “William Lambarde of Lincoln’s Inn,” p. 1337; Gajda and Cavill, p. 38 – 39. 51 Levy, p. 137– 138: Archer, “Elizabethan chroniclers and parliament,” p. 225. 52 Dunkel, p. 1339. 53 Cappon, p. 147. 54 Cappon, p. 147.

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gaps in the Tower holdings with research in the provinces – and the beginnings of a modern scepticism towards the myth-inflected “ancient chronicles.”⁵⁵ The extraordinary effort involved in the various researches of the origins of families, places, and ancient institutions is highlighted by Cheney.⁵⁶ It was necessary to “overcome great obstacles” in reconstructing “this history of ancient institutions,” since “it was seldom an easy task to determine the exact provenance of an archive or relate it to others in a series” when researching amongst the Tower’s ancient records.⁵⁷ Finally, the strong association between archives and archives-keepers and the legal sector may also have discouraged narrative historians from investigating the formers’ roles in the seventeenth-century tumult. Indeed, the connection of archives with law was one of the reasons suggested by Hall in 1908 for modern history students’ late-coming to the archives, which up until then had been “regarded as the special province of the legal practitioner and the legal antiquary.”⁵⁸ This important lacuna is remedied in the following chapters of Part Two. The political uses of archives and the engagement of archives-keepers during the seventeenth-century constitutional debates are examined via the various involvements of the judge Sir Edward Coke and the archives-keepers and jurists Sir Robert Cotton, John Selden, and William Prynne. The latter were two of the most prominent Keepers of the Tower records, but with different views on the Ancient Constitution.

55 56 57 58

Cappon, p. 147. Cheney, p. 7. Fussner, p. 33. Hall, p. 10 – 11.

11 The English legal system in the seventeenth century and the permissions regime for the public records Almost every man and a surprising proportion of women in England engaged in civil litigation in the period before the eighteenth century.¹ Indeed, it would be hard to exaggerate the English obsession with law “during the early modern period and especially the seventeenth century.”² English people were more aware of ‘the law’ – by which they usually “meant the common law” – and more litigious than at any time subsequently.³ This legalistic sensibility had much to do with the addition of new courts under the Tudors and with the Dissolution of the Monasteries, which had created massive “changes in landownership” and therewith “ample causes of dispute.”⁴ Matthew Arnold, writing in the nineteenth century, noted that while rationality was the major preoccupation of the French Revolution, legality had defined the English.⁵ Law was thus a far more obtrusive presence in daily life than it is in the modern age. Chapman’s enumeration of John Milton’s legal disputes, typical for the time, in which Milton spent “years in and out of courts” on financial and property suits, raises the question of how he found time for his literary and political activities.⁶ English archives were kept for predominantly legal considerations; the everyday nature of litigation meant that even family archives were retained for protection rather than prestige.⁷ Possession of ‘records’ in the legal sense equalled power, in both the public and the private spheres (which, as previously noted, were not meaningfully separated during this period). Holding the records related to a specific function or office was sometimes put forward as an argument for their possessor’s appointment to it, though it is unclear whether, in such cases, there was an implicit understanding that the records were being held hostage to achieve this specific goal. For example, in 1619 a Robert Curwen offered to do the Crown “service in Westmoreland, which he can perform the more readily, having the records of the lands in his hands” and complained that the former “Chancellor of the

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Lemmings, Going to Law: The Rise and Fall of Civil Litigation, p. 56. Chapman, “Milton and Legal Reform,” p. 529. Chapman, p. 529 – 530, 532. Wernham, p. 24. Chapman, p. 529. Chapman, p. 530. Kate Peters, p. 157; Fussner, p. 26.

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Duchy” had privately thwarted him in obtaining the office, despite publicly recommending him for it.⁸ The State Papers are full of cases in which precedents were sought and/or used to determine jurisdictions or applicable procedures that had been allowed to lapse. The issue of the Welsh Marches’ jurisdiction over the four English shires in the border region was researched for court proceedings in 1608 using “collections out of original records.”⁹ In 1616 “precedents from records” were invoked to show that the Cinque Ports had jurisdiction over pirate ships “captured between Margate and Broadstairs,” likely the list of precedents beginning with Richard II which showed that the Cinque Ports’ Lord Wardens had a “right of Admiralty” which “extended to the main sea.”¹⁰ In 1622 the Lord Steward (the Duke of Lennox) received, at his request, “a view of the records concerning the jurisdiction of the Lord Steward, Treasurer, and Comptroller of the King’s Household, not as now exercised, but as originally instituted,” a treatise which included the Lord Steward’s civil, criminal, and household jurisdictions and the offices which were under him.¹¹ Parties to legal disputes often petitioned the government for access to the records that they needed in their own cause. In 1611 Richard Heaton, who appears to have been a victim of imprisonment without charge, writing that he was “committed on suspicion only,” petitioned to be allowed access to a lawyer “and to have the records searched upon his cause.”¹² Emanuel Alley asked in 1619 “for protection against the multitude of suits brought against him […] on behalf of the town of Dover, and for copies of the records relating to his office and the Petty Customs,” while Caleb Morley, also apparently in 1619, asked for “access to records to prove his petition” in his own defence.¹³ Another example, combined with an interesting commercial instance of search and seizure of records, occurred in 1621 when the “East India merchants” impounded all the ‘books’ and goods belonging to their employee George Ball who was under suspicion of committing “wrongs in his accounts,” upon which he petitioned the Privy Council to order “the merchants 8 Cal. State Papers Dom. (1619 – 23), p. 6. This overture, although apparently initially successful, seems to have been frustrated in 1621 by the freeholders of Kendal, who argued that they did not hold their lands “by Knight’s service” so that Curwen could not claim “the wardship of their heirs.” The legal dispute proceeded to a commission – which decided against Curwen – and was then referred to “the Prince’s Council,” to which Curwen planned to bring “the records on the case.” Cal. State Papers Dom. (1619 – 23), p. 216. 9 Cal. State Papers Dom. (1603 – 10), p. 405, 423. 10 Cal. State Paper Dom. (1611 – 18), p. 369, 421. 11 Cal. State Papers Dom. (1619 – 23), p. 457. 12 Cal. State Papers Dom. (1611 – 18), p. 82. 13 Cal. State Papers Dom. (1619 – 23), p. 94, 98.

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[…] to expedite their suit and allow him copies of his account books for his defence.”¹⁴ The prime importance of ‘records’ is shown by a number of cases in which an accusation of embezzling or withholding records (whether true or not) was perceived as outrageous enough to feature as part of a power struggle. In a petition apparently from 1619 involving the turbulent College of Arms, the heralds for Somerset and York alleged that they had been wrongfully accused by the “Garter and Norroy Kings-at-Arms” in order to distract from their “own misconduct,” which included the “imperfect keeping and embezzling of the records of the office.”¹⁵ In 1620 John Howell rejected the accusations that he had claimed to own outright the property in Pembrokeshire which he held of the Prince of Wales, destroyed the boundaries that separated it from his own freehold properties, and deliberately “withheld the records” concerning the matter.¹⁶ Also in 1620, in a separate incident, Thomas Godfrey, a magistrate in Lydd, asked to resign from the post because the inhabitants had falsely accused him of tax evasion, and he himself made a counter-accusation of “abuses in disbursing the town money” and “embezzling the records.”¹⁷ Adding to the tumult of the early modern period was the fragmentation of the legal system, with multiple individual, intersecting, and sometimes contradictory jurisdictions.¹⁸ Sir Edward Coke listed sixteen of these, but four were of main importance.¹⁹ The “dominant jurisdiction” was the common law, on the ascent towards hegemony in this period.²⁰ Chapman describes it as “that vast, shaggy mass of parliamentary statutes, judicial ideas, case-based precedents, and ageold legal customs that had generally predominated in courts across England for time out of mind.”²¹ The other three main jurisdictions were the ecclesiastical courts, which were based on civil law; the prerogative jurisdiction pertaining to the Crown (such as the Court of Star Chamber); and the courts of equity such as the Court of Chancery, with their supplementary or alternatively corrective func-

14 Cal. State Papers Dom. (1619 – 23), p. 307. Where suitable records for legal cases did not exist, they were sometimes falsified, such as in the case of a chorister called Robert Withers who, it was claimed in 1612, had obtained a judgment for wrongful dismissal against the Bishop of Exeter by this means. Cal. State Papers Dom. (1611 – 18), p. 119. 15 Cal. State Papers Dom. (1619 – 23), p. 110. 16 Cal. State Papers Dom. (1619 – 23), p. 113. 17 Cal. State Papers Dom. (1619 – 23), p. 155. 18 Chapman, p. 532. 19 Chapman, p. 532. 20 Chapman, p. 532. 21 Chapman, p. 532.

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tion (based on rules of fairness) in cases where the common law either had no answer or would have led to unjustifiable hardship.²² In the 1600s civil law-trained attorneys, who were in a small minority, had two main areas of operation: in addition to the Church courts, they were active in the Admiralty court, responsible for adjudicating on shipping and mercantile commercial matters.²³ However, Roman law played an unwontedly large role beyond the solely English context in the field of inter-Britannic relations, especially in the context of James’s hoped-for Anglo-Scottish union under one Imperial Crown – a concept foreign to the common law, but one deployed by Tudors and Stuarts to assert English sovereignty against the Pope.²⁴ It was the prospect of this Union and the accompanying threat of the submergence of English common law in the Scottish civil law tradition that initially motivated Sir Edward Coke to start publishing his Reports on English law in 1600, a project that he then continued in response to the perceived threat to Parliament from the new king.²⁵ The fear that the Union could revive the civil law was widely shared by common lawyers.²⁶ A widespread view saw in civil law a grave threat to the English constitution, based on an interpretation of the Roman law tradition as inherently tyrannical, exploited by Continental rulers versus the Popes “to foster their acquisition of absolute authority” in inimical contrast to the checks and balances of the English paradigm.²⁷ This was most likely a misunderstanding of the Corpus Juris Civilis. ²⁸ However, its galvanising influence on common law theorists in defence of the Ancient Constitution should not be underestimated. Civil law governed relations with conquered countries, such as Ireland.²⁹ When the Attorney-General of Ireland, Sir John Davies, invoked Roman law’s conquest doctrine in his legal history of Ireland (discussed later in Part Three) to defend “the replacement of Irish customs with English law,” and deployed civil law to fill legal gaps in Ireland for which the English common law had no solutions, he was using it in “an imperialist function.”³⁰ Civil law, like the law of equity, could

22 Chapman, p. 532 – 533. 23 Burgess, p. 121. 24 Burgess, p. 126 – 127. 25 Garnett, “Sir Edward Coke’s Resurrection of Magna Carta,” p. 53 – 54; Lake, “Afterword,” p. 390 – 391. 26 Sharpe, Sir Robert Cotton, p. 153. 27 Burgess, p. 121. 28 Burgess, p. 121. 29 Burgess, p. 127. 30 Burgess, p. 127– 128; see also Goldie, “The Ancient Constitution and the Languages of Political Thought,” p. 29 – 30. According to Kippis, Davies was a member of the Society of Antiquaries, a learned association discussed later: Kippis, p. 298 fn. C.

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be used interstitially in England as well, remedying lacunae over which the common law had no jurisdiction, for example in matters “that needed to be tackled from an international perspective” – a carefully circumscribed field of operation.³¹ In the seventeenth century the common law would achieve “jurisdictional sovereignty.”³² The Long Parliament “essentially abolished the prerogative courts” since these were connected with the absolutist pretensions of the Stuart monarchy, while it also “radically curtailed the jurisdictional range of the Romano-canon law” of the ecclesiastical courts.³³ In the early seventeenth century the common law was on a robust upwards trajectory due to the growing influence of the Inns of Court as the main centre for legal education, a private voluntary society consisting of Middle Temple, Inner Temple, Gray’s Inn, and Lincoln’s Inn.³⁴ Already in the earlier part of the century the common law was an engine of social mobility for yeoman farmers’ sons, who were thus able to attain the status of gentlemen – a circumstance which infuriated civilian jurist Thomas Wilson, the younger son of a gentleman and jealous of his own precarious social position.³⁵ He remarks cattily in his work The State of England (1600) on “my yonge masters […] not contented with their states of their fathers to be counted yeoman and called John or Robert (such an one), but must skipp into his velvett breches and silken dublett and, getting to be admitted into some Inn of Court or Chancery, must ever after thinke skorne to be called any other than gentleman.”³⁶ Wilson paints a grim picture of a country swarming with common lawyers intent on stirring up trouble for their own profit, particularly property and inheritance disputes, “there being no province citty towne nor scarce village free from them, unlesse the Isle of Anglesey, which boast they never had lawyers nor foxes.”³⁷

Records access for legal and historical research purposes Given the predominance of the common law in this era, and its reliance on precedent, it follows that access to records of previous court cases was of pressing concern to litigants.³⁸ This leads to a consideration of the access regime of the Excheq-

31 32 33 34 35 36 37 38

Burgess, p. 130, 146 – 147. Chapman, p. 530. Chapman, p. 533. Chapman, p. 533; Aikenhead, “Students of the Common Law 1590 – 1615,” p. 244. Wilson in Fisher, The State of England, ‘anno Dom.’ 1600, by Thomas Wilson, p. 19. Wilson in Fisher, p. 19. Wilson in Fisher, p. 25. Wernham, p. 12.

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uer’s archival storage, dominated by the Tower of London repository, which housed the public records – “the records of the courts” to which the public had a right of access.³⁹ Here, however, it is important to make an internal distinction. The Exchequer repositories, as noted in the previous section on finding aids, not only contained legal ‘records’ but also other, more restricted classes of documents. Palgrave suggested that access to the archival storage of the Exchequer was not universally free; the records of the Exchequer Treasury in Westminster Abbey “could not even be inspected without some special authority: and an order of Council was required for their production even before that Board.”⁴⁰ This is explained by the fact that diplomatic records, locked in the Exchequer Treasury, were particularly restricted.⁴¹ Palgrave’s contention is supported by Powell’s remark in his finding aid that “Some ancient Treaties with Foreigne Estates […] are kept in a Treasurie adioyning to the foresaid Round Treasurie […] very strictly vnder sixe Keyes, belonging to so many seuerall Offiicers of the Exchequer.”⁴² This meant that the co-operation of all six officers would be necessary in order to provide access to these treaties. According to Palgrave, this regime was meant to continue even after the State Paper Office’s establishment, but the regular accessioning of treaties to the Exchequer was “interrupted by the erection of the State Paper Office.”⁴³ As far as can be determined, the overlap between the two repositories was unintentional: on signing the patent for the establishment of the State Paper Office to receive the papers of the Secretary of State, it does not seem to have occurred to James I that these would necessarily contain diplomatic papers, which belonged in the Exchequer Treasury.⁴⁴ In 1621 Thomas Wilson was required to deliver up to the Exchequer Treasury various treaties with France and other countries “from 1522 to 1619,” which suggests that the Crown attempted to address this anomaly after the fact.⁴⁵ Thus in practice there were three different main access regimes: for the public legal records, for the restricted records in the Exchequer Treasury, and for the secret Royal archive known as the State Paper Office. It was a long-established right of every Englishman to consult court records, as Sir Edward Coke made clear – though in practice access rights could be vitiated by the “customary fees for search.”⁴⁶ It is worthwhile repeating, in this context, that

39 40 41 42 43 44 45 46

Riordan, “‘The King’s Library of Manuscripts,’” p. 182. Palgrave, Antient Kalendars, Vol. I, p. xxv. Palgrave, Antient Kalendars, Vol. I, p. xviii, xxii. Powell, p. 50. Palgrave, Antient Kalendars, Vol. I, p. xxii. Palgrave, Antient Kalendars, Vol. I, p. xxii-xxiii. Palgrave, Antient Kalendars, Vol. I, p. xxiv. Fussner, p. 33.

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the ancient principle of access is borne out by the incident of 1372 in which the Commons protested refusals to allow access to legal records. Cappon’s contention that “It was not the prevailing opinion that public records belong to the people” is thus misleading in its implication concerning the right to access legal records.⁴⁷ The seventeenth century saw an increase in the public records’ use by “lawyers, historians, and royal officials,” and to meet the demand “Books on record searching” were written and published in the early decades.⁴⁸ A prime example was Thomas Powell’s 1622 Direction for Search. As Powell was an attorney, it was probably based on his own experience of searching the public records.⁴⁹ It contains a précis of the Tower repository’s contents: the archive holds records that begin “with some part of King Richard the third, and so extend backward towards the Conquest; howsoeuer, it hath but few Records more ancient, then of King Iohn, and Henry the second.”⁵⁰ This vagueness somewhat substantiates Fussner’s assertion that Powell “could provide only very general information on exactly what records the Tower contained.”⁵¹ Stenton notes that Powell’s finding aid was supposed to assist primarily legal, not antiquarian, researchers.⁵² In it, Powell explains that the inability to find legal records has contributed to an explosion of litigation, in which the judges are continually required to decide the same points repeatedly. This would be unnecessary if the parties could only find the records that they needed: “The necessitie of this Subiect complaines it selfe in the Multiplicitie of Suites, their expences, and dependencies: which for want of their proper Records, are brought into the Court in so many Fractions; that the Iudge, (how painfull, or learned soeuer) can hardly reduce them into whole numbers.”⁵³ The hunt for precedents was not confined to the flood of private litigation in this era, but “bureaucratic disputes of all kinds” were resolved using “administrative precedents found in the records.”⁵⁴ An example of such an internal dispute and its use of precedents is the 1604 case mentioned previously, over the right to appoint the Keeper of the records in the Tower. However, Powell cautions that this finding aid, based on twenty years’ of his own experience and note-taking in the repository, is only meant for legitimate enquirers and not for those with vexatious motivations, to “arme and inable […] pur-

47 48 49 50 51 52 53 54

Cappon, p. 154. Fussner, p. 33. Fussner, p. 79. Powell, p. 16. Fussner, p. 81. Stenton, p. 275 – 276. Powell, p. A3. Also quoted in Stenton, p. 275. Fussner, p. 33.

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poses of prying into mens estates.”⁵⁵ This remark is clearly made against the background of the widespread probate litigation of the times, in an era when property conferred extraordinary social status: only property holders were thought to have “a vested interest in the maintenance of law, order and social harmony.”⁵⁶ (This notion would be eloquently contested using a natural rights argument for participative democracy during the 1647 New Model Army constitutional debates).⁵⁷ Powell’s remarks raise the intriguing question of how this distinction was made in practice, if vexatious interests were grounds for the refusals of access which – according to Toomer – could occur.⁵⁸ On the face of it, this would have required indepth legal awareness and analysis of the records by the Tower staff. The distinction may have been enforced via the system of checks inherent in the exemplifying process (the production of an authorised copy for evidential purposes) for records of real property that involved the estates of more than one party.⁵⁹ First the enrolled version of the record had to be located, and “engrossed” or copied by the office clerk, and the copy together with the enrolment was then examined and manually endorsed by two Masters of Chancery; the docket from this examination and endorsement was then taken to the “Lord Chancellor or Lord Keeper of the Great Seale,” who checked all the documents again, and finally allowed the exemplification to pass the Great Seal.⁶⁰ However, there appears to be no evidence to support Yax’s assertion that in order to access the public records “scholars had to be introduced to and known by the deputy chamberlains,” except in the very obvious sense that access to the records was provided by the Exchequer deputy chamberlains and users could not simply walk into the repositories without introducing themselves.⁶¹ It may be that the special grace-and-favour access regime of the private State Paper Office, discussed later, has contributed to such confusions: there, access certainly was a question of knowing the right people. Not only non-current records that had been transferred to the Exchequer repositories could be accessed, but also recent “Inquisitions post Mortem” as well as Royal grants “which passed the Great Seale but within foure or five yeares last past.”⁶² These were not yet to be found in the Rolls Chapel, but “either with the Riding Clarke (who is one of the six Clarks of the Chancerie, and takes his turne

55 56 57 58 59 60 61 62

Powell, p. A3. Also quoted in Stenton, p. 275. Bonfield, “Abstract,” Devising, Dying and Dispute: Probate Litigation in Early Modern England. Tristram Hunt, “A jewel of democracy.” Toomer, p. 54. Powell, p. 13. Powell, p. 13. Yax, p. 65. Powell, p. 11.

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to doe that seruice) for his yeare (that is, to haue the controlling of all Grants which passe the Great Seale:) Or else (if they be past him) they are in the Office of the Petty Bagge […] And yet the Clarkes of the Chaple can as sufficiently make the said search for you, as any other, and for the like Fee, &c.”⁶³ The key requirement for a document to be enrolled in order to be a legally binding ‘record’ in the English common-law system is shown by Powell’s insistence “that you may exemplifie nothing of course, but what is inrolled, though it be amongst the Bills signed, or by neglect or chance be omitted out of the Inrolment: Neither can an Inrolment be altered, in case where the Originall and Inrolment agree not, though by the fault of the Clarke who inrolled and ingrossed the same; without extraordinary and most curious examination of all the great Officers of the Chancerie” – which, it can be imagined, was a significant ordeal for the negligent clerk responsible.⁶⁴ The precision of these requirements is not surprising at a time when evidential rules were being “developed and refined.”⁶⁵ The fee regime set out in Powell’s finding aid for the Chancery records, which was also applied to the Tower records repository, has been discussed by both Riordan and Peters (the latter examines this schedule as reprinted in the later Powell/ Agarde Repertorie of 1631). The shilling fee to examine the separate, clearly more detailed “index or calendar” of the Chancery records was so expensive, according to Peters, because the index represented “the skilled labour of the record clerks.”⁶⁶ The charge to see a record was four pence, while a copy of one page cost eight pence, plus, according to both finding aids, two shillings “for the hand to it,” which seems, as Peters notes, to be an extra fee for enlisting the copying service to begin with.⁶⁷ (Exemplification fees, exacted for every stage of the bureaucratic process outlined above, were additional.)⁶⁸ Here Peters reads the amount as twelve pence, which would be one shilling. However, in both the Directions for Search, where it stands as “ij s,” and in the Repertorie, where it appears in an l. s. d. (pounds, shillings, pence) table with the number 2 in the s. column, it is quite clearly two shillings: twice as much.⁶⁹

63 Powell, p. 11. 64 Powell, p. 14. 65 Chapman, p. 530. 66 Powell, p. 14; Kate Peters, p. 162; Riordan, “The State Papers and the Writing of History,” p. 71. 67 Agarde/Powell, Repertorie, p. 4; Powell, p. 14; Kate Peters, p. 162; Riordan, “The State Papers and the Writing of History,” p. 71. 68 Powell, p. 14 – 15. 69 Riordan, “The State Papers and the Writing of History,” p. 71; Kate Peters, p. 162; Powell, p. 14; Agarde/Powell, Repertorie, p. 4.

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The ten shilling fee for searching in the Tower, which equates roughly to £100 in today’s money, is interpreted by Peters as a fee merely for entering the Tower repository, no doubt based on the vague wording in the Repertorie (“the Search of any thing heere is tenne Shillings”), but by Fussner as the fee for allowing researchers to access the vaults on an all-you-can-search basis: this charge “entitled the searcher to paw his way through as many documents as he could.”⁷⁰ Fussner’s interpretation seems right, given the more specific wording of the Directions for Search: ten shillings is the fee “For search of any thing by Kalender, or without,” thereby also covering the masses of unprocessed and undescribed records.⁷¹ Powell adds, in wording that suggests that the right to rifle through the Tower was not necessarily unlimited, that the user might “search for the same thing so often and so long, as until you be reasonably well satisfied” (emphasis added), with the extra proviso that “some consideration” should “be had respectively first and last to the Clarkes paines.”⁷² The wording is ambiguous, admitting of the interpretation that either – contrary to Fussner’s understanding – the clerk carried out the search for the researcher, or that he accompanied him on his excursions into the vaults. Targeted records searches by repository staff themselves varied in cost depending on the type of record: for the older Exchequer records it was “eight shilling two pence,” and for Domesday Book “six shillings eight pence.”⁷³ Copies of older records could be extremely expensive, with, for example, four pence exacted for the copying of each individual line (not page) of Domesday’s lettering.⁷⁴ For uncatalogued Chancery documents, however, whether in current or archival storage, there seems to have been a discretionary sliding scale for the staff’s searches based on the level of difficulty in finding the documents. Powell explains that the exceptions to the fixed fee regime were “such things as are not in the Kalender, as the Bundles, called Breuia Regis, Foreigne Rolls, and the like; the search whereof is very vncertaine, and intricate: For in those searches, your Fee must answer the Clarkes extraordinarie paines.”⁷⁵ As this rule was also applicable to the Tower holdings, the ten-shilling flat fee to search the Tower records on a fairly generous basis may have been attractive in comparison to the discretionary fees. Powell provides further specific fee schedules for different classes of legal records, such as those of the King’s Bench or the records kept in the Office of the

70 71 72 73 74 75

Kate Peters, p. 162; Agarde/Powell, Repertorie, p. 11; Fussner, p. 81. Powell, p. 19. Powell, p. 19. Powell, p. 53; Riordan, “The State Papers and the Writing of History,” p. 71; Toomer, p. 54. Powell, p. 53; Toomer, p. 54. Powell, p. 15; Fussner, p. 80.

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King’s Remembrancer. Not only did these fees often differ from those mentioned above, apparently because it was often necessary for an attorney to carry out the search, they were extremely high: it cost two shillings just to open up the chest in the Remembrancer’s Office containing the Red Book (the key collection of precedents often shown symbolically in the Court of King’s Bench to assert the Exchequer’s procedural rights), and then three shillings and four pence “For the Attorney, who sheweth it, if hee goeth of purpose to Westminster to shew it,” though Powell adds encouragingly that if he did not have to present the book in court “it may bee that the Attorney will take lesse,” i. e. one shilling.⁷⁶ If an attorney was required to search the Treasury records during “Vacation time at Westminster,” he expected three shillings and four pence, as well as vaguely mentioned ‘other’ fees “for opening the doores.”⁷⁷ (The fee for simply opening the treasury door at the Court of Common Pleas was three shillings, while searching records of a court term that had been locked away cost another four shillings.) In the case of the records still kept in the Courts and the other legal offices, it does not appear that the researcher was allowed to undertake the search himself. Thus, while Peters remarks that the fees for consulting Tower records would have had the effect of restricting use to “professional attorneys and the prosperous middling sort keenest to pursue litigation,” her comment can a fortiori be applied to accessing many types of legal records in court storage.⁷⁸ The high cost of record searching was connected to the early modern system, previously described, of selling government offices for very high sums, long before the advent of the modern civil service in the nineteenth century.⁷⁹ The high fees for government services reflected this, as well as the expectation of Crown office holders to earn significantly above the average income.⁸⁰ Additionally, during the Jacobean Age the prices of Crown offices rose exponentially, and with them office fees.⁸¹ However, although Fussner claims that the record search fees “increased almost every year,” this appears to be contradicted by the stability in the fee regime

76 Powell, p. 36 – 37; “One of the most important books in the custody of the King’s Remembrancer, the Red Book of the Exchequer was carried into the court of King’s bench by the secondary in the King’s Remembrancer’s office in order to claim privilege of the Exchequer, by which suits against any of the Exchequer’s officers or accountants could be removed, as of right, to audit in the Exchequer.” The National Archives, “Catalogue Description: Red Book of the Exchequer.” 77 Powell, p. 37. 78 Kate Peters, p. 162. 79 Fussner, p. 86 – 87. 80 Fussner, p. 86 – 87. 81 Fussner, p. 86.

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between Powell’s Directions for Search (1622) and the Powell/Agarde Repertorie (1631). Nevertheless, Fussner is correct in his basic point that historians, who, unlike lawyers, could not pass search fees “on to their clients” and were interested in conducting far more wide-ranging searches than litigants, would have had “to pay out large sums or find influential patrons or friends among the record keepers.”⁸² Most consultants of the public records “had a practical and limited purpose, such as confirming title to property or lineage, and no doubt most of them used (and paid for) the expertise of the clerks in the relevant office.”⁸³ By contrast, the “cramped conditions” and “disorder and confusion” in which the records often languished meant that research for historical purposes “required time, patience and above all the knowledge that came from experience,” and Toomer suggests that probably only three historians – Prynne, Selden, and Dugdale – ever achieved this sort of mastery.⁸⁴ The problem of access for historical purposes first became apparent “in the late Tudor period” when modern English national histories, underpinned by documentary evidence, began to be written.⁸⁵ (It worsened over subsequent centuries so that English historical writing “suffered accordingly” before the sweeping bureaucratic reforms of the 1830s.⁸⁶ By the end of this period, in 1828, one researcher was required to pay £111 to have the enrolled court record of the mediaeval heraldic case Scope v Grosevenor copied, equalling approximately £7,500 in today’s money.⁸⁷) Despite these exorbitant fees, Fussner takes issue with Palgrave’s extremely bleak assessment of access for ‘literary’ (which included historical) purposes: that under the regulations prior to 1838, such use “was circumscribed; and, with very rare […] exceptions,” the records “were as sealed Books.”⁸⁸ Selden, indeed, provides a very sanguine picture of accessibility to the public records in the early seventeenth century, noting in the preface to Mare Clausum of the “Archive of the Tower of London” and Rolls Chapel records that “the Record-keepers (who have a special care to preserv them safely) do usually give admittance, at seasonable hours, to all that pleas to consult them.”⁸⁹ He also provided guidance on locating manuscripts there according to the “regnal year.”⁹⁰

82 83 84 85 86 87 88 89

Fussner, p. 80. Toomer, p. 55. Toomer, p. 54 – 55. Fussner, p. 41. Fussner, p. 87. Fussner, p. 87. Palgrave, quoted in Fussner, p. 87. Christianson, Discourse on History, p. 210.

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Fussner states that even if access worsened in the eighteenth and nineteenth centuries to the point that Palgrave’s statement was “generally true” until the founding of the Public Record Office in 1838, “it is a far from accurate description of seventeenth-century practice.”⁹¹ Instead, in the seventeenth century researchers could access the public records by paying the fees previously described, or by using their patronage networks, which could bring an (admittedly rare) general access warrant from the Privy Council, a gift of particular grace-and-favour which required unusual influence at the Royal court.⁹² Such general warrants often contained significant exclusions, such as all the Crown’s financial records past Edward VI, and – not surprisingly – the King’s Bench records of treason, for which additional permission from the Attorney-General or the Lord Chief Justice was required on top of the general warrant.⁹³ While most researchers deployed a combination of tactics, “By far the most common means of gaining access to particular record offices was by personal suit, either to the record keeper or to some powerful patron.”⁹⁴ In this regard, the Society of Antiquaries, the subject of a later chapter, may have been a vehicle for accessing collections supervised by Society members (it was certainly well served by the collection of member Sir Robert Cotton).⁹⁵ Fussner posits a limiting of access following the Restoration, and asserts that then a Privy Council warrant was “almost a necessity for scholars who found it necessary to consult many different classes of records,” but does not provide sources or examples to substantiate this claim.⁹⁶ Nevertheless, his statement is consistent with the tightened post-Restoration regime at the (private) State Paper Office, discussed in Part Three. Use cases for the public records can be pieced together from various sources. In 1589 an enthusiastic Welsh researcher, George Owen from Henllys, Pembrokeshire, had a somewhat discouraging experience while investigating “the lordship of Cemaes” (a local Pembrokeshire district).⁹⁷ Arthur Agarde showed him Domesday Book, which Owen described as “very ancient and hard to be read and whoso findeth any things must pay for the copy of every line iiij. d and it must be exemplified in the self same correctness as it is written in the book, which is strange

90 Christianson, Discourse on History, p. 210. 91 Fussner, p. 87– 88. 92 Fussner, p. 88. 93 Fussner, p. 90. 94 Fussner, p. 88 and 90. 95 Fussner, p. 88 and 90. 96 Fussner, p. 89. Perhaps he is thinking of the post-Restoration regime at the (private) State Paper Office, discussed in Part Three. 97 Hallam, “Nine Centuries,” p. 35.

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and hard for any man to read whether you find [anything] or not.”⁹⁸ This shows that the fee of four pence per line of lettering, which Powell listed in his later finding aids, was already in force during Agarde’s tenure – further evidence of the stability of the fee regime. Owen was clearly shocked at the expense, as well as frustrated at the Exchequer staff’s insistence on faithfully reproducing Domesday’s challenging lettering and then exemplifying (i. e. certifying) the extracts. Given that he seems to have been on a purely historical excursion, this at first seems perverse or a cynical money-making expedient on their part, but it may be that the Exchequer clerks did not want to run the risk of an improperly cross-checked Domesday copy one day turning up in court. This incident is a strong indication that the predominantly legal use of the records may have had the unintended consequence of tying up historical enquirers in red tape. On a more positive note, Owen was also shown “divers records particular for Wales […] and a great canvas bag full of records for South Wales” including bundles labelled “Pembroek, Cardigan, Carmarthen,” which, he was promised, he would be allowed to examine.⁹⁹ In the extract quoted by Hallam, Owen does not mention whether he was required to obtain official permission for his investigations. In 1627 Sir Edward Dering (previously found plundering the records collection of Dover Castle and sending an original copy of Magna Carta as a present to Sir Robert Cotton in 1630) was granted a general Privy Council warrant to view the public records without any fees.¹⁰⁰ At the time he was “ardently devoting himself” to the writing of a history of Kent, though Archaeologia Cantiana is uncertain whether it was for this purpose or for “some more enlarged view” that the Council gave him the warrant.¹⁰¹ During the Interregnum, in much the same way, the antiquarian Dodsworth was granted “free access to the records in the Tower” by the Council of State in 1652.¹⁰² Even without a Privy Council or (in the Interregnum) Council of State warrant, Tower record-keepers could unilaterally decide to be generous. In the mid-seventeenth century Thomas Fuller set about writing his history of Cambridge University (published in 1655). Fuller provides an interesting encomium on the importance of the records of the Tower of London […] which are the author of authors for English history, because

98 Quoted in Hallam, “Nine Centuries,” p. 35. 99 Hallam, “Nine Centuries,” p. 35. 100 Archaeologia Cantiana, Vol. I, p. 51. 101 Archaeologia Cantiana, Vol. I, p. 51. 102 Broadway, p. 50.

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1. They may be said to have lived in the time and place wherein all things are acted. 2. They are impartial; not osier-like, bowing to any interest; but standing like a firm pillar, to support the truth. 3. They are safely preserved: and long may they be in defiance of barbarous anarchy, which otherwise would make a bonfire, or new light, of those precious monuments.¹⁰³

(This remark seems aimed at Hugh Peters and his scandalous arguments for records arson, examined in Part 1). Following this eloquent defence of original research in the public records, Fuller celebrates William Ryley the elder (whose political involvement in the Civil War period is investigated later). Ryley had shown princely generosity in waiving the fees for transcribing, comparing, and attesting a Royal letter that Fuller had found in the Tower repository, which demonstrated that the thirteenth-century fatal riots between scholars and townspeople in Cambridge had motivated the founding of the short-lived University of Northampton to accommodate refugee Cambridge academics.¹⁰⁴ This primary source allowed Fuller to set the previous narrative straight. An antiquary called Robert Hare had taken it upon himself to copy the ancient records pertaining to both Oxford and Cambridge and bestow a set of the rival’s papers upon each of them.¹⁰⁵ In his transcription of this Royal letter, ‘Oxford’ had replaced ‘Cambridge’ as the location for the riots, which the eagle-eyed Oxford archiveskeeper Brian Twyne had detected as a mistake – either Hare had made an inaccurate copy, which Fuller found unlikely, or “some Cambridge man” had committed a forgery in the Oxford archives.¹⁰⁶ (Fuller inveighs against the careless Oxford archives-keepers, adding smugly, “I presume our muniments at Cambridge are more safely preserved.”)¹⁰⁷ Fuller pours scorn on those historical researchers who would rely on copies rather than peruse the originals in the Tower: “He that may with as much ease go to the fountain, and yet will drink of the dirty river, deserveth no pity, if choked […] with the mud thereof.”¹⁰⁸ This is a particularly colourful example of the traps laid for the unwary by records forgery in this era, and it does not seem to have been the only such instance motivated by the rivalry between the two ancient universities. In a Parliamentary discussion of their respective antiquity on the 31st of May 1628, Selden related a similar episode in which a Cambridge graduate bribed the Parliamentary clerk 103 Fuller, The History of the University of Cambridge from the Conquest to the Year 1634, p. 36. 104 Fuller, p. 36; Author unknown, “Northampton: The ancient English university killed by a king.” 105 Fuller, p. 35. 106 Fuller, p. 35. 107 Fuller, p. 35. 108 Fuller, p. 35 – 36. The typical Renaissance ‘fountains’ imagery was of course also applied to Continental archives in the early modern era: Friedrich, Die Geburt des Archivs, p. 235.

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to list Cambridge before Oxford in a draft bill (“I have heard that a Cambridge man gave 5s. when he saw Oxford first in the Clerk’s book to alter it, and set Cambridge before it”) to make it appear that Cambridge took precedence, due to greater age – though this was ultimately unsuccessful as, after searching records and precedents, the House voted Oxford the older of the two.¹⁰⁹ (In 1621, Edward Coke had been reproved in Parliament for similarly listing Cambridge first.)¹¹⁰ The space that Fuller devotes to Ryley’s generous deed suggests that such magnanimity was rare. The amount of money that Fuller thereby saved is evoked by his insistence on commending Ryley “to the reader’s thankful notice, because otherwise I must have charged the cost on his account, raising the rate of my book, to make myself a saver thereby.”¹¹¹ The fact that Fuller would have had to significantly increase the price of his book to recoup the expense suggests the obstacles faced by other historians in accessing records (again, Ryley’s apparent insistence on exemplifying this letter suggests that even for mere historical purposes, it was not possible to obtain non-authorised copies of records). Palgrave implies that foreigners had a particularly difficult time accessing the Tower records, citing the 1674 example of Maturin Esnault of the French Order of St. Lazarus of Jerusalem, who was only allowed to “search the records […] in the presence of a sworn officer”; even more restrictively, the authorisation of the Lord Keeper of the Great Seal was required to provide him with copies.¹¹² This remark can be so interpreted that, by implication, under the all-you-can-search rule it was customary to let English researchers loose in the storage rooms unsupervised. English official historians, at any rate, certainly fared somewhat better: for his history of the Order of the Garter, Elias Ashmole obtained “a general order under the sign manual.”¹¹³ Despite the particular restrictions on diplomatic records, Thomas Rymer, responsible for the official history project Foedera, “obtained a very special writ under the Great Seal […] addressed to the Lords Commissioners of the Treasury and to the Chamberlains of the Exchequer,” which required them “to deliver out to him” all the diplomatic papers (including treaties) that he should request.¹¹⁴

109 Commons Debates 1628, Vol. IV, p. 41. The relative claims of the two ancient universities generated considerable heat in this period, inspiring, for example, Brian Twyne’s 1608 Antiquitatis Academiae Oxoniensis Apologia (Broadway, p. 37). 110 Cal. State Papers Dom. (1619 – 23), p. 252. 111 Fuller, p. 36. 112 Palgrave, Antient Kalendars, Vol. I, p. xxv-xxvi. 113 Wernham, p. 12; Palgrave, Antient Kalendars, Vol. I, p. xxv-xxvi. 114 Palgrave, Antient Kalendars, Vol. I, p. xxvi.

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The access regime of Oxford’s Bodleian Library (founded in 1602), with its large manuscript collection, provides a useful contrast.¹¹⁵ No distinction was made between folios of unique manuscripts and printed books, all of which appear to have been chained to the shelves but could be freely used by registered readers without supervision, or additional permission from the staff for the use of manuscripts – so that it would no doubt have been easy to change ‘Cambridge’ to ‘Oxford’ in that letter.¹¹⁶ (The fearsome librarian Thomas James attempted to separate manuscripts from books and introduce an extra permission requirement for the use of the manuscripts, but was overruled.)¹¹⁷ The register of readers, as analysed by Cappon, suggests that the access policy was very generous.¹¹⁸ (Indeed, in the Jacobean State Papers the Bodleian is referred to as “the public library at Oxford.”)¹¹⁹ All graduates with a Bachelor of Arts “of two years’ standing” were allowed to use the collection, together with all other, more recent B.A.s provided that “they come thither in their Habits and Hoods, and there demean themselves with Reverence.”¹²⁰ As undergraduates were significantly younger in the seventeenth century, and some B.A.s were still in their teenage years, there were probably good reasons for this stipulation.¹²¹ Not yet degreed students were not allowed to use the Bodleian and were reliant on their own college’s collection.¹²² The Library also offered discretionary access to the outside reader “for the Furtherance of his Study in whatever Science, although he may be no Contributor.”¹²³ Finally, there were two additional categories of reader who were allowed to use the collection: “the visitor (peregrinus), whose stay was usually brief, and […] the foreigner (extraneus) who was likely to be a daily user for a longer period.”¹²⁴ According to Cappon, the collection had readers from many Western European countries.¹²⁵ The Bodleian’s liberal access regime contrasted with that of the individual “college libraries,” which “were jealously guarded.”¹²⁶ As for local records collections, the State Papers contain a glimpse of the way one access request was handled. In 1617 Sir John Dackombe, Chancellor of the

115 116 117 118 119 120 121 122 123 124 125 126

Cappon, p. 168. Cappon, p. 168. Cappon, p. 168. Cappon, p. 168. Cal. State Papers Dom. (1611 – 18), p. 28. Cappon, p. 168. O’Day, “Universities and Professions in the Early Modern Period,” p. 82 – 83. Cappon, p. 168. Cappon, p. 168. Cappon, p. 168. Cappon, p. 168. Broadway, p. 61.

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Duchy of Lancaster, sent an order to Thomas Pickering, “Keeper of the Records at Knaresborough,” to allow James Button or another deputy of the Bishop of Worcester “to search and copy such records as relate to the Nab, near Swindon, co. York.”¹²⁷ This suggests a restrictive grace-and-favour approach, at least in this particular repository. Broadway provides a detailed examination of how local historians were in general forced to use their social status and networks in order to obtain access to their primary sources – access often policed by women, especially in the case of aristocratic family records.¹²⁸ However, obtaining access to ecclesiastical records specifically “was comparatively straightforward.”¹²⁹

127 Ferris and Thrush, “Dackombe, John”; Cal. State Papers Dom. (1611 – 18), p. 502. 128 Broadway, p. 83 – 84. See further her entire chapter “The development of regional networks,” p. 80 – 109. 129 Broadway, p. 71.

12 The foundation of the seventeenth century: History, Reformation and the ‘Ancient Church’ The wider intellectual background is important for contextualising records access and use in the specific constitutional controversies of the seventeenth century. The Renaissance and its “new consciousness of the State as an entity” provided “strong political as well as social and intellectual motives” for the study of history across Europe, while Soll describes the studies of law and of history (with the rediscovery of ancient and classical sources) as the foundations of humanist theories of politics – indeed, Erasmus had famously argued that monarchs should “become scholars,” advice which James I attempted to follow.¹ (Some Renaissance monarchs even took an active role in making archival materials available to researchers – Elizabethan England’s nemesis, Philip II of Spain, undertook a reorganisation of the archive at Simancas partly to facilitate historians’ access, and administered the permissions regime himself, albeit restrictively.)² The specific context of the English Reformation provided a forcing-ground for the sorts of skills that would later be transferred to the constitutional arguments between King and Parliament. The last decades of Elizabeth’s reign and the Jacobean age witnessed “three generations of remarkable intellectuals” (antiquaries and other writers, book and manuscript collectors) who exchanged information amongst themselves in what John Selden referred to as a “Common-wealth of learning.”³ The twin forces of Reformation and the struggle between Parliament and the Crown propelled primary source research, deployed both to support particular positions in these controversies, and in the more general interest of the increase of historical knowledge.⁴ The prestige enjoyed by the unique, “self-referential” common law tradition and its unusual educational environment in the Inns of Court helped to foster “the rise of English historical antiquarianism, with its affinities to humanism”; it was thereby associated with the London common-law legal sector and not with the universities.⁵ It is important to emphasise that English antiquarian research did not suddenly become politically charged in the seventeenth century. In fact, the government itself had fostered historical investigations of ancient records to support its Reformation project. While this subject has been extensively covered by many scholars, including Fussner, Popper, and Grafton, a brief overview helps to contextualise the 1 2 3 4 5

Styles, “Politics and Historical Research in the Early Seventeenth Century,” p. 49; Soll, p. 51 – 52. Gomez, “The New Culture of Archives in Early Modern Spain,” p. 557– 558. Cappon, p. 145. Cappon, p. 145. Haivry, p. 133 – 134.

https://doi.org/10.1515/9783110791464-014

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use of ‘ancient records’ in the standoff between monarch and Parliament. In both cases, a similar appeal was made to a supposedly uncorrupted ‘ancient’ English version of the current, decayed order: the Ancient English Church free of Romish influence, the Ancient Constitution unchanged (or insignificantly changed) by the Norman Conquest. As Levy keenly observes, in the sixteenth century “the theory of continuity became a form of patriotism.”⁶ Not only was the marked increase in antiquarian studies in this era concerned with re-founding the Church on what was thought to be its original lines, but it also took place against the general background of a new self-consciousness accompanying the rise of the English nation state (eloquently expressed in Shakespeare’s plays): Tudor statesmen, clerics, and scholars searched for precedents which would allow them to establish this “new world on newly defined foundations.”⁷ These foundations, however, had to be venerable, and there was a general obsessive hunt “for respectable antecedents” across “all branches of life and thought,” with a revolutionary new rigour contrasted with the sporadic nature of mediaeval antiquarian enquiry.⁸ The sixteenth century thus laid the groundwork for the explosion of precedent-focussed research in the seventeenth, with the key difference that in this later period, such research would be turned against the Crown. In both the English Reformation and the English Revolution, questions of sovereignty were at stake. Despite the tawdry beginnings of the Reformation in Henry VIII’s dynastic dilemmas, it ultimately rejected the Papacy’s claim to authority (whether spiritual or temporal) over the English Crown and nation, while the English Revolution was precipitated by concerns for the sovereignty of Parliament as against the ‘Divine Right’ of the Stuart Kings. A brief examination of historical research in the service of the Reformation is useful. The focal period was significant: the aim was to investigate “the vitality and autonomy of Saxon Christianity, before the rise of the papal imperium, and, in particular, before the pope sent Augustine to ‘convert’ the English.”⁹ While Henry VIII’s Dissolution of the Monasteries had the effect of scattering historical records, as previously noted, it soon became clear that the Henrician project would need to invoke some sort of traditional legitimacy in order to succeed, and for this the documents currently being dispersed had to be recovered.¹⁰ The nationwide salvage effort began under the auspices of Royal chaplain John Leland in 1533, first alone and then, after 1536, with John Bale, the former Carmelite monk turned Prot6 Levy, p. 138. 7 Piggott, p. 98; also quoted in Yax, p. 57. 8 Piggott, p. 98. 9 Goldie, p. 11. 10 Popper, “From Abbey to Archive,” p. 252; see also Sharpe, Sir Robert Cotton, p. 8.

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estant reformer encountered in a previous section.¹¹ In the middle of the century Sir John Prise (or Price) – a Welsh notary and MP for Breconshire involved in the government’s inspections of the monasteries preparatory to their dissolution – also became involved in rescuing documents.¹² These efforts did not occur in isolation, but as part of a general European “information arms race” between proponents and opponents of Reformation.¹³ One of the most famous investigations was that of the Lutheran Matthias Flacius Illyricus, whose “archival research team made heavily documented attacks on church rights with its massive anti-Catholic historical work The Magdeburg Centuries (1559 – 74).”¹⁴ The English, anti-Catholic Foxe’s Booke of Martyrs, as republished in 1563 with the title Acts and Monuments, “was quite consonant in purpose, and in lack of objectivity, to the work of Flacius Illyricus.”¹⁵ Indeed, Bale likely participated in Flacius’ grand project, as, later, did Matthew Parker himself, while Parker in turn received instruction from Flacius (who showed an astonishing awareness of English records on church history) on text-collecting and cataloguing.¹⁶ Leland and Bale made no attempt at neutral collecting. Popper notes amusingly that they viewed all the material that they obtained “with suspicion” – although it occasionally revealed the previous, uncorrupted English Church, some records (the “charters, writs, and bulls”) were “the very instruments by which Rome had established control throughout England.”¹⁷ Not only that, Bale believed that English monastic record-keepers had deliberately neglected and prevented access to the ancient records with an eye to distorting the historical record: “Noble Antyquytees have not bene ere thys tyme reveled, but tyed up in cheanes, and hydden undre dust in the monkes and fryres libraryes. The greate want of them hath caused our latter Chronicles […] so depely to erre, as they have done in many poyntes.”¹⁸ Only a great deal of devoted work would succeed in uncovering the original sources.¹⁹ Bale’s project suffered a major setback with the advent of the

11 Cappon, p. 150; Toomer, p. 44; Popper, p. 252; Grafton, p. 22. 12 Toomer, p. 44; Edwards, “Sir John Price.” 13 Soll, p. 21. 14 Soll, p. 21; see also Grafton, p. 22. 15 Fussner, p. 22. Foxe – like others involved in the debates on the history of the English Church – conducted research in the Tower’s parliament rolls for anti-papal material to integrate into his 1570 edition, which also drew heavily on the research materials assembled by Archbishop Matthew Parker and his colleagues, especially their Anglo-Saxon sources. Gajda, p. 147– 149, p. 162; Archer, p. 244. 16 Popper, “From Abbey to Archive,” p. 253 – 254. 17 Popper, “From Abbey to Archive,” p. 252. 18 Bale, quoted in Popper, “From Abbey to Archive,” p. 252. 19 Bale, quoted in Popper, “From Abbey to Archive,” p. 252.

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Catholic Queen (Bloody) Mary in 1553, intent on violent Counter-Reformation: Bale, now an Anglican bishop, abandoned the collection of ancient documents that he had so carefully scraped together, and took refuge on the Continent until the accession of Elizabeth I five years later.²⁰ As previously noted, Elizabeth devoted great official effort to stemming the dispersal of monastic documents. The salvage programme picked up new momentum following her 1559 installation of Matthew Parker as Archbishop of Canterbury, who drew on Bale’s expertise and deployed an energetic and capable team, one of whom claimed that he had hunted down 6,700 volumes within the space of four years.²¹ Grafton provides an unforgettable picture of Lambeth Palace and its library buzzing “with scholarly activity,” volumes piled high on the floors.²² Parker had two main, urgent objectives: the establishment of an English Protestant church which “must show as much fidelity as possible to the teachings and practices of Jesus, Paul and the Fathers, and the early traditions of English Christianity, while not rejecting contemporary practices unnecessarily,” and the production of official Church histories “which would provide charters for its independent existence and its distinctive practices.”²³ This was a project that clearly drew on both religious manuscripts and historical records. Parker was keenly aware of competing collectors, and he enlisted his network of contacts to collect and copy texts across the European Continent as well as the country.²⁴ On the domestic front, he was armed with a 1568 commission from the Privy Council directing the Queen’s subjects in possession of monastic records to give his agents access.²⁵ This letter cited both legal needs (“so as […] resort may be made for the testimony that may be found in them”) and national heritage concerns intersecting with related sovereignty propaganda (“by conference of them, the antiquity of the state of these countries may be restored to the knowledge of the world”).²⁶ Parker quickly saw the usefulness of the writings of early English churchmen such as Aelfric “for the more secure establishing of the Ecclesia Anglicana over which he had been appointed by Elizabeth to rule,” and in the process of gathering evidential weight for the national church, he laid the foundation for what is now the famous Parker Library of rescued Anglo-Saxon manuscripts held at Corpus

20 21 22 23 24 25 26

Popper, “From Abbey to Archive,” p. 252. Fussner, p. 23 – 24; Grafton, p. 19, 21 – 22; Sharpe, Sir Robert Cotton, p. 8. Grafton, p. 19, 21. Grafton, p. 21 – 22; see also Broadway, p. 26. Grafton, p. 22; Fussner, p. 23; Popper, “From Abbey to Archive,” p. 255. Fussner, p. 23 – 24. Fussner, p. 23 – 24.

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Christi, Cambridge.²⁷ (Selden later used the Parker collection at the college.)²⁸ The collection’s website indicates that it contains a quarter of all surviving texts in Anglo-Saxon, but hardly any poetic works: unsurprisingly, most texts are of a religious or an historical narrative nature (indeed, one of Parker’s major rediscoveries was Version A of the Anglo-Saxon Chronicle).²⁹ Parker’s was thus a selective enterprise, collecting texts that could be useful in an active, contemporary propaganda programme. Measured by its own highly political purposes – to create an arsenal for the English Reformation that would “illuminate papal tyranny or the prior independence of the Anglican Church” – it was very successful.³⁰ By the end, there was considerable official knowledge about the ancient English Church “and vast and specific differences could be pointed out which marked it off from the sixteenth-century church of Rome,” allowing a direct (though, obviously, anachronistic) comparison which “redounded to the credit of Anglicanism.”³¹ This primary source-based narrative of an historically distinct Saxon Christianity was one facet of Parker’s forging of the national church in the shape of a unique Elizabethan Anglican settlement ultimately distinct from both Protestantism and Catholicism: his doctrinal contributions included the still-current Thirty-Nine Articles of Anglican belief.³² This doctrinal differentiation from the contemporary Church of Rome and Parker’s historical project were intimately intertwined. His official editions of ancient manuscripts included “prefaces and marginalia adumbrating how the source documented a pure Anglican Church or betrayed papal contagion.”³³ (As this book will later demonstrate, William Prynne would edit the Parliamentary Writs in exactly this partisan fashion to support his interpretation of the Ancient Constitution, and he would also take the device of polemical marginalia to an extreme.) Parker’s publication of biased records editions was a venerable tactic in the European church history context, “used by ecclesiastical historians dating back to Eusebius to provide documentation to support their polemical claims.”³⁴ A significant part of the impetus for the collection programme came from the Queen herself. She soon realised the propaganda potential of ancient documents

27 Wormald and Wright, quoted in Fussner, p. 24; Corpus Christi College, “Parker Library: A National Heritage Treasure.” 28 Toomer, p. 30 – 31, 44. 29 Corpus Christi College, “Parker Library: A National Heritage Treasure.” 30 Popper, “From Abbey to Archive,” p. 254. 31 Levy, p. 137. 32 Encyclopaedia Britannica, “Matthew Parker.” 33 Popper, “From Abbey to Archive,” p. 255. 34 Riordan, “Materials for History?”, p. 51; see also Grafton, p. 36 – 37.

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for her official State and Church policies, in an age in which historical research, politics, and religion would remain intertwined until both Church and State had been secured against Catholic challenges.³⁵ William Cecil, the Queen’s main advisor, was eager to obtain primary sources that would both fuel developing English nationalism and provide a sound basis for “the closely-reasoned state papers which were expedient to strengthen Elizabeth’s position against hostile controversialists here and abroad.”³⁶ The Queen was also aware of the wider European dimension of the English Reformation, welcoming Flacius’ emissaries in 1558 (shortly after her accession), and giving Parker the task of assisting them in finding English texts for the Magdeburg Centuries. ³⁷ This dawning awareness of the uses of ancient documents had an important effect on Elizabethan administration, and Parker’s project would prove “instrumental in collecting and centralizing England’s documentary record.”³⁸ Parker’s contribution should not be overstated, however; Fussner suggests that it was ultimately Sir Robert Cotton who was largely responsible for preserving dispersed monastic manuscripts, while Harding notes that Cotton acquired about 13 % of the chartularies alone.³⁹ (It should also be noted that Parker’s confusion of the Annals of St Neot with Asser’s Life of Alfred created endless muddle in later centuries following the destruction of the Life in the Cotton library fire.)⁴⁰ Parker’s historical research methods had a profound impact on Elizabethan public administration. The Queen’s servants, including Principal Secretary Sir Francis Walsingham, adapted these methods “within the operations of their offices”: policy, both religious and secular, was increasingly formulated on the basis of document collections, while Crown servants also made written records of their actions “with newfound intensity,” cataloguing and saving even “rough copies or informal notes.”⁴¹ Royal advisors created and used “meticulous archives that encompassed their own paperwork in addition to historical documents.”⁴² Parker’s example had transformed the very approach to administration, so that his method was now seen as a key element of effective governance, “a mechanism of ensuring

35 Wormald and Wright, quoted in Fussner, p. 24. 36 Wormald and Wright, quoted in Fussner, p. 24. 37 Popper, “From Abbey to Archive,” p. 254. 38 Popper, “From Abbey to Archive,” p. 254. 39 Fussner, p. 149; Vanessa Harding, p. 489. 40 Galbraith, contribution to “The Value of Sixteenth- and Seventeenth-Century Scholarship to Modern Historical Research,” p. 118 – 119. 41 Popper, “From Abbey to Archive,” p. 256. 42 Popper, “From Abbey to Archive,” p. 258.

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oversight […] and facilitating the efficient production of policy.”⁴³ A particularly spectacular use of records research for statecraft was Elizabeth’s commission to Parker to apply his historical method in investigating the English Crown’s claim to the Scottish throne, following the flight of Mary Stuart in 1568.⁴⁴ Regardless of the controversy over the State Paper Office’s date of establishment, Popper makes the valid points that it emerged against the background of the Reformation-era focus on recovering and preserving records, and that its incarnation under Thomas Wilson was “a culmination, rather than a beginning, of the efforts of a small group of men to strengthen the archival practices of the English political elite.”⁴⁵ Furthermore, the impetus for William Lambarde’s project of cataloguing the records in the Tower, discussed in the previous section, may have originated in Lambarde’s time as “a member of Parker’s circle.”⁴⁶ There were parallels between Parker’s identification of “a continuous English church going back to the time of the Anglo-Saxons” and Lambarde’s presentation of an English legal system traceable to the same period, in his anthology of ancient Saxon laws Archaionomia. ⁴⁷ Levy suggests that the two men may have shared the same fundamental purpose, the defence “of a native English tradition against the inroads of foreign theory.”⁴⁸ Indeed, Levy notes a constant social intercourse between the Parker and Lambarde scholarly circles, and suggests that Lambarde knew that his own studies of the Saxon period reinforced Parker’s.⁴⁹ However, unlike Parker – whom Sharpe describes as a polemicist who disregarded careful scholarly practice to the extent of deliberately forging missing sections of primary sources – Lambarde has been admired for the carefully neutral, balanced, and scholarly stance that he took on the political issues of his day, “a good consensus man” who did not share the intensity of the “political partisans” who later deployed his work in the constitutional battle with the Stuart Crown.⁵⁰ The Puritan Robert Beale, one of Walsingham’s employees, continued Parker’s project after his death in 1575.⁵¹ He continued to copy texts across the country and also used the Tower records to compile collections of documents related not only to

43 44 45 46 47 48 49 50 51

Popper, “From Abbey to Archive,” p. 256. Popper, “From Abbey to Archive,” p. 255. Popper, “From Abbey to Archive,” p. 251. Popper, “From Abbey to Archive,” p. 259; Gajda and Cavill, p. 38. Levy, p. 137. Levy, p. 137. Levy, p. 141. Prest, p. 466; Sharpe, Sir Robert Cotton 1586 – 1631, p. 8 – 9. Encyclopaedia Britannica, “Matthew Parker”; Popper, “From Abbey to Archive,” p. 256 – 257.

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the Church, but also to domestic and foreign temporal matters (such as mediaeval treaties with Continental powers and information on the French kings and the Hanseatic League).⁵² Beale’s collection contained extracts documenting “the steady increase in the medieval papacy’s tithes and rents,” which for Beale, as a Puritan, “constituted evidence of rapacious papal taxation.”⁵³ In the process of carrying out such researches, the Reformation interest thus also heightened sensitivity to the issue of non-consensual revenue raising. Parker’s project echoed far outside of London, its collecting programme extending the Crown’s “textual purview” across the Kingdom.⁵⁴ In the first part of the seventeenth century, a similar pro-Reformation imperative could be discerned in Oxford; Calvinist Thomas James, the first librarian of the Bodleian, has been politely ignored by most official institutional histories due to an embarrassingly rabid anti-Papist fanaticism which drove him to pursue Jesuits through the Oxfordshire countryside.⁵⁵ He spent most of his academic career “harnessing textual resources in pursuit of theological and ecclesiological justification of English Protestantism,” beginning a massive project in 1610 to collect patristic writings proving the English Church’s derivation from a Saxon forebear that “had conformed to the primitive church as described in the writings of the Fathers and the early councils,” and to ultimately produce a complete, untainted edition of patristic writings – a project just as programmatic as Parker’s.⁵⁶ James envisioned the Bodleian as an arsenal of Protestant scholarship and fortress against Papists, and became an expert on contemporary Catholic research, exploiting it for his own purposes.⁵⁷ (Walsham notes in general of the post-Reformation collections of monastic manuscripts that these, filtered through “an empowering Protestant narrative […] and reformed intolerance of ‘popish superstition,’” have mediated to us a political, distorted view of English history, and “imprison our enquiries within interpretative straitjackets.”)⁵⁸ The family fanatical streak continued with Richard James, Thomas’s nephew and Sir Robert Cotton’s assistant, who exploited Cotton’s collection in the service of Protestant polemics (and also circulated his own celebratory verses on the occasion of the Stuart favourite Villiers’ assassination in 1628, which, Tite believes, exacerbated Cotton’s problems with the Crown in 1629).⁵⁹

52 53 54 55 56 57 58 59

Popper, “From Abbey to Archive,” p. 256 – 257. Popper, “From Abbey to Archive,” p. 257. Popper, “From Abbey to Archive,” p. 256. Nelles, “The Uses of Orthodoxy and Jacobean Erudition,” p. 21. Nelles, p. 22, 24. Nelles, p. 22. Walsham, “The Social History of the Archive,” p. 30 – 31. Tite, The Panizzi Lectures, p. 57, 59.

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Parker’s technique, initially focussed on church history, was ripe for exploitation in the seventeenth century “not only by church historians, but also by legal and constitutional historians as a polemical weapon.”⁶⁰ The career of Sir Edward Coke, the ‘father of the common law’ and the great defender of the Ancient Constitution in the Stuart age, in fact bridges the Reformation and Parliamentary causes: in this earlier period he was active in defending the established English Church. A passage from a letter by Coke to Sir Robert Cecil in 1605 shows how he pioneered legal-historical research in constructing arguments from continuity. Here he advocates publishing “(without any inferences or bombasting) the very records of the ancient laws and statutes of England, to the observation whereof the Kings of England have always been sworn; whereby it shall appear what jurisdiction ecclesiastical by the ancient laws of England appertain to the crown, and that the laws made by King Henry 8th or since, are for the most part declarative of the old and are not introductive of the new.”⁶¹ (Emphasis added.) Further, Coke had in mind an accessible, demotic publication of these original sources, similar to the protodemocratic intent behind Prynnes’ later Exact Abridgement. He informed King James I “how necessary it were that somewhat were published plainly and sincerely […] not […] for the meridian of Westminster Hall alone, but […] for all England.”⁶² Fussner notes some important points about this letter: the typical Cokean emphasis “on custom and the immemorial,” and the contemporary reliance on precedents, in the form of ancient records, as the foundations of argument.⁶³ Gajda shows how the parliamentary controversies of the seventeenth century were a by-product of the Reformation itself: Catholic attacks on Anglicanism as only a ‘Parliament faith’ (i. e. established by statute under Henry VIII) without a venerable pedigree spurred the development of the Elizabethan constitutional doctrine of the ancient Crown-in-Parliament (constructed using primary sources including the Tower records), in which Parliament was described as establishing – and at various later points defending against the Papacy – the Ancient English Church.⁶⁴ She thereby demonstrates that Elizabethan-era researches on the Ancient Church and the Ancient Parliament were of necessity intimately intertwined. Further, such historical debates and researches were key to the connected controversies and anxieties over ensuring a Protestant succession in the later reign of Elizabeth I, discussed in anti-Mary Stuart texts which invoked “English history […] from the Saxon to the late fifteenth century […] as part of a legal, and constitu60 61 62 63 64

Riordan, “Materials for History?”, p. 51 – 52. Quoted in Fussner, p. 84. Fussner, p. 84. Fussner, p. 84. Gajda, “The Elizabethan Church and the antiquity of Parliament,” p. 136 – 171.

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tional, continuum,” and in which history on occasion “operated […] as a species of legal precedent.”⁶⁵ These historical investigations generally revealed themselves to be more useful to “advocates of the antiquity, frequency and efficacy of parliamentary interventions in succession disputes, than to upholders of strict lineal inheritance” – a conclusion which threatened to shift the power dynamic between Crown and Parliament.⁶⁶ The Reformation’s use of scholarly research to bolster the claims of the ancient English Church also inadvertently cultivated habits of mind that could later prove disadvantageous to an overweening monarch. For example, the quasi-historical Foxe’s Booke of Martyrs, “which achieved canonical status in Elizabethan England, was a work that celebrated heroic acts of resistance against the state,” a theme which Zaller characterises as “double-edged,” even if necessary at the time to prepare the way for the national Church.⁶⁷ Furthermore, there was the “subtler problem,” engendered by the Reformation as a whole and in particular by the vagaries of religious policy in the Tudor era, of a rise in scepticism.⁶⁸ This new questioning attitude, along with textual excavation, probably contributed to the ultimate shattering of the Trojan and Arthurian myths in British history, which died between 1600 and 1700.⁶⁹ This vanishing of the mythical element “allowed for a vigorous seventeenth-century archaeological and ethnographic approach to the Gothic past […] which ran alongside, and occasionally intersected with, legal-constitutional discourse.”⁷⁰ Leland, Bale, Parker, and John Foxe – who popularised the formers’ narratives in his lurid catalogue of martyrs – contributed to the specifically Anglo-Saxonist focus of later Ancient Constitutionalism.⁷¹ In encouraging antiquarian investigation of the ancient English Church (incidentally fostering a growing sense of English singularity and patriotism which would not smooth the Scottish Stuarts’ path to acceptance), the Crown had unleashed a powerful force that would ultimately help to frustrate the new monarchs’ absolutist claims. Indeed, the Reformation served to reinforce the widespread seventeenthcentury belief among the English – from the yeoman class upwards – “in an ancient constitution that guaranteed their possessions and liberties” and was “identified […] with the Common law”: the Reformation’s side-lining of Roman Cathol-

65 Lake, p 383 – 384; Kewes, “Parliament and the principle of elective succession in Elizabethan England,” p. 188. 66 Kewes, p. 186. 67 Zaller, The Discourse of Legitimacy in Early Modern England, p. 8. 68 Zaller, p. 8. 69 Goldie, p. 11. 70 Goldie, p. 11. 71 Goldie, p. 11.

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icism for an established Church of England was seen as similar to the eschewing of Roman legal tradition for native English law.⁷²

72 Haivry, p. 139.

13 History-writing, treason, and censorship It was not that the Crown was unaware of the power and danger of historical writing: “History, like the law, the Bible, the classics, was a validating text.”¹ The notion of history as a source of moral instruction was extremely ancient, the Venerable Bede opining in his dedicatory preface to King Ceolwulf that “if history records good things of good men, the thoughtful hearer is encouraged to imitate what is good; or if it records evil of wicked men, the devout, religious listener or reader is encouraged to avoid all that is sinful and perverse and to follow what he knows to be good and pleasing to God.”² At the universities, the focus of historical instruction was to provide “a guide to action, morality and the welfare of the state.”³ Such value judgments could jeopardise the well-being of the historian, if a similarity was detected between the current monarch and the previous bad monarchs depicted. As illustrated by Elizabeth I’s conversation with Lambarde about Essex’s planned revival of Shakespeare’s play Richard II, monarchs were alert to this sort of criticism, even if hidden in an implicit comparison. Apparently innocuous histories could in fact conceal a serious threat to the Crown’s authority, particularly because what Sir Francis Bacon called “ruminated history” was often the vehicle for present policy recommendations.⁴ It was not uncommon, even in popular discourse, for sixteenth-century polemics to be disguised as history, a device continued in the seventeenth-century works of the proto-democratic Levellers and the Puritan activist William Prynne, among many others.⁵ The Revolutionary interest, including the Independents and Cromwell, was aware of the past’s relevance to the fractured and discontented present, while the discussions of the nature of government and the franchise in the Putney and Whitehall Debates (1647– 1648) circled around historical ideas as well as arguments about natural rights and Divine grace.⁶ The division between the Middle Ages and the early modern era, which seems obvious in retrospect, was not at all clear to English early moderns themselves: there had been no obvious political caesura to demarcate the transition, and many aspects of contemporary life (such as property law) were heavily influenced by the mediaeval legacy.⁷ Early modern constitutional theorists were thus

1 2 3 4 5 6 7

Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 14. Bede, p. 3. Broadway, p. 58. Berkowitz, John Selden’s Formative Years, p. 33. Fussner, p. 24. Fussner, p. 24. Styles, p. 57; Broadway, p. 1 – 2.

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perfectly sincere, not motivated by “mere antiquarianism […] or perverse legal pedantry,” in their belief that Magna Carta should form the framework for the Petition of Right and that the Saxon Witenagemot was the Long Parliament’s Ur-ancestor.⁸ In this regard and despite their special attachment to precedent, English scholars were (in general) similar in their blithe anachronism to other European historians such as Machiavelli, who searched for contemporary political guidance in the past, had little appreciation “of change and development,” and “never saw that the conditions of ancient Rome and the Florence of his own day might not be exactly analogous.”⁹ The political risks posed by history must have been clear at the beginning of the Stuart period: it was well known that “Magna Carta itself […] was based on the appeal to the past,” evoking ancient customary law and the statutes of the AngloSaxon King Edward the Confessor to defeat the Angevin departure from tradition.¹⁰ The barons of King John’s time seem to have exploited precedent in exactly the same way as the Parliamentary contingent in the seventeenth century and, two hundred years later, the Whig reformers.¹¹ The Stuart monarchs also based their own policies on historical research, dredging up long-neglected prerogatives upon which to base unpopular policies such as ship-money.¹² The Elizabethan Fulke Greville, writing in the Stuart era, contrasted the Stuarts in this respect unfavourably with the late Queen, who did not stoop to “any curious search after Evidence to enlarge her Prerogative Royall,” and thus “teach her subjects in Parliament, by the like self-affections, to make as curious inquisition among their Records, to colour any encroaching upon the sacred Circles of Monarchy.”¹³ A chicken-and-egg problem is evident here as to who researched first, but Greville’s contempt for unglamorous and un-mysterious rooting about in records is clear (expressed in the contemporary negative connotation of the word ‘curious’), as is his value judgement on the Stuarts, foolishly attempting to expand their prerogative powers in contrast to their wise predecessor. Another aspect of politicised history was the Tacitean influence.¹⁴ Tacitus’s contribution to the notion of the Ancient Constitution is examined later, but his methodological legacy to historians is also important to note. His famous claim to dispassionately tell historical truth Sine īrā et studiō (“without anger and parti-

8 Styles, p. 57. 9 Sharpe, Sir Robert Cotton, p. 3. 10 Styles, p. 53. 11 Styles, p. 53. 12 Styles, p. 70. 13 Quoted by Styles, p. 51. 14 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 29.

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ality”) in the introduction to his Annals of Imperial Rome (part of a passage which held that Roman despotism had always been a short-lived phenomenon) inspired subsequent political historians, and will later be found in this book surfacing unexpectedly in correspondence between Thomas Wilson and James I. Tacitus’s increasing popularity in England beginning in the 1590s “as a model for historians to emulate” was due to the belief that appropriate “political lessons” for Elizabethan England could be derived from him, a belief connected with the Renaissance mode of history as a moral object lesson in “the wicked deeds of wicked men (and with any luck the evil consequences of the deeds) as a warning against repeating such actions.”¹⁵ History and the present were on the same continuum, so that past moral lessons were immediately applicable to the contemporary world.¹⁶ Tacitus’s stature in the Renaissance more generally is suggested by the fact that humanist monarchs collected his maxims in little “commonplace books” which they kept “in their pockets.”¹⁷ In France, “Tacitist humanists” argued that governance could be taught through a combination of historical study and “classical ethics.”¹⁸ It is easy to see that a monarch might not have cared for either the moralism or the attempts at objectivity of Tacitean-inflected history-writing. However, Machiavelli’s historical-political writing was potentially even more disturbing, with its abandonment of Tacitean ethics in favour of a pragmatic and cynical realpolitik as practised by rulers throughout the previous centuries – an argument from history that horrified many English early moderns, including Ralegh and Cotton, as well as James I and Charles I themselves.¹⁹ Since English early moderns understood that “history repeats itself, the past is like the present,” from the Crown’s perspective it followed that “the argument of analogy may be treasonable,” and that it was important to censor historical works to ensure that they served the government’s interest.²⁰ Another priority was to preserve the civil peace in an age marked by religious tension. In one interesting Elizabethan example, it was argued by a Church of England divine that a book should be censored because its content might hurt the sensibilities of “those that are popishly inclined.”²¹ According to Fussner (apparently with reference to the Tudor era), historians had a certain degree of freedom, although it was considered improper to investigate ‘mysteries’ or ‘secrets’ of State, a concept used by Eliz-

15 16 17 18 19 20 21

Burgess, p. 10 – 11; Broadway, p. 180 – 181. Burgess, p. 9. Soll, p. 65. Soll, p. 52. Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 29; Haivry, p. 139 – 140. Fussner, p. 40. Fussner, p. 39.

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abeth to close down debate and James I to suppress criticism.²² While this notion would become extremely contentious in the judicial context, contemporary historians were often more comfortable with this restriction than might be expected. This meek attitude was sometimes rewarded. For example, the antiquarian Camden’s explicitly worshipful deference to ‘mysteries of state’ (and disapproval of “those curious inquisitive people” who would dare to explore them) brought dividends in the shape of unusually liberal access to the State Papers for his – essentially official – history of the Elizabethan State.²³ In this work Camden quoted his primary sources at substantial length, with careful citations, in order to indirectly provide material to other historians who would not be afforded such special access.²⁴ Similarly, when Giles Fletcher requested permission from William Cecil to write a history of the Elizabethan age in 1590, he asked Cecil to choose the primary sources for him and personally approve his final text, and pre-emptively assured him that he would defend Elizabeth’s legitimacy (another touchy subject) by expressing support for Henry VIII’s divorce.²⁵ Fussner observes that this behaviour shows a keen awareness of the “political significance and purpose of history.”²⁶ However, it also suggests that Fletcher was seriously intimidated. These experiences form a contrast to a censorship case from the late Elizabethan Age, especially interesting for its prosecuting counsel and his later role in the great constitutional debates: Sir Edward Coke. In Hayward’s Case, Sir John Hayward had published a book entitled First Part of the Life and Reign of Henry IV in 1599, fatefully dedicated to the Earl of Essex, who would rebel against the Crown in 1601.²⁷ Here again, the Queen showed herself particularly reactive on the subject of Richard II, and Hayward was imprisoned in the Tower.²⁸ Even though Hayward argued that his book was not meant to imply anything critical about Elizabeth, Attorney-General Coke had carefully noted down what he felt to be insinuated comparisons between the Queen and Richard II in the book.²⁹ Hayward was interrogated as to how he had gained access to the State Papers that he had used for his research – this was an attempt to smoke out accomplices, but also demonstrated official awareness “of the propaganda value of impressive

22 23 24 25 26 27 28 29

Fussner, p. 40 – 41, 238. Fussner, p. 40 – 41, 237– 239. Fussner, p. 40 – 41, 237– 239. Fussner, p. 41. Fussner, p. 41. Fussner, p. 39; Gajda and Cavill, p. 28. Gajda and Cavill, p. 28. Fussner, p. 39.

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documentation.”³⁰ It also highlights a point which Fussner does not note, i. e. the Crown’s paranoia about unauthorised access to the State Papers. It transpired that the hapless Hayward had simply plagiarised Foxe’s Acts and Monuments for the offending sections, as well as lifted entire quotes from Tacitus.³¹ (Broadway comments that the case showed that “a combination of recent British history and Tacitus could […] lead to trouble from the authorities.”)³² Lawyer Francis Bacon, also representing the Crown, contemptuously concluded that Hayward ought to be prosecuted as a felon but was not a traitor, though Fussner emphasises that Hayward’s official disgrace was motivated by “reasons of state” rather than the exigencies of sound academic practice.³³ Ironically, Attorney-General Coke himself would later be faced by official orders to amend his legal commentaries following his dismissal by James I from the post of Chief Justice of the Court of King’s Bench – orders which, remarkably, he defied.³⁴ The degree of freedom could vary considerably depending on how thin-skinned the reigning monarch happened to be concerning the historical work’s particular subject. Charles I took offence at an historical reference to Nero in a thousandpage-book (Histriomastix by William Prynne) inveighing against stage plays, which set in train Prynne’s vicious 1634 prosecution by the prerogative Court of Star Chamber, over the course of which his ears were cut off.³⁵ Similar brutality was shown in a case concerning a more obviously provocative work of Prynne’s. Printer John Lilburne, leader of the proto-democratic grouping the Levellers and the developer of an early theory of human or ‘free-born’ rights, was arrested in 1637 and tried by the Court of Star Chamber for circulating various banned Puritan works, including Prynne’s political pamphlet Newes from Ipswich discovering certaine late detestable practises of some domineering lordly prelates — which itself, ironically, attacked the censorship for prohibiting Puritan works and allowing ‘popish’ ones.³⁶ (Prynne’s own persecution for the authorship of this text is examined later.) Lilburne’s refusal, under torture, to incriminate himself during the hearing, arguing spiritedly that the right against self-incrimination was an inher-

30 Fussner, p. 39 – 40. 31 Fussner, p. 40; Gajda and Cavill, p. 29. 32 Broadway, p. 59. 33 Fussner, p. 40. 34 Garnett, p. 57, 59. 35 Lamont, Marginal Prynne, p. 31 – 33; Fry and Davies, “William Prynne in the Huntington Library,” p. 54. 36 Timperley, Encylopaedia of Literary and Typographical Anecdote, p. 488; Prynne, Newes from Ipswich.

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ent right of the free-born, established the groundwork for the United States’ later Fifth Amendment rights.³⁷ Further light is shed on censorship of religious works – often underpinned by historical analysis – by an instance reported in the 1628 Parliamentary debates. The discussion reveals that the censorship process could be highly inconsistent and prone to chicanery and corruption. A Puritan bookseller called Sparkes witnessed to the committee for the courts of justice that he had been imprisoned by England’s supreme ecclesiastical court for books that had been passed by the censor in the first edition (with only immaterial changes in the second), and that a work of William Prynne’s (The perpetuitie of a regenerate man’s estate) had been confiscated on the second print run, though the first had been allowed.³⁸ Sparkes related that the chaplain to the Bishop of London, a Dr. Thomas Worrall, was “the only allower of books” and that he extorted various licensing payments, requiring five pounds for the publication of an analysis of the four books of Moses, but on another occasion demanding “a beaver hat” (a luxury article, since the skin would have had to be imported from England’s possessions in the New World).³⁹ In other instances Worrall prevented the publication of books “without any cause,” such as a book on “conflicts of conscience,” or William Prynne’s attack on a collection of private devotions as performed in the ancient church, which Prynne perceived to be popish.⁴⁰ By contrast, according to Sparkes, the venal Worrall licensed “all books tending to popery.”⁴¹ Further, Sparkes concluded dismally, “poor printers and their children are undone” – due, he implied, to Worrall’s greed for large cash payments and fashionable headgear.⁴² It may be that, given the Puritan influence in the Commons, Sparkes was moved to emphasise the beaver hat for sound political reasons: this was just the sort of vain adornment that the Puritans despised. William Prynne himself, who in the same year published a vituperative pamphlet attacking ornate hairstyles, would certainly have taken against it.⁴³ While the reactions to Prynne and Lilburne were certainly brutal, it is not easy to determine the truth about the English censorship system in general. The picture has been clouded by Cold War-era scholarship by Frederick S. Siebert and Marxist historian Christopher Hill, portraying the early modern English censorship system – in the form of the Stationers’ Company, who licensed publications on a compul-

37 38 39 40 41 42 43

Rauh, “The Privilege Against Self-Incrimination from John Lilburne to Ollie North,” p. 405 – 406. Commons Debates 1628, Vol. III, p. 151. Commons Debates 1628, Vol. III, p. 151. Commons Debates 1628, Vol. III, p. 151. Commons Debates 1628, Vol. III, p. 151. Commons Debates 1628, Vol. III, p. 151. Prynne, Health’s Sickness. The Unloveliness of Lovelocks, 1628.

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sory basis and had official “nation-wide powers of search and seizure” – as comparable in its efficiency and ruthlessness to state censorship in Soviet Russia or Nazi Germany.⁴⁴ (Of course, the point of departure for the comparison, the supposed uniform efficiency and ruthlessness of censorship in totalitarian regimes, is itself questionable.)⁴⁵ Such an extreme portrayal naturally invites a reaction, and Sharpe notes the work of Sheila Lambert and Blair Worden, who argued “that censorship of literature was seldom effective and rarely attempted.”⁴⁶ The evidence cited for this contention is the Crown’s capriciousness towards those, like Cotton, whom it had censored, imprisoning them one minute and inviting them to take up official appointments the next.⁴⁷ However, this approach probably did not serve to reassure, but rather disorient the victims. Lambert portrayed the Company as “‘a couple of hundred squabbling small tradesmen’ with no interest in upholding the hegemony of the state,” and argued that high-profile cases of persecution, such as Prynne’s, obscure an overall lacklustre approach to the task of censorship, expressed by censor Joseph Hunscott’s keeping of chickens on the Company’s premises in the 1640s.⁴⁸ However, as McElligott points out, such bucolic hobbies do not exclude an ability to be single-minded in the pursuit of unlicensed material, and Hunscott was indeed very active on this front, arresting purveyors of John Lilburne’s works, for example.⁴⁹ The Stationers’ Company does not seem to have been as ruthless and efficient as the later, all-encompassing French system of censorship under Louis XIV’s First Minister of State Jean-Baptiste Colbert, with its frequent classification of historical documents as “secret intelligence,” its police inspectorate of bookshops, vicious punishments for sellers of unapproved books, prohibition on the learning of Latin and Greek by printing apprentices, and censorship of historical works concerning the Old Testament, which were thought to undermine religion and, with it, Divine Right monarchy.⁵⁰ This does not, on the other hand, mean that there was no reason to fear the Stationers’ Company. Indeed, there is even an argument to be made that the unpredictability of official inconsistency and caprice, on the Company’s part as well as the Crown’s, could have a particularly intimidating effect. The fallacy is to suppose that the Company’s amusing and eccentric aspects cancel out the real threat that it represented. James

44 McElligott, “‘A Couple of Hundred Squabbling Small Tradesmen’? Censorship, the Stationers’ Company, and the state in early modern England,” p. 85 – 89. 45 McElligott, p. 90. 46 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 16 – 17. 47 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 17. 48 McElligott, p. 88, 91. 49 McElligott, p. 91. 50 Soll, p. 129 – 132.

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I himself was unprepossessing and frequently ridiculous, but this did not mean that he posed no danger to authors of legal-historical works such as John Selden (as will later be discussed). Indeed, Berkowitz argues that the extent to which the Stuart Crown stifled free investigation and expression has been insufficiently acknowledged – in particular its sensitivity to any discussions of “matters of state” and its “use of the treason laws […] for repressing unacceptable ideas, whether expressed or not.”⁵¹ Censorship of the Stuart postal system seems to have been far-reaching (if the State Papers are an accurate indication), with interception and reading of letters enthusiastically supported by local elites. In one example, probably in 1614, an intercepted letter in Spanish from a Francesco Carter to his brother, a “servant of the Earl of Oxford,” detailed how he had been “thrown into prison by the justices of Canterbury, for being ignorantly the bearer of certain letters for London, the contents of which were so suspicious that the letters were sent up to the Council.”⁵² Indeed, in 1616 the King issued a proclamation banning all post except that which had been “authorized by the postmasters,” apparently provoked by “letters being brought from abroad by private agents, contrary to ancient custom.”⁵³ Speaking on political matters at all outside of Parliament became increasingly dangerous towards the end of James I’s reign. On the 24th of December 1620 there was a “Proclamation against lavish and licentious speech in matters of state,” and the English population were patronisingly adjured “to exercise ‘modest and reverent regard of matters above their reach.’”⁵⁴ The enforcement of the proclamation was to be draconian: “All who hear such speeches are to report them within twenty-four hours, to some of the Council, on pain of imprisonment and His Majesty’s high displeasure, and the first offenders will be made an example of.”⁵⁵ The reach of Stuart censorship was wide, extending even to provincial artistic representations of important historical events: in 1621 in Ipswich, a preacher called Ward “was imprisoned for painting pictures of the Spanish fleet in 1588, the Gunpowder Treason, &c.”⁵⁶ Another man was locked up “for writing a treatise on the intermarriages with the House of Austria,” while in 1622 – no doubt also to please the Spanish – the Crown imprisoned in the Marshalsea “Dr. Everard, reader at St. Martin’s-in-the-Fields,” apparently “for preaching against the Spanish match, and the cruelties of Spaniards,” and “another preacher” was also locked up in the Gate-

51 52 53 54 55 56

Berkowitz, p. 79. Cal. State Papers Cal. State Papers Cal. State Papers Cal. State Papers Cal. State Papers

Dom. Dom. Dom. Dom. Dom.

(1611 – 18), p. 264. (1611 – 18), p. 401. (1619 – 23), p. 202. (1619 – 23), p. 202. (1619 – 23), p. 233.

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house for his sermons.⁵⁷ At the same time, and probably in reaction to these cases, there was a Royal order that “None below bachelors of divinity are to preach controversial sermons.”⁵⁸ Repression was not consistent in its perceived severity throughout the Stuart era: in 1626 following Parliament’s dissolution by Charles I, there was a surge of burn-after-reading requests in private correspondence containing even neutral-sounding reportage and political commentary.⁵⁹ The most serious aspect of the new Stuart regime was the “extension of the doctrine of constructive treason” to make “it possible to regard an unpublished manuscript as sufficient evidence for an overt act,” as argued by the prosecution in the case of Edmond Peacham.⁶⁰ In effect, this was an attack on freedom of thought itself. It meant that for an historian, “the very possession of the raw materials of his work […] might be a cause of prosecution,” and “private papers, notes, and collections of manuscripts were a possible source of danger for the collector as well as the historian interested in constitutional matters” – Berkowitz mentions in this context the Crown’s seizures of Coke’s, Cotton’s, and Selden’s papers.⁶¹ As a result of this narrowing of the public space for historians, Parliament became the only theatre in which a man like Selden might freely “put forth history with boldness and safety,” under “the protection of parliamentary privilege,” and thereby advocate for the supremacy of “the rule of law.”⁶² However, Berkowitz does not acknowledge the real danger of arrest for advancing an oppositional history-based position in Parliament, while the speakers also sometimes had to contend with visits from a frustrated monarch – in March 1621 it was reported in the State Papers “The King has been to day to the Parliament; he disapproves Coke’s speeches and precedents.”⁶³ Fussner speculates that the lack of widespread protest from seventeenth-century historians indicates that they did not feel too restricted in their investigations, but this seems to presume a freedom to protest in what was clearly a fairly autocratic system – a point which he appears to concede when he admits that to challenge the official censorship would have been to attack the Royal prerogative.⁶⁴ The fact remains, as Fussner also states, that “histories were censored, and historians were prosecuted for real or imaginary historical slanders.”⁶⁵

57 58 59 60 61 62 63 64 65

Cal. State Papers Dom. (1619 – 23), p. 233, 439. Cal. State Papers Dom. (1619 – 23), p. 439. Arnold Hunt, “‘Burn this Letter’,” p. 200 – 201. Berkowitz, p. 80. Berkowitz, p. 80. Berkowitz, p. 83. Cal. State Papers Dom. (1619 – 23), p. 233. Fussner, p. 38 – 39. Fussner, p. 39.

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Berkowitz suggests that the greater repression of the Stuart era helps to explain the rather forlorn contemporary fad for collecting ancient manuscripts with no intent to ever discuss or publish them, as well as the craze for inoffensive local histories.⁶⁶ In any case, there must have been a considerable chilling effect simply from the requirement to submit manuscripts prior to publication, reminding historians that they were not at liberty “to link the past and the present in any way they saw fit” and were expected to conform to the “official policy ‘line’ on certain subjects.”⁶⁷ That the frustration and misery caused by the censorship were indeed considerable is suggested by the popular reaction to its breakdown during the early years of “teeming freedom” in the upside-down world of the early Revolutionary era: it unleashed an intoxicating tidal wave of free expression in print and in speech by self-educated common people on all subjects, not only politics.⁶⁸ They investigated radical ideas such as gender equality, atheism, democratisation of education and the professions, the Divine in Man.⁶⁹ Suddenly, as Milton put it, the nation revealed itself as “not slow and dull, but of a quick, ingenious and piercing spirit, acute to invent, subtle and sinewy to discourse, not beneath the reach of any point the highest human capacity can soar to.”⁷⁰ Hill, similarly in awe three centuries later, commented that “The eloquence, the power, of the simple artisans who took part in these discussions is staggering.”⁷¹ While a regulation of 1599 in the late Elizabethan age stipulated that the Privy Council were to be specifically responsible for licensing works of history – thereby giving them a special priority above and beyond the involvement of the Stationers’ Company – in 1637 the duty of licensing books on history and statecraft was moved even further up the executive ladder to one of the King’s two principal Secretaries of State.⁷² This was probably a reaction to the ever-more-threatening deployments of history in the political tumult. Nevertheless, at the same time the increasing political use of history served to undermine the rationale for censoring historical works in the first place, suggesting “that ‘the evidence’ was at least as important as the opinions of the censors,” and some prominent intellectuals such as Milton argued for the abolition of the licensing system altogether, “‘the greatest discour-

66 67 68 69 70 71 72

Berkowitz, p. 82. Fussner, p. 38. Hill, The World Turned Upside Down, p. 299 – 301. Hill, p. 256 – 257, 300. Milton quoted in Hill, p. 300. Hill, p. 300. Fussner, p. 38.

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agement and affront that can be offered to learning and to learned men.’”⁷³ Stuart nervousness about the political implications of history can also be seen in James’s suppression of the Society of Antiquaries, as well as the tribulations of Sir Robert Cotton, John Selden, and William Prynne.

73 Fussner, p. 41.

14 The Society of Antiquaries, primary source research, and the Ancient Constitution The Society of Antiquaries formed an important backdrop to the development of the notion of the Ancient Constitution, from its inception in approximately 1586 (the year in which Camden’s deeply-researched, monumental historical work Britannia was published, which Sharpe sees as marking the arrival of humanist classicism in England and inspiring the Society’s foundation) to its ceasing to meet in 1607 (though Cappon states that it was dissolved, apparently by James, in 1608).¹ Haivry, however, gives the beginning and end dates as “1588 and c. 1605,” and Berkowitz even asserts that it was founded by Archbishop Parker in 1572.² The confusion as to the Society’s dates is considerable. Goldie cites 1614 for the Society’s suppression by James, but according to Fussner, Sharpe, and Broadway, this was the date of an abortive attempt to revive it after its putative ending in 1607, and this revival was frustrated by James’s suspicion of the Society’s motives, the members discovering that the King had taken “‘a little Mislike of our Society; not being inform’d that we had resolv’d to decline all Matters of State.’”³ This apparent decision by the antiquaries to self-censor suggests a newly inhibited atmosphere in the Jacobean age – as Fussner points out, these precautions had not been seen as necessary before.⁴ (Indeed, one later biographer of Carew suggested that the Society dissolved out of fear of imminent prosecution by the government.)⁵ This may be connected to what Sharpe describes as an increase in the Society’s investigation of political topics, including the privileges of Parliament, in the years before 1607 and the addition of some members (including MPs) who had been critical of Crown policies.⁶ This political emphasis may in turn have been an unfortunate side-effect of what Sharpe posits as Henry Howard’s direction to the Society, apparently beginning in 1601, to produce official texts based on precedents which delineated the relevant jurisdiction, duties, and functions of every important office of state (including that of the monarch) for the assistance and education of the successor

1 Goldie, p. 11; Fussner, p. 92, 101; Yax, p. 60; Sharpe, Sir Robert Cotton, p. 11, 17; Cappon, p. 148 – 149, 155 – 156; Hallam, “Arthur Agarde and Domesday Book,” p. 255. 2 Haivry, p. 18, fn. 35; Berkowitz, p. 80. 3 Goldie, p. 11; Fussner, p. 95; Cappon, p. 156; Sharpe, Sir Robert Cotton, p. 36; Broadway, p. 76. 4 Fussner, p. 95. 5 Sharpe, Sir Robert Cotton, p. 28 – 29. 6 Sharpe, Sir Robert Cotton, p. 28 – 31. https://doi.org/10.1515/9783110791464-016

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government, “which were all but manuals for those who held the posts.”⁷ It was not only that James was a less confident ruler than Elizabeth and that the Society had become more daring in its investigations, but also that the political atmosphere was changing: the English belief in the “moral utility of history,” based on a “perceived […] fearful symmetry between past and present” – a consciousness shared by Elizabeth and James – was accompanied by an increased tendency to deploy historical precedents in political arguments.⁸ James himself, with his dogmatic insistence on the divinity of Kingship and extreme way of expressing himself in print, was certainly also personally responsible for disconcerting the political class in his new country. As (in Cotton’s account) a thousand-year-old unitary state, much older than its Continental counterparts, Christianised far earlier, and with a much grander monarch beholden to no Pope nor secular ruler, England had long displayed a distinct aversion to philosophies of state and political theories.⁹ (However, Sharpe does admit that the conception of the nation as an organic whole composed of “Prince and law, church and state, past and present,” which finds expression in Cotton’s writings based on his primary source research, was also influenced by the political ideas of the French historian Jean Bodin, searching for “a formula for order and peace.”)¹⁰ In England, political disagreements therefore usually centred instead on “policies and personalities,” and the political class in general had long been concerned to preserve the settled “status quo” composed of a responsible sovereign and obedient subjects – experience had shown that deviation resulted in chaos, and for centuries recourse had been made to past practice to resolve such conflicts.¹¹ Thus, when sixteenth-century scholars “argued that history could teach lessons, they made a theory of what had long been a practice.”¹² Haivry suggests that the Society’s failures in petitioning both Elizabeth and James for a Royal Charter were attributable to a fear that they might “drift into ‘matters of state,’” though Berkowitz is more equivocal, suggesting that the Queen was not “hostile to the existence of the society,” and that she had found its activities useful “in defending the Elizabethan church.”¹³ The project refused by the Queen bears closer examination. Cotton and two others petitioned hopefully in 1600 (according to Fussner), 1602 (according to Sharpe), or 1603 (according to

7 Sharpe, Sir Robert Cotton, p. 27, 114, 146 – 147. 8 Fussner, p. 95. 9 Sharpe, Sir Robert Cotton, p. 223 – 224. 10 Sharpe, Sir Robert Cotton, p. 225 – 226. 11 Sharpe, Sir Robert Cotton, p. 223 – 224. 12 Sharpe, Sir Robert Cotton, p. 224. 13 Haivry, p. 18, fn. 35; Berkowitz, p. 80.

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Cappon) for an historical research academy along Italian lines.¹⁴ In their petition they argued the political usefulness of history to the Crown, citing the use of historical precedents by Edward I and Henry VIII to respectively obtain overlordship of Scotland and break from the Catholic church.¹⁵ This institution was to include a national collection of books and manuscripts named after Elizabeth, combining Cotton’s materials with the Royal library, in order to bring “certain public documents into public possession” – which, Fussner suspects, meant only that they would be freely available to the Society’s members.¹⁶ (Given the precedent of liberal access set by the Cotton collection, this cynicism may not be fair. However, Sharpe underlines the fact that the academy was explicitly intended to advance and support the government’s agenda.)¹⁷ The Cornish member Carew later remarked plaintively of the Queen’s ignoring of the petition that “It imports no little disgrace to our Nation, that others have so many Academyes, and wee none at all.”¹⁸ In the mid-century, a renewed impulse towards self-censorship afflicted former Society member Sir Henry Spelman who, together with Camden, had previously (by 1615) identified the critical historical issue as “no longer the antiquity of the law, but of Parliament, especially in relation to the Crown.”¹⁹ In the stormy year 1640, marked by the debacle of the Short Parliament, Spelman anxiously noted in his essay “Of Parliaments” that, given the ‘shipwrecks’ of the previous sixteen years, it was necessary to examine the origins and essence of Parliaments, but that he would not concern himself “with them of our time (which may displease both Court and Country), but with those of old; which now are like the siege of Troy, matters only of story and discourse.”²⁰ The Society was probably the first English example “of a learned society with formal membership, set rules of procedure, and institutionally defined purposes.”²¹ Its members intended “the investigation of topics of the greatest moment, those which illustrated the history of ancient times, whereby things of permanent and general use in civil society might be learned.”²² Their discussions rejected the

14 Woolfs, p. 157; Cappon, p. 156; Fussner, p. 96; Sharpe, Sir Robert Cotton, p. 27– 28. 15 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 13. 16 Woolfs, p. 157; Cappon, p. 156; Fussner, p. 96; Tite, The Panizzi Lectures, p. 20; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 14. 17 Sharpe, Sir Robert Cotton, p. 27. 18 Cappon, p. 156. 19 Fussner, p. 103. 20 Spelman quoted in Fussner, p. 104. 21 Fussner, p. 94. 22 Fussner, p. 95.

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mythical element, destroying the English origins story which derived the nation from the Ancient Britons (who in turn were wrongly thought to have come from Ancient Troy), and instead focussed heavily on legal history, including the development of “institutions, offices, customs, privileges, and […] land tenure.”²³ Of course, the influence of the Reformation-era disputes could be seen in the antiquaries’ investigation of the English Church’s history and, more broadly, the origins of the Christian faith.²⁴ Goldie suggests that the Society’s influence on the Ancient Constitution was indirect, in the excavation of “the Saxon etymological rootedness of much that was English, and […] the promotion of ‘chorography’: local and regional studies of ancient institutions and practices.”²⁵ This is a useful reminder – despite Gilbert White’s bucolic Natural History and Antiquities of Selborne – that the chorographical strand of antiquarianism could feed into political and constitutional controversy. In general, before the Civil Wars the Society of Antiquaries, alongside the public records repositories and private ‘libraries’ like Cotton’s, fuelled research in history far more than did the universities, bringing together men from different parts of the country “who were united in their belief that to study the past was to further understanding of the present.”²⁶ The Society helped to integrate historical study into “modern learning,” with a similar stress on finding the ‘facts’ to that of contemporary science and natural history.²⁷ Most importantly for the purposes of this book, the fusion of the common law tradition and historical investigation pioneered by the Society would ultimately shake English politics to its foundations. In effect, the Society of Antiquaries was a learned society of common-law jurists.²⁸ An examination of the membership’s composition shows how thoroughly the record-keeping, legal, political, and historical research spheres intersected, a fact that has been insufficiently emphasised in the secondary literature.²⁹ The members represented the social elite, which makes the Society’s discouragement by James all the more surprising – these were not men of whom one would suspect seditious impulses. Indeed, by the end of the Elizabethan era antiquarianism had become a very suitable pastime for the well-to-do, and “some acquaintance with history” was seen as an essential attribute in Henry Peacham’s 1622 handbook The Compleat Gentleman, which, incidentally, recommended Peacham’s friend

23 Yax, p. 60 – 61; Burgess, p. 59. Most famously, in 1600 they investigated the pre-Norman antiquity of Parliament in a set of researched discourses. Cavill, p. 84 – 89; Gajda, p. 136; Archer, p. 226. 24 Fussner, p. 100. 25 Goldie, p. 11. 26 Fussner, p. 95 – 96. 27 Fussner, p. 100. 28 Burgess, p. 59. 29 One exception is Broadway, p. 74 – 75.

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John Selden as a writer of history.³⁰ (The widespread political involvement of the upper classes also required them “to acquire some historical perspective” in order to understand political debates increasingly based on precedent.)³¹ Thus almost all the Society’s forty members were of genteel background, including a number of knights and two aristocrats, while thirty-two of them were jurists by education (of whom almost all had studied common law at the Inns of Court), twelve would become MPs, six were statesmen or diplomats, four were members of the College of Heralds, two were clergy, and six were record-keepers.³² The most prominent in the latter category were Exchequer record-keeper Arthur Agarde (who was also a trained jurist), and of course Sir Robert Cotton.³³ Some very famous individuals are reputed to have been members: not only Camden, Cotton, and Spelman, but also Attorney-General of Ireland Sir John Davies, William Lambarde, and William Cecil himself, Elizabeth’s Secretary of State.³⁴ Oldys and Birch, the editors of the 1829 Oxford University edition of Sir Walter Ralegh’s works, even claimed that Ralegh and Sir Philip Sidney were members, and quote a letter of Ralegh’s to James indirectly reproaching the King for his failure to give the Society official support.³⁵ However, this statement seems doubtful, given Sidney’s early death in 1586.³⁶ (In an illustration of how tiny the educated English world was at this time, Oldys and Birch find Ralegh borrowing manuscripts from the Cotton collection, and John Selden in turn borrowing manuscripts from Ralegh.)³⁷ Far from isolated in dusty archives, record-keepers thus took a lively part in the great constitutional-historical researches of the day. They also facilitated records access for the other members, and the Society formed a nexus for the sharing of primary source material in general.³⁸ While the Society is one instance of a common pattern in which informal ties of patronage and friendship gave historical researchers a way-in to archival collections, Fussner suggests that one of its legacies, past its dissolution, was record-keepers’ continuing willingness to facilitate “historical research.”³⁹

30 31 32 33 34 35 36 37 38 39

Fussner, p. 34, 51; Toomer, p. 16; Berkowitz, p. 49. Fussner, p. 51. Fussner, p. 76, 92 – 93; Ross, “The Memorial Culture of Early Modern English Lawyers,” p. 240. Cappon, p. 155. Kippis, p. 298 fn. C; Cappon, p. 155; Styles, p. 51; Yax, “Arthur Agarde,” p. 68. Oldys and Birch, The Works of Sir Walter Ralegh, p. 317. Ringler, “Sir Philip Sidney.” Oldys and Birch, p. 317. Fussner, p. 96. Fussner, p. 60, 103.

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The Society met whenever a member had a paper to give, and also set its members seminar-type research questions, with the findings presented in the form of ‘discourses’ at every session.⁴⁰ Unsurprisingly, given the common-law legal background of most of the members, an amusing similarity to English courtroom procedure can be discerned, as the members essentially put various historical theses on trial.⁴¹ Extreme emphasis was placed on documentary evidence for the members’ “original research” and there was strong censure of conjecture or impulsive comment unsupported by documentary proofs, while members brought record copies to sessions to exchange, inspect, and submit in evidence for “particular statements.”⁴² Not all the members shared a consistent understanding of solid research methods, however: Agarde remained an outlier in his credulity regarding certain ancient legends, a weakness which Yax attributes to his lack of contact with Continental historians (in contrast to Cotton and Camden) and insular reliance on English sources, a habit deprecated by other Society members.⁴³ This does not mean that the other members, though more modern in their general rejection of the mythical, had already arrived at mature methods of historical criticism.⁴⁴ Their approach was advanced in its insistence on primary source evidence, but the members’ legal attitudes to proof and evidence tended to make their results somewhat unsophisticated.⁴⁵ The Society’s precedent-focussed rather than historically-oriented mind-set clung to a “simple correspondence theory of historical truth”: for a statement to be true, it had to match up with a ‘fact’ recorded in a primary source.⁴⁶ Their findings were felt to have a definitive degree of certainty that was derived from the evidential weight of the English legal ‘record’ and was inappropriate to historical investigation, while they were also insufficiently contextualised and often anachronistic; the English common-law argument from Custom and the Immemorial, whereby written records were assumed merely to confirm pre-existing rules, made it easy for the Society’s members to transpose a statement from a primary source to an even earlier context, and encouraged the antedating of sources when their dates were not clear.⁴⁷ Because of this misappropriation of “the concept of legal record” for historical investigation, the members often did not recognise the accuracy of factual statements in primary sources

40 41 42 43 44 45 46 47

Cappon, p. 156; Fussner, p. 94. Fussner, p. 94. Fussner, p. 94, 97. Yax, p. 62; Hallam, “Arthur Agarde and Domesday Book,” p. 255. Yax, p. 60 – 61. Fussner, p. 94, 98. Fussner, p. 98. Fussner, p. 99.

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as a problem to be considered, and they had no systematic techniques for evaluating documents’ authenticity, although they did deploy philological aids as developed by Matthew Parker for the analysis of Anglo-Saxon documents.⁴⁸ The ascendant English patriotism of the Elizabethan age also affected the antiquaries, simultaneously stimulating “research in the public records” while distorting perspectives and skewing consciousness “of historical processes.”⁴⁹ Indeed, it is important to note the impact of a patriotic mentality on legal research during this period. Common-law historical investigation, with its emphasis on native customs refined into binding law by the courts through stare decisis, was an effective retort to the “civil lawyers, who viewed the English common law as a ‘municipal custom’ subject to correction from the universal principles and practices of the law of nations” – a comparatively precarious foundation for individual liberties.⁵⁰ Fussner and Pocock both emphasised what they saw as the blinkeredness of English legal historians. According to Fussner, unlike their French counterparts, who had already begun engaging in comparative approaches, they “remained insular scholiasts” hamstrung by precedent, while Pocock claimed that the commonlaw tradition isolated the English historian as “a provincial, on the edge of European learning.”⁵¹ More recent scholarship has disproved “the insularity thesis,” however, and discovered a nascent awareness of legal evolution, notably the changes brought by the Normans.⁵² Sharpe robustly shows via (inter alia) Cotton’s examination of French historians and the Norman legacy in England that the antiquaries, despite their nationalist bias, made use of comparative techniques in their exploration of the common-law tradition.⁵³ Burgess claims that the insularity that they did display derived from their sophisticated understanding of the nature of the common law, that “customary laws were inherently insular because they evolved in particular environments […] that the bulk of English law was, as a contingent fact, of customary origin without much admixture of civil law.”⁵⁴ These re-evaluations have shown that English jurists were aware of both the civil law tradition and “humanist jurisprudence,” and were familiar with Continental legal scholarship.⁵⁵ Even Fussner eventually admits that English common-

48 Fussner, p. 99, 102 – 103. To be fair, however, even in the Continental context, Jean Mabillon’s De re diplomatica would not be published until 1681. 49 Fussner, p. 100. 50 Christianson, Discourse on History, p. 11. 51 Fussner, 99; Pocock, p. 90. 52 Burgess, p. 80; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 10 – 11. 53 Sharpe, Sir Robert Cotton, p. 22 – 24. 54 Burgess, p. 82. 55 Burgess, p. 80.

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law history became more sophisticated over this period: Spelman’s discovery of the feudal roots of the common law situated the latter in a wider Western legal context, and together with Selden and Cotton he revisited English historiography against the background of classical and contemporary Continental scholarship, especially French legal humanism.⁵⁶ Haivry states that the Society disseminated “continental historical techniques and ideas among English scholars.”⁵⁷ The exploration of the Norman Conquest and feudalism by Cotton, Spelman, and others owed much to etymological research methods learned from Continental researchers.⁵⁸ In the context of the Society’s activities and the resources provided by the Cotton collection, Sharpe suggests, Coke’s dogmatic, insular attachment to the Immemorial “was not only exceptional,” but a deliberately chosen political position.⁵⁹ If the Society tended to focus its activities on English history and law, this may have been a necessity as well as a preference. Recent work by Toomer on the resources available to seventeenth-century legal historians – albeit with specific reference to Selden’s scholarship – suggests that published sources of Continental law were available but somewhat sparse. Across Europe, “The study of Roman law […] made remarkable progress during the sixteenth century” and a standard published edition of the Corpus Juris Civilis compiled by the French jurist Denis Godefroy was available, as were a number of different editions of the Codex Theodosianus, compilations of Germanic laws including some Carolingian capitularies, the Castilian code of Alfonso X (in Spanish), and anthologies of French customary laws in general and Norman customs in particular.⁶⁰ This handful of readily available reference works contrasts with the far greater number of sources for English law, of which “an astonishing amount had been published” by 1700, even though these publications were often imperfect.⁶¹ They included Littleton’s textbook on land law, Tenures, as well as numerous editions of English statutes in the originals’ Latin and Law French in addition to English translation; these of course all began with Magna Carta, although in the revised version from the reign of Henry III, viewed by Selden and his contemporaries as definitive and generally perceived to form the beginning of parliamentary legislation.⁶² However, English case law was less well served, although it was of key importance: “some of the Year Books had been printed, but many were available only in manuscript,” and

56 57 58 59 60 61 62

Fussner, p. 102. Spelman’s investigation of feudalism is discussed at length by Pocock, p. 91 – 123. Haivry, p. 18, fn. 35. Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 12. Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 11. Toomer, p. 36 – 38. Toomer, p. 39. Toomer, p. 39, 89; Cavill, “Polydore Vergil and the first English Parliament,” p. 81.

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no Year Books after Henry VIII were available, so that instead abridgements of case law by Brooke, Fitzherbert, Plowden, and Dyer were used.⁶³ (William Prynne commented extensively on the convention of using abridgements in the introduction to his edition of the Parliamentary Writs.) Coke only began his famous Reports of judgments in 1572, within the lifetime of John Selden.⁶⁴ A major source for legal history, the plea rolls of “thousands of cases from the medieval and later periods,” had not been published to any extent by the seventeenth century and had to be consulted in the original, in the Tower or other repositories.⁶⁵ In contrast, the “numerous manuscripts” of Anglo-Saxon laws that had survived the Conquest, in Anglo-Saxon and Latin, were – like the Anglo-Saxon period in general – the focus of considerable interest during the Elizabethan era, fanned by Lambarde’s translated edition of them in Archaionomia (1568).⁶⁶ Despite Fussner’s portrait of static anachronism, the coexistence of precedent and its slow, almost imperceptible evolution was acknowledged by some of the Society’s legal theorists and their friends. The common-law mind was elastic enough to accommodate both the invocation of venerable custom in an apparent denial of change, and on the other accept the factual refinement of custom by precedent. An elegant example from Sir Henry Spelman evokes, first, an historical awareness of Anglo-Saxon England as a foreign country, and then stresses the developmental chain which links the two epochs: “To tell the Government of England under the old Saxon laws seemeth an Utopia to us present; strange and uncouth: yet can there be no period assign’d, wherein either the frame of those Laws was abolished, or this of ours entertained; but as Day and Night creep insensibly, one upon the other, so also hath this Alteration grown upon us insensibly, every age altering something, and no age seeing more than what themselves are Actors in.”⁶⁷ In Spelman, common-law timelessness is suggested to be an illusion produced by our own limited historical perspective. Similarly, in his edition of Fortescue, Selden (never formally a member of the Society but prominent in its hinterland and closely involved with its members socially, particularly Spelman and Cotton) famously and almost mystically evokes the evolutionary continuity of the English common law system in the image of the house or ship so much repaired that, over the centuries, none of the original materials are ultimately present, but the structure is the same – reviving the age-old philosophical conundrum of the ship of Theseus as de-

63 64 65 66 67

Toomer, p. 40. Toomer, p. 40. Toomer, p. 40. Toomer, p. 40. Spelman, quoted by Cheney, p. 7.

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scribed in Plutarch.⁶⁸ This image would be echoed centuries later, perhaps unconsciously, by Orwell’s 1941 description of English civilisation as “an everlasting animal” which stretches into past and future, can “change out of all recognition” but stay the same – as an adult has nothing in common with his childhood self, yet remains the same individual.⁶⁹ In his notes on Fortescue, Selden gently engages with Coke’s views on the extreme antiquity of Parliament and the common law, portraying the English case (and indeed any legal tradition) as the result of development and augmentation through admixture with invaders’ customs over time.⁷⁰ Fussner thus somewhat overstates the unhistorical nature of the Society’s clinging to precedent. In other areas of his study, he appears to minimise their contribution. While he notes that by the mid-seventeenth century it had become conventional to formally cite original primary sources in historical works, he does not suggest that this was partially attributable to the Society’s activities – neither does he mention the Society when he notes that “Even the tradition of British empiricism owes something to those early modern historians who, by extensive use of the public records, registered the claims of history to be an arbiter of truth.”⁷¹ In one regard, it is easy to see how Society members’ less sophisticated investigations of legal history, those which emphasised changelessness and naive belief in the veracity of ancient documents, may have encouraged the notion of the sacred Ancient Constitution enshrining the rights of Parliament since time immemorial (according to Sharpe, Dodderidge made explicit claims for the antiquity of the Commons at a Society meeting on the topic).⁷² Acknowledging change amongst common-law precedents in general is one thing: in the context of the venerable constitutional settlement, it can threaten an erosion of Parliamentary rights. In any case, despite James’s suppression of the Society, the genie was already out of the lamp. The doctrine of the Ancient Constitution was, to a substantial extent, “the product of legal antiquarianism.”⁷³

Saxonism, Gothicism, and the Ancient Constitution The precedent-based common-law mind-set fostered the idea of the Ancient Constitution, as captured in Pocock’s classic definition of a collection of interdependent

68 69 70 71 72 73

Burgess, p. 7; Toomer, p. 26, 182; Christianson, Discourse on History, p. 61 – 63. Orwell, The Lion and the Unicorn: Socialism and the English Genius, p. 78. Toomer, p. 180 – 181; Christianson, Discourse on History, p. 58. Fussner, p. 69, 84. Sharpe, Sir Robert Cotton, p. 30. Burgess, p. 10.

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assumptions: “The relations of government and governed in England were […] regulated by law; the law in force in England was […] the common law; all common law was […] custom, elaborated, summarized and enforced by statute; and all custom was […] immemorial, in the sense that any declaration or even change of custom […] presupposed a custom already ancient and not necessarily recorded at the time of writing.”⁷⁴ It was the common law that specifically regulated the relationship between the people and their rulers.⁷⁵ Since “property law was at the heart of the common law,” this was another factor that explained why common-law principles “dominated the debates” on various forms of un-parliamentary revenue-raising, especially the discussion surrounding the Petition of Right.⁷⁶ Goldie usefully describes the English discourse concerning custom as “a language of political thought governed by partisan historiography.”⁷⁷ The role of primary sources was to demonstrate the continuity of custom and the Ancient Constitution, the latter presupposing “that English history could be traced back step by step to its earliest documents, with no intervening ruptures.”⁷⁸ A key feature of the doctrine was its emphasis on balancing Royal prerogatives with the subject’s property and liberties: it did not deny prerogative powers altogether but sought to delimit them and prevent their arbitrary use, Sir Edward Coke expressing his great dislike of vague and secretive defences of official action in his famous dictum “Reason of State lames Magna Carta.”⁷⁹ Royalist, absolutist opponents of the pro-Parliamentarian Ancient Constitution were as reliant as its proponents on precedents for their own polemically-motivated “historical scholarship.”⁸⁰ It is important to highlight James’s belief that the royal prerogative had actually over time become “part of the common law” so that it did not conflict with, but perfected it – an argument opposed to Coke, with his focus on immemoriality, but probably widely accepted in the early seventeenth century in a “Jacobean consensus” which unified the common- and civil-law traditions and would shatter much later on.⁸¹ In both cases, the conclusion was predetermined and sources were chosen to support it, rather like the later Whig approach to history. While the historical research methods of the Society of Antiquaries and other common-law scholars made a major contribution to the excavation of the Ancient

74 75 76 77 78 79 80 81

Pocock, p. 261. Burgess, p. 4. Burgess, p. 120. Goldie, p. 7; Trevelyan, p. 105. Burgess, p. 5. Burgess, p. 5; Fussner, p. 134. Goldie, p. 7; Trevelyan, p. 105. Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 11.

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Constitution, the theory could also include another major component, to which antiquarianism contributed: Gothicism.⁸² It was felt that, past the threshold of written memory, England’s “laws and institutions” must have had an origin somewhere, and this origin was thought to be Anglo-Saxon and pre-Conquest, as previously noted.⁸³ While this was a widely-held view in the Stuart era, “its acceptance was a fairly recent phenomenon achieved largely by English antiquarian research.”⁸⁴ However, two different views of the Anglo-Saxons existed: it was perfectly possible either to be purely insular, ignoring the Saxons’ Continental origins and pursuing native sources for the Ancient Constitution further back, past the Ancient Britons and ultimately out of sight in immemoriality (the approach favoured by Coke), or to take an explicitly Gothic perspective which included the Saxons amongst the Germanic hordes who accelerated the Roman Empire’s collapse.⁸⁵ In this version, some sixteenth and seventeenth-century theorists (including Lambarde) ultimately located the English model in “the idyll of the German forest” as described in Tacitus’s Germania, in which a ritual assembly of older Teutonic barbarians assented to legislation and elected their princes in a majoritarian fashion by rattling their spears.⁸⁶ Gothicism helped to solve a considerable evidential problem for the Ancient Constitution and defused its internal logical contradiction of detecting immemorial custom via historical primary sources such as Magna Carta – which Goldie calls “a paradoxical appeal to a history with no point de départ” – by situating the putative origin of traditional liberties at a remote point conveniently distant from the earliest Anglo-Saxon records.⁸⁷ Germania had a profound impact on European political thought in general, setting ‘Germanism’ (the argument from the historical “customs of communities”) against ‘Romanism’ or imperium (the argument that ‘sovereignty’ resides in the legislating ruler) in a durable “historical-juridical binary,” famously evoked by Montesquieu when he claimed that “the English system of liberty was found ‘in the forests’ and […] ‘taken from the Germans.’”⁸⁸ The notion’s durable cultural legacy included Robin Hood and Hereward the Wake in the English context, and Schiller’s Wilhelm Tell in the Ger-

82 Goldie, p. 10. 83 Burgess, p. 58. Cavill makes explicit the importance of this manoeuvre: the Society of Antiquaries’ dating of Parliament to before the Norman Conquest “mattered because a Saxon origin undermined the idea that an identifiable ruler had instituted parliament.” Cavill, p. 73. 84 Burgess, p. 58. 85 Burgess, p. 58. 86 Tacitus, Germania; Goldie, p. 11 – 12; Pocock, p. 56 – 57. 87 Goldie, p. 7, 19 – 20. 88 Goldie, p. 11 – 12.

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man-speaking world; it would be much abused in the service of scientific racism in the late modern age.⁸⁹ Saxonism itself, as part of “historical politics,” was the impetus for the extremely rapid development of political theory between 1640 and 1660, when “English political thought became the most advanced in Europe.”⁹⁰ Beginning in the 1640s, the ancient “Saxon constitution” was used to justify a host of radical actions, including “rebellion, deposition, and regicide”: John Milton drew on Nathaniel Bacon and John Sadler’s arguments that the Saxon constitution allowed for the execution of tyrants in his official justification of the Regicide.⁹¹ Bacon and Sadler’s treatises were also quoted in the Whig agitation against the restored Stuart monarchy, supporting “the expulsion of James II” to pave the way for a constitutional monarchy in the shape of William and Mary, while the later Whig agitation for the extension of the franchise, which began in the 1760s, also drew on Saxonist arguments.⁹² Further to the left of the Parliamentary revolutionaries, Goldie notes recent scholarship’s emphasis on the Radical-democratic deployment of the Ancient Constitution in the seventeenth century.⁹³ In particular, Saxonism could provide a contrast to the inequity of the subsequent Norman regime – a theory which, unlike the common-law view of the Ancient Constitution, emphasised rupture rather than continuity, reframing post-Conquest English laws as ultimately not English at all, but Norman and unjust.⁹⁴ Fussner notes that even “unlettered Levellers” (a condescending and inaccurate description of this group of autodidacts) angrily debated the ‘Norman Yoke,’ while Gerrard Winstanley, leader of the agrarian proto-socialist Diggers, famously collapsed Scripture with Anglo-Saxon history in a complicated allegory when he remarked that “The last enslaving conquest which the Enemy got over Israel was the Norman over England.”⁹⁵ In 1675 William Penn, one of the leading early Quakers and the founder of Pennsylvania, evoked a Gothicist version of Saxonism in England’s Present Interest, implying that the Saxons’ majoritarian form of legislating had been described in Tacitus’s portrait of the Germans.⁹⁶ The theory of the ancient Saxon Constitution in this prelapsarian, pre-Norman Yoke incarnation could foster a radical programme of legal system reform. By the Revolutionary period, many radicals viewed precedent as a burden and the inher-

89 90 91 92 93 94 95 96

Goldie, p. 11 – 12; Pocock, p. 20. Fussner, p. 106 – 107. Goldie, p. 26. Goldie, p. 26. Goldie, p. 26. Pocock, p. 126 – 127. Hill, p. 116. Goldie, p. 26 – 27.

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itance of oppression rather than – as in the traditional vision – a perfect expression of communal, cumulative reasoning over time.⁹⁷ The legal critic John Warr, who argued that “the very law is the badge of our oppression,” developed a religious critique of law which owes much to Quakerism’s “inner light” and appears to ultimately deny law’s necessity, proceeding via a series of polarities: “Form and Reason, Precedent and Equity, Law and Grace.”⁹⁸

97 Pocock, p. 33 – 34; Hill, p. 224 – 226. 98 Hill, p. 224 – 226.

15 Sir Edward Coke, Magna Carta, and records seizures Before examining Coke’s use of ancient records – notably Magna Carta – within the context of what Wernham called the “prolonged lawsuit between King and Parliament” in which “legal searches” for evidence ultimately approximated “historical research,” it is important to outline the specific constitutional developments of the Tudor age which made the situation especially ripe for conflict following the Stuart accession.¹ According to Elton, by the sixteenth century two principles concerning Parliament had been firmly established: there could be no taxation without Parliament’s consent, and statute law made in Parliament was “superior to all other laws.”² The first principle was derived from pragmatism, “the convenience of getting the consent of the realm in one place and at one time,” while the supremacy of parliamentary statute derived from Parliament’s status as the highest court in the land, its decisions binding other courts, as had been confirmed in numerous fifteenth-century cases in which judges declared matters which had been legislated upon by Parliament to be, as a result, outwith their own competence.³ The Tudor era therefore not only gave rise to English “national sovereignty” (by which Elton probably means the effects of the break with Rome), but by acknowledging the primacy of statute, it also defined the sovereignty of the Crown-in-parliament, “otherwise known as constitutional or limited monarchy.”⁴ Elizabethan MPs bent on researching parliament’s antiquity already placed heavy reliance on “legal sources” (such as records from the parliament rolls and particularly “Anglo-Saxon law-codes”) in preference to secondary narrative chronicles.⁵ Additional circumstances of the late Tudor period set the stage for the Stuartera controversies. The Elizabethan regime administered existing law far more than it legislated, so that Elizabeth only summoned Parliament on thirteen occasions (over a forty-five year period).⁶ At the same time English customary, precedentbased common law began, through Sir Edward Coke’s legal theory, increasingly to be equated with “the law of nature or reason,” with the result that by the seventeenth century custom was thought to give expression to the collective wisdom

1 2 3 4 5 6

Wernham, p. 25. Elton, England Under the Tudors (Folio Society edition), p. 67. Elton, p. 67. Elton, p. 167. Archer, p. 228 – 229. Elton, p. 397– 398.

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of the English people over time, thereby increasing the common law’s moral authority and status.⁷ During this period, there also began to circulate what Elton calls “improper and alien theories” from abroad concerning, on the one hand, monarchical sovereignty as developed by the French theorist Jean Bodin and on the other the absolute sovereignty of parliament, both of which were diametrically opposed to the native happy compromise of the balanced constitution.⁸ Elton suggests that these disturbing foreign theories were allowed to gain ground due to the “vacuum” which they encountered, i. e. the inability of Tudor theorists to resist either extreme by taking a firm stand in defence of the “unrestricted sovereignty […] of the crown in parliament.”⁹ As a result, in Elton’s interpretation, the Tudor-era English constitution in the form achieved under Henry VIII’s chief minister Thomas Cromwell “collapsed after 1603.”¹⁰ Zaller describes the classic Whig interpretation of the seventeenth century with its image “of liberty-loving country gentlemen resisting monarchical encroachment,” as famously expressed by Trevelyan in his portrait of a Parliament substantially influenced by a robust and independent-minded yeoman freeholder contingent from the Shires who clung to the principle of ‘no taxation without representation.’¹¹ This perspective was challenged in the twentieth century by “a view of Parliament as a dependent and declining institution […] in danger of functional obsolescence.”¹² However, Zaller proposes that both views are inadequate and suggests instead a new paradigm in which Parliament and Crown in the hundred years following the English Reformation (and, he implies, taking advantage of the opportunities created by the withdrawal of the Roman Catholic influence) both expanded their “scope and (assumed) authority,” until the events of 1640, which represented “a migration of legitimacy” to Parliament from the Crown.¹³ The spark that lit the touch-paper for the Stuarts’ confrontation with Parliament was an external pressure, the Pope’s claim to depose secular rulers at will, which unnerved James I and made him an enthusiastic proponent of the Divine Right of Kings: an absolutist (and religiously-based) view of kingship developed by Continental monarchs to protect themselves from just such papal over-

7 Elton, p. 397. 8 Elton, p. 398 – 400. On the impact of Bodin see also Haivry, p. 140 – 141. 9 Elton, p. 398 – 400. Elton came by this mild chauvinism naturally, as one of the group of mid-century refugees from totalitarian Europe who were inclined to find England a bastion of moderation. 10 Elton, p. 400. 11 Zaller, p. 4; Trevelyan, p. 101. 12 Zaller, p. 4. 13 Zaller, p. 5.

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reaching.¹⁴ Unfortunately, James felt compelled to broadcast this doctrine to Parliament as well as the Pope and thus provoked the constitutional debates of this era, telling his very first House of Commons that “Kings are not only God’s lieutenants upon earth and sit upon God’s throne, but even by God Himself they are called gods. As to dispute what God may do is blasphemy, so it is sedition in subjects to dispute what a King may do in height of his power. I will not be content that my power be disputed on.”¹⁵ The Commons unanimously voted to dissent from these sentiments, and when pushed by James, they claimed to be able to debate even the Royal prerogative: “We hold it an ancient, general and undoubted right of Parliament to debate freely all matters which properly concern the subject and his right […] which freedom of debate being once foreclosed, the essence of the liberty of Parliament is withal dissolved.”¹⁶ James’s proposals for Anglo-Scottish Union again alarmed Parliament and caused them to retrench, further unimpressed by James’s argument that “I am the husband and all the whole Isle is my wife” and that it was unsuitable for a Christian monarch to be forced into polygamy.¹⁷ The financial issues that would dominate Parliament’s debates with the Stuart kings soon appeared: the thrifty Elizabeth had succeeded in running her court and waging war on a shoestring budget and had therefore largely skirted the thorny question of revenue-raising, but James’s notorious extravagance soon forced the issue with the controversy over Impositions (new duties levied by the Crown on trade).¹⁸ In 1610 the Commons began to vigorously challenge this expedient following the Crown’s victory in Bates’s Case (1606) at the Court of Exchequer against a London merchant who had refused to pay the new duties on currants without Parliamentary sanction.¹⁹ They produced precedents from 1200 to 1400 to prove that it was illegal to “levy duties without consent of Parliament,” while the Crown responded with rival, “equally valid Tudor precedents.”²⁰ Gajda and Cavill suggest that the recourse to ‘records’ necessitated by these debates had the effect of associating “parliamentary proceedings with the adversarial model of legal pleading.”²¹ The national lawsuit had begun and James’s dissolution of Parliament from 1611 to

14 Trevelyan, p. 105. 15 Trevelyan, p. 105. 16 Trevelyan, p. 106. 17 Trevelyan, p. 106 – 107. 18 Trevelyan, p. 107– 108. 19 Styles, p. 58; Trevelyan, p. 104 – 105, 108; Sharpe, Sir Robert Cotton, p. 157– 158; Bates’s Case or the Case of Impositions (1606) 2 St Tr 371. 20 Trevelyan, p. 104 – 105, 108. 21 Gajda and Cavill, p. 43.

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1621 (with a brief interlude for the ‘Addled Parliament’ in 1614) over a separate religious controversy merely extended it.²² Trevelyan argued that Parliament’s adoption of historical research methods in the battles with the Stuart monarchs was prompted by alarm over the extinction of other representative assemblies in an increasingly absolutist Continental Europe, from which Parliament concluded that the proper foundation for their enterprise had to be concrete and native in the form of particular English customs and laws, so that “an antiquarian revival, instituted by several hundred of the most hard-headed men in the country, decided the future of our island.”²³ During the seventeenth century English political debate came to be dominated by “the argument from records.”²⁴ However, the foundation had already been set by Elizabethan parliaments, in less polarised circumstances: during this period MPs’ understanding of the common law “became set in the mould of Custom and the Immemorial,” which, while unhistorical in its assertion “that no precedent was an innovation,” fostered “procedures of documentation” which were not unhistorical.²⁵ That the battle between the Stuarts and Parliament would become intractable was indicated by the character of common-law precedent itself. The binding nature of English judge-made law provided a rock-solid certainty unavailable (according to Garnett) in Roman jurisprudence, making it a formidable weapon in the hands of the main spokesman for the Parliamentary cause, Sir Edward Coke.²⁶ Haivry outlines the characteristics of the English common law as delineated by Coke: “a perfect and hermetic system of law and politics, a literally insular, immemorially ancient constitution, that was so idiosyncratic and selfsufficient as to repel any alien elements,” a claim to timelessness that “had the added benefit of making the discussions about the origins of power and government irrelevant.”²⁷ This inward-looking view “was not a product of ignorance” but was essential to protect the common law’s integrity from foreign legal theories.²⁸ Coke is a contradictory figure. As Attorney-General from 1594 to 1606 he not only censored historical works, as previously mentioned, but he was also particularly brutal in his prosecution of high-profile libel and treason cases including, most notoriously, the 1603 proceedings against Sir Walter Ralegh: during the

22 Trevelyan, p. 109; The History of Parliament Trust, “Parliaments, 1604 – 1629: The reigns of James I and Charles I.” 23 Trevelyan, p. 104 – 105; see also Haivry, p. 141 – 142. 24 Fussner, p. 83. 25 Fussner, p. 30 – 31. 26 Garnett, p. 57– 58. 27 Haivry, p. 152. 28 Haivry, p. 155.

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trial Coke launched a vituperative attack rarely equalled in the history of English justice when he screamed at Ralegh “Thou hast a Spanish heart, and art thyself a viper [some witnesses heard ‘spider’] of hell.”²⁹ Coke abducted and forcibly married his fourteen-year-old daughter to Sir John Villiers (brother of James’s chief favourite George Villiers), while he also presided over the revival of witch-hunting under James.³⁰ Macaulay notes that Coke “behaved […] with execrable cruelty to prisoners on trial for their lives,” and “No man […] appeared to so little advantage when he was opposed to an inferior, and was in the wrong,” but on the other hand “no man of that age made so creditable a figure when he was opposed to a superior, and happened to be in the right.”³¹ Trevelyan draws a similar paradox, describing Coke as “the most brutal Attorney-General who ever served the Stuarts, though afterwards the proudest Judge who ever withstood their usurpations.”³² His somewhat unexpected transformation into the champion of English liberties occurred from 1611 to 1621 when James governed without Parliament (with the exception of 1614) and Coke roared ferociously on its behalf via the courts, advocacy which he then continued as a member of the 1621 – 22 Parliament.³³ Coke’s fall from official grace began with his tenure as Chief Justice of the Court of Common Pleas in 1606, where in Fuller’s Case (1607– 08) and the Case of Proclamations (1610) he asserted the primacy and the independence of the common law.³⁴ It was, of course, in Coke’s professional interest (apart from his genuine constitutional convictions) to argue “that the Judges were not, as his rival Bacon declared, ‘lions under the throne,’ but umpires between King and subject.”³⁵ In the Case of Proclamations, Coke emphasised “that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament,” and “that the King hath no prerogative, but that which the law of the land allows him.”³⁶ Under Coke’s terrifying influence, his intimidated judicial colleagues at the Common Pleas began to lean towards a proParliamentarian interpretation of obscure and difficult constitutional points.³⁷ Exasperated by the results of this appointment, James moved Coke in 1613 to head the Court of King’s Bench, but Coke continued to maintain the common law’s “suprem-

29 30 31 32 33 34 35 36 37

Trevelyan, p. 111 – 112; Macdonell, “Edward Coke.” Trevelyan, p. 122, p. 32 – 33. Macaulay, Critical and Miscellaneous Essays, Vol. 2, p. 399. Trevelyan, p. 112. Trevelyan, p. 121. Jones, “Sir Edward Coke”; Case of Proclamations [1610] EWHC KB J22. Trevelyan, p. 121. Case of Proclamations. Trevelyan, p. 121; Jones.

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acy […] over all persons and institutions except Parliament,” and acted in the interest of an independent judiciary when he refused to allow the King a “right to interview the Judges in his own chamber” on issues concerning the prerogative.³⁸ Coke was eventually dismissed in 1616 by his great enemy Sir Francis Bacon, acting through the Privy Council.³⁹ Though this temporarily encouraged the judiciary to support the Royal prerogative, Coke’s example fired the trainee jurists of the Inns of Court “to contemplate a new idea of the constitutional function and of the political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England gone to law with her King.”⁴⁰ The Parliament of 1621, James’s third, was especially tumultuous: called in response to the Palatine crisis (in which Catholic powers, notably Spain, had invaded the territories of Frederick V, James’s son-in-law), it impeached and imprisoned Lord Chancellor Sir Francis Bacon for taking bribes, and outraged James by revealing similar corruption on the part of his beloved George Villiers, so that the King briefly threatened prorogation.⁴¹ After the summer recess, the Palatine crisis led to a full-fledged constitutional disaster when the Commons refused James further subsidies for war against Spain unless it could impeach Villiers for corruption, and also insisted that the Prince of Wales, the future Charles I, should seek a Protestant wife instead of the Spanish Infanta – a matter on which feeling in England was running high.⁴² When James informed Parliament that it had no right to discuss Royal matches, which “were exclusively a matter for the royal prerogative,” Parliament asserted its right to freedom of speech, which, although an established Parliamentary right, had never before been used “to impose a reversal of foreign policy upon the sovereign.”⁴³ Stephens describes the debates of this session as rather resembling “arguments in a court of law than debates in a legislative assembly,” in the course of which “The ancient records both of the courts and of the house were often produced and read, and were the subjects of lively though learned discussion.”⁴⁴ In this Parliament, Coke spoke on Parliamentary liberties and governmental corruption, drawing heavily on Fortescue’s hugely influential De Laudibus Legum Angliae (1470) in which the changelessness of the common law, beginning

38 39 40 41 42 43 44

Jones; Trevelyan, p. 121 – 122. Jones. Trevelyan, p. 122. Thrush, “The Parliament of 1621.” Thrush, “The Parliament of 1621”; Trevelyan, p. 127. Thrush, “The Parliament of 1621”; Trevelyan, p. 127. Fry, “John Selden,” ODNB.

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with the Britons, was posited and then argued as evidence that the common law conformed to the “Law of Reason” and that “the customs of the English are not only good but the best.”⁴⁵ It was this line of argument that Coke adopted, popularised, and expanded with additional research, and which Selden would replace with a more sophisticated appeal to continuity through evolution and a rejection of the jingoistic patriotism of Fortescue’s assertion.⁴⁶ With direct reference to Coke’s and others’ famed political deployment of Magna Carta, Butterfield notes that they too directly related it to their own times, “not using the past in such a way as to give them better insight into their own generation,” but rather “arguing in a circle, and […] making their history confirm some of their misconceptions concerning their own present.”⁴⁷ It is therefore unsurprising that Coke has been called “the first Whig historian” due to his knack “of reading the present into the past,” which he did by ransacking “the records of the past to find precedents which he thought confirmed existing law.” ⁴⁸ The famous Commons Protestation of the 18th of December 1621, authored principally by Coke, claimed that the rights of Parliament were the “ancient and undoubted birthright and inheritance of the subjects of England” and Parliament’s freedom of speech extended to “arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs and grievances.”⁴⁹ This episode forms a striking contrast to the Elizabethan age, when a far stronger monarch had astutely used the instrument of the Parliamentary petition to exclude her prerogative from debate or legislation: Parliament could petition on prerogative questions and the Queen could answer “in her own way” or not at all on such matters, which included “Questions of royal marriage, of succession, of religion, and of foreign policy.”⁵⁰ In a spectacular fit of temper as a reaction to the Protestation, James sent for the minutes of Parliament and personally tore out the page containing it (perhaps motivated by the civil-law maxim Quod non est in actis non est in mundo) and by doing so “put himself as much as possible in the wrong.”⁵¹ He also had Coke arrested – the precise date is in doubt, with Britannica giving 1622 but the editors of the Commons Debates citing the 27th of December 1621 – and dissolved Parlia-

45 46 47 48 49 50 51

Styles, p. 54 – 55. Styles, p. 55 – 56. Butterfield, p. 36. Fussner, p. 30. Protestation of 1621, reprinted in Hallam, The Constitutional History of England, p. 367. Read Foster, “Petitions and the Petition of Right,” p. 28. Trevelyan, p. 127. See also Thrush, “The Parliament of 1621.”

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ment early in 1622.⁵² Coke was imprisoned in the Tower of London for nine months and tried “several times,” but the prosecution could not uncover any “incriminating evidence […] against him.”⁵³ (The King’s strategy of sending Coke’s daughter Mrs Sadler, viewed as “a discreet woman,” to visit him in the Tower so as “to bring him to more conformity” also failed.)⁵⁴ Here the seizure of Coke’s private manuscript collection played a key role: the State Papers contain the report from the 4th of January 1622 that Coke had “been examined, on accusation of failing of his duty as a counsellor and a subject, and is in great danger of a fall; his papers are searched by Sir Robt. Cotton and Sir Thos. Wilson,” while the concurrent arrests of MPs suggested to contemporaries that despite the official charges, Coke was in fact being “attacked on Parliament business.”⁵⁵ (James was “extremely displeased with the protestation,” and called “all his servants to account for not opposing it,” but most of them said that they had been absent from Parliament at the time.)⁵⁶ Cotton – appearing somewhat unexpectedly as an agent of the Crown – and Wilson as Keeper of the SPO pored over the thirty-eight (Coke later remembered thirty-seven) manuscripts that they had seized from his Temple rooms, “yet nothing could be found in any of them that could bring him into question.”⁵⁷ The Crown appears to have been dissatisfied with this result, for on the 12th of January 1622 “Sir Edw. Coke’s large collections of papers” were transferred “to the Council Chamber” to “be well searched.”⁵⁸ On the 29th of April 1628, during discussions of the importance of habeas corpus, Coke reminisced in a manner meant to illustrate the necessity of forcefully claiming the legal rights that, in his case, had been infringed: “I was committed to the Tower and all my books and study searched, and 37 manuscripts were taken away, and 34 were restored, and I would give 300 l. for the other 3. I was inquired after what I had done all my life before. So then there may be cause found out after the commitment, and the commitment is fearful.”⁵⁹ (Emphasis added.) This was an example of the attempts to force self-incrimination that Lilburne would later attack in his censorship trial. During the interrogation Coke was questioned about his career as a circuit judge, an investigation which penetrated into the provinces with “inquiry in the country where I had rid circuit; how I

52 53 54 55 56 57 58 59

Thrush, “The Parliament of 1621”; Commons Debates 1628, Vol. III, p. 150, fn. 41. Jones. Cal. State Papers Dom. (1619 – 23), p. 347. Cal. State Papers Dom. (1619 – 23), p. 333. Cal. State Papers Dom. (1619 – 23), p. 333. Commons Debates 1628, Vol. III, p. 150, fn. 41. Cal. State Papers Dom. (1619 – 23), p. 336. Commons Debates 1628, Vol. III, p. 150; another clerk’s report is at p. 154.

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had behaved myself.”⁶⁰ (Coke’s indignation at the judicial abuses inherent in his own prosecution is hard to reconcile with his previous brutality as Attorney-General.) Coke’s reminiscence followed Sir John Eliot’s recounting of a similar experience, in which he had been imprisoned without charge as retribution for his speech on the 10th of May 1626 against Villiers, and there was an attempt to trump up charges against him after his arrest: while he was in the Tower “his papers were searched and he was charged with ‘things extra-judicial to the House’.”⁶¹ Eliot used this experience to emphasise the relevant clause from Magna Carta, that the Parliamentarians are “to declare and make that plain: Nullus liber, etc. nisi per legem terrae. Reason: because when a man is there in prison a cause after searched out in papers, trunks, and studies.”⁶² Coke then seized upon this anecdote to hammer home the principle that “There must be a cause shown upon the commitment.”⁶³ (Emphasis added.) While freedom from arbitrary imprisonment was one great obsession of the Petition of Right discussions, the other was the sanctity of private property, seen as the core of the common law and the source of its freedoms.⁶⁴ It is traditionally understood in terms of prohibitions on un-parliamentary taxation and the commandeering of private homes for the billeting of soldiers, the grievances listed explicitly in the Petition of Right; to these two offences against private property by the Crown, the seizure of private record and manuscript collections can be added. The intimate connection between freedom and property in the circumstances of the time becomes particularly plain here, in an unfamiliar constellation. The Crown’s seizure of such private collections supported its ability to imprison without charge, by providing it with a means of manufacturing a charge after the imprisonment. Although religious and political persecution in this era involved these apparently routine seizures and examinations of personal papers, this was a continuation of violent search and seizure under a general warrant as previously extended and institutionalised by the Tudors.⁶⁵ The use of general warrants to find evidence

60 Commons Debates 1628, Vol. III, p. 159. 61 Commons Debates 1628, Vol. III, p. 158 fn. 99, also p. 162 and p. 165. However, Millstone suggests that the speech of the 10th of May 1626 was never delivered so that Eliot’s reminiscences about this episode – in a different context – may be suspect. Millstone, “The politic history of early Stuart parliaments,” p. 303. 62 Commons Debates 1628, Vol. III, p. 158. 63 Commons Debates 1628, Vol. III, p. 159. 64 Haivry, p. 136. 65 Cuddihy, “The English Law of Search and Seizure, 1485 – 1642.”

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against political opponents, such as by Charles I in Star Chamber proceedings, formed part of the background to the development of the US Constitution’s Fourth Amendment (freedom from unreasonable search and seizure), via the successful campaign of the eighteenth-century English Radical John Wilkes to have such general warrants struck down, by using actions for trespass.⁶⁶ The Fourth Amendment is of course intimately connected to the Fifth; in the English context, Lord Camden declared in Entick v Carrington (1765) “that search for evidence” violated the principle against self-incrimination.⁶⁷ The Crown may have had another motivation in seizing Coke’s manuscript collection, in addition to finding grounds for a charge against him – that of preventing him from carrying out more archival research to uncover further binding precedents. This is suggested by the fact that three manuscripts were never returned, detailed by Coke in this discussion of 1628. The first was “A breviate of all the records of the Tower,” in another clerk’s transcription of Coke’s speech referred to as “a brief of all the special records in the Tower written in Lambarde’s own hand,” clearly a reference to Lambarde’s famous Pandect. ⁶⁸ The second missing manuscript was “Old Orders of the Chancery” (in another transcription “the ancient order of the Chancery”): as a partisan of the common law, Coke may have had this manuscript in his study because he was interested in the late-Tudor struggle for pre-eminence between the equitable Court of Chancery and the common law courts.⁶⁹ (Fussner observes that “The common lawyers’ feud with the chancery officials stimulated research in legal history.”)⁷⁰ The third manuscript was “An excellent treatise of Ireland,” referred to by another Parliamentary diarist as being “of the government and laws of Ireland.”⁷¹ This could be the legal history of Ireland by Sir John Davies, Attorney-General of Ireland, published in 1612 and addressing some of the same concerns in the Irish context – such as the unjust billeting of soldiers upon the local population – which were at issue in England and formed part of the Petition of Right.⁷²

66 Fraenkel, “Concerning Searches and Seizures,” p. 362 – 364. 67 Fraenkel, p. 364; Entick v Carrington [1765] EWHC KB J98. 68 Commons Debates 1628, Vol. III, p. 159, 162, 166. Fussner fleetingly alludes to this speech when he notes Coke’s offer to pay £300 to buy back “three manuscripts,” one of which was William Lambarde’s “Abreviate of Tower Records”: Fussner, p. 135. There is an even briefer mention in Garnett, p. 59. Fussner also mentions Cotton and Wilson’s involvement in seizing Coke’s collection: Fussner, p. 129, fn. 1. 69 Commons Debates 1628, Vol. III, p. 159, 166; Encyclopaedia Britannica, “Chancery Division.” 70 Fussner, p. 84. 71 Commons Debates 1628, Vol. III, p. 159, 166. 72 Davies, A True Discoverie, p. 174 – 175; Petition of Right, VI.

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Not only was Coke, after the lapse of six years, still angry enough to broadcast this grievance to a clearly sympathetic Parliamentary audience, but his naming of the three seized manuscripts suggests that his listeners would have been literate enough in archival research to have understood their key importance. This underscores the contemporary importance of finding aids, ancient legal records, and works of legal history. In particular, it is clear that the loss of Lambarde’s finding aid would have made Coke’s researches in the Tower almost impossible, which was probably exactly what the Crown intended. There are several additional significant points. First, the seizure of manuscripts for the purpose of political intimidation and disgrace, as exploited by Henry VIII, was still being practised by the Stuarts. Secondly, the Crown could construe the possession of historically relevant manuscripts by a political opponent as deeply suspicious – so much so that three such seemingly inoffensive sources could be confiscated permanently. Thirdly (the most obvious), a private collection of manuscripts could be searched in hopes of finding a pretext to bring charges after the fact of imprisonment, so that this practice was intimately tied to the ongoing controversies over habeas corpus. Fourthly, the political allegiances of archives-keepers could be unstable, with Sir Robert Cotton appearing here in an unfamiliar role as an agent of the Crown, against the Parliamentarian interest. Finally, Sir Thomas Wilson is seen here in one of a number of political intrigues (the others are discussed later) that – like Cotton’s involvement – the modern mind would not normally associate with archives-keepers. Coke’s career reached its zenith when he helped to formulate the Petition of Right in 1628, the “bill of liberties against royal prerogative” – which Parliament then presented to Charles I – in which he revived Magna Carta (among other ancient precedents) as the foundation of English freedoms.⁷³ The Petition of Right became one of the components of the British Constitution, alongside Magna Carta itself and the 1689 Bill of Rights.⁷⁴ Throughout his involvement in this session, as shown by his recorded speeches in the Commons Debates, Coke – although less forensic than Selden – buttressed his arguments with citations from primary sources, such as in his speech on the 25th of March 1628 concerning the limit on the royal prerogative in the context of arbitrary imprisonment and its development over time.⁷⁵ He was initially coy about speaking because he did not have with him his pocket reference book of laws and cases known as a vade mecum (one of the examples of useful abridge-

73 Jones. 74 Encyclopaedia Britannica, “Petition of Right.” 75 Commons Debates 1628 Vol. II, p. 100 – 102.

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ments mentioned by Prynne), and said “Sir Edward Coke says nothing this day, all shall be by record,” but then quoted from memory, with appropriate citations, precedents relevant to the subject.⁷⁶ Coke’s love of records is drolly evoked in a speech on the circumstances in which revenue can be legitimately raised (exclusively by Act of Parliament) on the 22nd of March, in which he cited numbers of sources beginning “with a notable record, it cheers me to think of it […] It is worthy to be writ in letters of gold”: the statute from the twenty-fifth year of Edward III’s reign prohibiting loans against the subject’s will as infringing upon “reason and the franchises of the land.”⁷⁷ (This statute would be cited in the Petition of Right itself.) The most famous ancient record invoked during the debates on the Petition of Right was, of course, Magna Carta, portrayed by Coke in his law reports as “the first surviving written summary of English law in statutory form.”⁷⁸ This represents Magna Carta not as an innovation, but as a confirmation of English liberties ante John – a commonplace of English legal training at the Inns of Court, where Magna Carta occupied a prominent position as the first statute to be discussed, the chronological point of departure for the study of English statutes in general.⁷⁹ This special prominence no doubt contributed to the starring role that it played in the constitutional ferment of the Revolutionary era. Coke’s constitutional breakthrough was his portrayal of the writ of habeas corpus (against imprisonment without a prima facie case to answer) as the remedy for the infringement of the first liberty in Magna Carta – no imprisonment without legam terrae, which in turn was “the Common Law, Statute Law, or Custome of England” guaranteed in Chapter 29 of the statute.⁸⁰ This Cokean interpretation of habeas corpus was invoked in The Five Knights’ Case of 1627 by John Selden as legal counsel for the knights.⁸¹ Lilburne, at his trial for treason in 1649 for denouncing what he viewed as the tyranny of the Commonwealth, read Coke’s commentary on Magna Carta from the Institutes aloud to the jury (as shown in a woodcut of the time), and was acquitted.⁸² Coke’s innovation was reflected in the Petition of Right’s coupling of habeas corpus with Magna Carta.⁸³ Reporting from the commit-

76 Commons Debates 1628 Vol. II, p. 107, including fn. 63. This incident is briefly discussed by Berkowitz, p. 141. 77 Commons Debates 1628 Vol. II, p. 64 – 65. 78 Garnett, p. 54. 79 Garnett, p. 52; Haivry, p. 14. 80 Garnett, p. 55 – 56. 81 Garnett, p. 55 – 56; Haivry, p. 42 – 43. 82 British Library, “John Lilburne reading from Coke’s Institutes at his trial for treason.” 83 Garnett, p. 57.

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tee tasked with drawing up the bill which would become the Petition of Right, Coke summed up the three heads to be contained in the Petition as derived from Magna Carta (“liberty of […] person,” i. e. no imprisonment without charge – habeas corpus; “propriety of goods”; and a ban on the “billeting of soldiers”), and provided an exhaustive list of legal authorities from the reigns of Edward I, Edward III, and Richard III re-confirming these principles since Magna Carta.⁸⁴ James’s seizure of Coke’s records would be repeated twice by Charles I in reaction to Coke’s continuing exegesis of Magna Carta. Charles had Coke’s collection of manuscripts searched again in 1631.⁸⁵ This may be the event referred to by Sharpe in the context of the closure of Cotton’s collection – that Charles “impounded Sir Edward Coke’s papers” – but if so, the gap from 1629 to 1631 is an uncharacteristically long delay on the part of the monarch.⁸⁶ Sharpe states that at this time, and similarly in reaction to the uproar surrounding the Petition of Right, Charles directed Sir Thomas Wilson to recover embezzled State Papers.⁸⁷ Garnett relates that in 1634, in response to Coke’s threatening of the Crown with a definitive written commentary on Magna Carta and while Coke “lay on his death-bed” (the warrant for the records seizure itself, however, notes that Coke was in fact “lately deceased”), the King sent his agents to ransack Coke’s “study below.”⁸⁸ Charles insisted on examining any suspicious records himself, and the agents sent him “a trunk full of books and papers” which, once Charles had personally broken it open, revealed a smaller chest containing the threatened manuscript with its “exposicion upon Magna Carta and other ancient statutes.”⁸⁹ The manuscript was not released until 1641, when the Commons voted its publication (in ghoulishly commemorative fashion) on the day of Parliament’s demanded execution via a Bill of Attainder of Charles’s key advisor Thomas Wentworth, Earl of Strafford, who had come to represent all the most hated aspects of Charles’s government – a deliberate association between revenge and Coke’s commentary which shows, as Garnett notes, the totemic status that the work had achieved in the political imagination.⁹⁰ The commentary appeared in 1642 as The Second

84 Commons Debates 1628, Vol. III, p. 149. 85 Garnett, p. 59. 86 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 15. 87 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 15. 88 Garnett, p. 59; Christianson, Discourse on History, p. 283; SP 45/20 f. 195 r. My reading of the warrant is shared by Edwards, who remarks tartly with reference to the often-repeated mistake by Coke’s biographers that he was in the process of dying when the manuscripts were seized, that “The case is bad enough, without aggravation.” Edwards, Libraries, p. 186. 89 Garnett, p. 59. 90 Garnett, p. 59 – 60; Haivry, p. 70; Wedgwood, “Thomas Wentworth, 1st earl of Strafford.”

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Part of the Institutes of the Lawes of England, further establishing and popularising the notion of Magna Carta “as the fundamental law of the Constitution and a general guarantee of English liberties.”⁹¹ There had been a consistent campaign of persecution against Coke by the Crown in an attempt to prevent him from continuing his legal commentaries (particularly on Magna Carta), which involved repeated confiscations of his research materials. His last legal commentary was more important than even Coke could have foreseen.⁹² Its elaboration of Magna Carta’s place at the centre of a continuous and consistent English constitution would play a significant role in igniting and justifying the impending Civil Wars and Regicide, but it would also become the foundation of individual liberty across most of the English-speaking world.⁹³

91 Styles, p. 59; Christianson, Discourse on History, p. 283. 92 Garnett, p. 60. 93 Garnett, p. 60.

16 Parliamentary research orders Further insight into the role played by the ancient records in the constitutional controversy can be gained by examining Parliamentary orders concerning research during the seventeenth century. However, contrary to Kate Peters’ suggestion – at least as far as can be ascertained from the sources available – these seem to have focussed on the public records (i. e. those housed in the Tower and other public repositories), not the arcana imperii in the sense of the Crown’s private records kept in the SPO.¹ Of course, Parliament’s own records, at least in part, belonged technically to the arcana imperii, and this is probably what Peters means. Like the orders on record-keeping improvements and storage analysed in a previous section, these research orders began early. On the 16th of May 1610, there was an order described by Styles as the beginning of Parliamentary canvassing of primary sources, that a large team of Members should split up and research in the Tower and in the various courts: “8 of the House should search in the Tower for records, and 8 other in the Exchequer and all other Corts, and to retorne what they find.”² This research was focussed on the question of Impositions, currently the focus of controversy in Parliament in the context of Bates’s Case. ³ On the 6th of June 1610 Robert Bowyer, Keeper of the Tower records and now also Parliamentary clerk, was ordered to search for records “touching Wears” (a term whose meaning is unclear, but which may be a form of revenue), while another order from the 10th of July in the same year seems connected with Impositions, requesting a specific record from the reign of Edward III “touching the levying money by Privy Seals.”⁴ The trade duties debate rumbled on, as shown by an order of the short-lived ‘Addled Parliament,’ summoned in response to James’s worsening financial woes: in 1614, on the 12th of May, “The House moved for a Warrant to search in the Tower and Exchequer, and to any other that hath Records, and to have copies touching the King’s right of imposing Customs.”⁵ On the 14th and 17th of February 1621 a House of Lords subcommittee was appointed “to search the Public Records for Orders, Privileges, and Customs of the House [of Lords], and such copies as they require, to be signed by every officer,

1 Kate Peters, p. 171. 2 Quoted by Styles, p. 58. 3 Styles, p. 58; Healy, “The significance (and insignificance) of precedent in early Stuart parliaments,” p. 264. Healy notes here that a total of two months’ research went into producing “an exhaustive list of precedents.” 4 Thomas, Notes of Materials, p. 141; Gajda and Cavill, p. 41 – 42. 5 Thomas, Notes of Materials, p. 141. https://doi.org/10.1515/9783110791464-018

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clerk, or keeper of the said Records, without charge to their Lordships, or Fees to be paid.”⁶ (Emphasis added.) The insistence on exemplification without fees shows that this was an official evidence-gathering exercise (as opposed to simple historical research): it was necessary that the documents be authenticated so that they could be used as proofs of the Lords’ claims. In pursuance to this order, on the 30th of November that year this House of Lords subcommittee deputised John Selden “to search for Precedents of their Lordships’ Privileges amongst the Public Records, with reference to the preceding order of 14, 17 Feb.”⁷ On the 5th and 15th of December it was noted that “Selden’s Collections made respecting the Privileges, &c of the House, under the direction of the Committee above mentioned, presented to the House, bound up and kept for reference.”⁸ Now the House of Lords had an arsenal of precedents confirming its privileges conveniently to hand in a bound volume. A similar order of the 22nd-23rd of March 1621 focussed on the rights of Parliament as a judicial body under the constitution: another sub-committee of the Lords was struck “to search the Records in the Tower, or elsewhere, for Precedents touching Judicature, Accusations, and Judgments, anciently used in the High Court of Parliament.”⁹ The emphasis on Parliament’s judicial function was connected with the impeachment proceedings against Francis Bacon for corruption – which, as Thrush notes, represented “the beginning of the revival of the long-abandoned medieval practice of impeachment, whereby royal officials accused of criminal behaviour were tried and punished by Parliament.”¹⁰ Only two weeks after the convening of the short-lived ‘Happy Parliament,’ a Lords subcommittee was again appointed, on the 26th of February 1624, in an apparent attempt to institutionalise the practice of records searches for Parliament without the need for recurrent Parliamentary orders.¹¹ This subcommittee was “to have authority to depute a person to search the Public Records for Precedents, and to send any Member of their own with authority to search the Records, and to command all officers of Records to attend on them.”¹² Again, however, the reference is still to the public records – there is no indication that Parliament intended the use of the Crown’s private records in the State Paper Office. The Parliamentary programme of reforming the Church of England makes a brief appearance on the

6 Thomas, Notes of Materials, p. 129; The History of Parliament Trust, “Parliaments, 1604 – 1629: The reigns of James I and Charles I.” 7 Thomas, Notes of Materials, p. 129. This is also mentioned in Haivry, p. 36. 8 Thomas, Notes of Materials, p. 129; Haivry, p. 36. 9 Thomas, Notes of Materials, p. 129. 10 Thrush, “The Parliament of 1621”; Haivry, p. 36. 11 Thrush, “The Parliament of 1624.” 12 Thomas, Notes of Materials, p. 129.

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8th of July 1643, with the Commons order that power be given to “the [Westminster] Assembly of Divines” to “send for copies of all such Records and Leiger Books as they require” – though the order is vague about where these documents are located.¹³ These orders make clear that the Tower of London repository must often have been buzzing with Parliamentarians and their agents, hunting through the records for ammunition in the era’s great questions of state. Gajda and Cavill observe that “The Tower came to be conceived as a pre-eminent resource, distinct from Westminster and Whitehall, for early Stuart politicians seeking evidence for the privileges of the crown and the liberties of the subject.”¹⁴ The key importance of the public records for Parliament’s arguments underscores the scale of the honour that was bestowed on John Selden – one of the most engaged Parliamentary advocates – when, in 1643, he was made Keeper of the Tower repository. The apparent openness of the Tower repository even in times of great dissension between Crown and Parliament contrasts dramatically with the secretive regime at the State Paper Office. The question remains as to why, given the trouble that it caused them, the Stuart monarchs continued to allow (general) access to the Tower repository, especially in light of their actions concerning the Cotton collection. It suggests a surprisingly high level of respect on their part for the age-old principle of public access to the officially public records. The debates on the Petition of Right suggest that Coke and other leading Parliamentarians also engaged in further research on Parliament’s account without the need for an official order. Some of them had important private archival collections of their own, as evidenced by Coke’s complaints over his arrest: indeed, politicians particularly coveted abstracts of the Parliament Rolls, and Coke had been given “one such volume […] by the antiquary Francis Tate.”¹⁵ In addition, Coke and other Parliamentary legal theorists heavily used the Cotton collection of unique manuscripts for their constitutional arguments throughout the 1620s.¹⁶ This use was not without its political dangers for Sir Robert Cotton, as the next chapter will demonstrate.

13 14 15 16

Thomas, Notes of Materials, p. 141. Gajda and Cavill, p. 42. Fussner, p. 83 – 84. Fussner, p. 132.

17 Sir Robert Cotton as archival research assistant to government and Parliament Sir Robert Cotton’s career trajectory was similar to Coke’s in that he began as a trusted assistant of the Crown and ended in the crosshairs of the Stuart monarchy, due to his involvement in support of the Parliamentary cause. His wide-ranging constitutional and policy research activities for Elizabeth, James, and Charles (not mentioned at all in his Britannica entry) provide a setting for the rest of his career. It is not easy to reconstruct his biography, since his own personal papers have not survived.¹ However, he was born in 1571 as the son of a prominent Huntingdonshire family, was taught by the famous antiquary William Camden at Westminster School – a connection from which Tite dates Cotton’s interest in old manuscripts – and after his BA at Cambridge from 1581 – 85, he joined the Society of Antiquaries early (around 1586) and then in 1588 studied for a year at the Middle Temple, where he would have been exposed to the common law.² According to Sharpe, he was familiar with “the law codes of several realms, and had a sound knowledge of Roman law.”³ Cotton’s career shows how scholarly research, patronage, and politics interacted during the seventeenth century.⁴ However, it is not possible (nor pertinent) to provide an exhaustive analysis of all Cotton’s works, so this chapter concentrates on the most important highlights from a political-constitutional perspective. In 1600 (Sharpe gives a date of 1601), Cotton wrote A Brief Abstract of the Question of Precedencie Between Englande and Spaine for Elizabeth I – in modern terminology a diplomatic briefing paper, summing up the official research that the Society of Antiquaries and Cotton had carried out to resolve the question as to whether the English representative Sir Henry Neville or the Spanish ambassador should take precedence during the planned peace negotiations with Archduke Albert of Austria (ruler of the Habsburg Netherlands).⁵ The Crown’s confusion on this point indicates just how little oversight it had over its own relations with foreign states, which may have been related to the problems with finding diplomatic documents. (This issue is examined later in the section on the State Paper Office.) Sharpe suggests that the patriotism expressed in Cotton’s writings as a member of

1 Kyle and Sgroi, “Cotton, Sir Robert Bruce.” 2 Tite, The Panizzi Lectures, p. 4 – 5; Kyle and Sgroi, “Cotton, Sir Robert Bruce”; Sharpe, Sir Robert Cotton, p. 113, 197. 3 Sharpe, Sir Robert Cotton, p. 148. 4 Fussner, p. 116. 5 Lee, “Cotton, Robert Bruce”; Kippis, p. 298; Sharpe, Sir Robert Cotton, p. 25 – 26. https://doi.org/10.1515/9783110791464-019

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the Society of Antiquaries prompted the government to give him this commission, via Henry Howard.⁶ Cappon, on the other hand, suggests that in the same period official suspicion of Cotton began to develop, given the Society of Antiquaries’ interest in researching constitutional issues more generally: “It was hardly fortuitous that a few years after Cotton joined the Society, ca. 1590, the members began to convene at his house, to the mutual advantage of the Society and the Library.”⁷ However, given the remarkably friendly relations between the Crown and Cotton in the early years, this statement anticipates rather too much. It is rarely noted that Cotton began his own Parliamentary career very early, becoming a magistrate and MP for Newtown (Isle of Wight) in 1601 through the patronage of Sir George Carey, the second Lord Hunsdon.⁸ However, Cotton subsequently acquired a new patron, Henry Howard (soon to be Earl of Northampton), whose notice he had attracted during Elizabeth’s reign.⁹ Sharpe cites this as the point from which “historical scholarship had a political connection” in that Howard, himself interested in research, had seen its potential usefulness in advancing policy objectives.¹⁰ Through his connection with Howard, Cotton received “the opportunity for participation in the active workings of government and the chance that that provided for access to and scrutiny of official papers.”¹¹ Cotton’s prominence at this stage can be seen in his drafting of “two consultation papers” for Howard in 1603, in which Cotton “advocated the continuation of the Elizabethan war with Spain” – copies were widely distributed, probably on Howard’s initiative.¹² Upon the death of Elizabeth in 1603 and apparently at the instigation of Howard, who was backing the Scottish claim to the throne, Cotton wrote an historical investigation in unreserved support of complete union between England and Scotland, showing that James descended “from the Saxon kings.”¹³ (This clearly demonstrated the propaganda value of associating the newcomer with the pre-Norman English Constitution.) Cotton also frequently spoke in Parliament in favour of the union.¹⁴ He was made a knight on James’s accession to the throne of England

6 Sharpe, Sir Robert Cotton, p. 25 – 26, 114. 7 Cappon, p. 155. 8 Kyle and Sgroi: Encyclopaedia Britannica, “Sir Robert Bruce Cotton, 1st Baronet”; Sharpe, Sir Robert Cotton, p. 151. 9 Kyle and Sgroi; Kippis, p. 298; Lee,“Cotton, Robert Bruce”; Planta, p. x; Tite, The Panizzi Lectures, p. 6 – 7. 10 Sharpe, Sir Robert Cotton, p. 26 – 27. 11 Tite, The Panizzi Lectures, p. 7. 12 Kyle and Sgroi. 13 Fussner, p. 128; Sharpe, Sir Robert Cotton, p. 114 – 115; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 18. 14 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 18; Sharpe, Sir Robert Cotton, p. 153 – 154.

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on the 11th of May 1603, perhaps as a reward, and apparently via the influence of Howard.¹⁵ In 1604 Cotton was returned as MP for Huntingdonshire, and at this point he already showed sympathies for Ancient Constitutionalism.¹⁶ Before the sitting of this first Jacobean parliament, he wrote “a ‘Discourse on the antiquity of Parliament,’ in which he represented the views of an ‘ancient’ parliamentman,” but also emphasised that the interests of King and Country were inextricably intertwined.¹⁷ It has been claimed that in these early years Cotton formed a conduit of communication between Privy Council and Commons.¹⁸ A diary of Commons proceedings has been attributed to Cotton and was kept in his collection – this was probably the ‘Red Book of Parliaments’ consulted by Sir Edward Coke on the one hand and high-ranking court officials on the other, and it contains extra entries on the contentious issues of Impositions and Union with Scotland.¹⁹ It is thought that Cotton gave Howard intelligence of discussions in the Commons in this way, though he also personally reported to Howard on the parliamentary negotiations concerning the Scottish question.²⁰ While Cotton owed much of his spectacular career at the early Jacobean court to the favour of highly-placed men, he was also helped by an accident of ancestry. Planta notes the intriguing detail that James routinely called Cotton ‘Cousin,’ since they shared a common – albeit remote – descent from the Scottish Bruce family.²¹ The first instance occurred when Cotton presented himself at Court to be knighted, which seems to have prompted him to add ‘Bruceus’ or ‘Bruce’ to his own name and the royal Scottish arms to his family crest.²² This familial connection may have emboldened James to take Cotton into his favour: the King enjoyed learned antiquarian discussions with him.²³ It also may have encouraged him to give Cotton a rather personal commission. Cotton was asked by James to improve biographical remarks by Jean Auguste De Thou about his mother Mary, Queen of Scots – whose posthumous defence was something of an obsession with James – to “give a different turn to them,” and Cotton obliged by sending De Thou abstracts 15 Kyle and Sgroi; Kippis, p. 298; Lee,“Cotton, Robert Bruce”; Planta, p. x; Tite, The Panizzi Lectures, p. 6 – 7; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 18. 16 Kyle and Sgroi. 17 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 152. 18 Kyle and Sgroi: Sharpe, Sir Robert Cotton, p. 153. 19 Kyle and Sgroi. 20 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 153, 157. 21 Planta, p. x. 22 Lee, “Cotton, Robert Bruce”; Planta, p. x; Fussner, p. 120. Fussner suggests that Cotton cannily added ‘Bruce’ to his name before his meeting with James. 23 Lee, “Cotton, Robert Bruce”; Cappon, p. 154.

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of letters from Mary contained in the Cotton collection.²⁴ (This affair is explained at length by Sharpe.)²⁵ Cotton is reputed to have bought the Great Hall of Fotheringay Castle in which Mary was beheaded and had its interior furnishings, columns, and arches built into his own mansion, Connington Hall, perhaps as a shrine or an homage.²⁶ While a nineteenth-century source dated this putative episode to 1625 – 26, Lee locates it at the beginning of James’s reign, which would put it in the context of Cotton’s cultivation of the King on the pretext of familial connection.²⁷ However, Howarth has been unable to find any evidence for this tale in Cotton’s estate records.²⁸ Perhaps it was merely a rumour, put about initially by some malicious individual to evoke the morbid lengths to which Cotton would go to curry favour with the Crown. Given that Cotton was prepared to erect monuments to the mediaeval Scottish Prince David on his Fens estate in order to ingratiate himself with the new monarch, the story is nevertheless not beyond the bounds of possibility.²⁹ As previously described, due to his unparalleled archival collection Cotton rapidly became a favourite amongst the great statesmen, and was “consulted, as an Oracle, by the Privy-Counsellors, and the rest of the Ministers, upon every difficult point relating to our Constitution.”³⁰ These official commissions included “the Dignity and precedency of the Knights of the Bath,” and, mentioned with tantalising briefness by Kippis, “the Laws of England before the Conquest.”³¹ In 1608 Cotton was appointed as one of the Commissioners in the Enquiry into the State of the Navy, prompted by a corruption scandal.³² This suggests that by now Cotton was “well known at court.”³³ As Commissioner he went so far as to entertain naval captains at his home, perhaps to lull them into a false sense of security and make them communicative (he also completed 162 interviews with witnesses in a little

24 Kippis, p. 299; Lee, “Cotton, Robert Bruce”; Ramsay, “Sir Robert Cotton’s Services to the Crown: A Paper Written in Self-Defence,” p. 71. There survives an abstract from 1610 for a book in defence of Mary in Cotton’s official bibliography: Author unknown, “Sir Robert Cotton (1571 – 1631): Prose Works By or Attributed to Cotton.” 25 Sharpe, Sir Robert Cotton, p. 89 – 94. 26 Lee, “Cotton, Robert Bruce”; Rev. Bonney, quoted in Stephen Parry, “Aerial and geophysical surveys at Fotheringay Castle, Northamptonshire, October 2017-May 2018, Report No. 19/41,” p. 8. 27 Lee, “Cotton, Robert Bruce”; Rev. Bonney quoted in Stephen Parry, p. 8. 28 Howarth, “Sir Robert Cotton and the Commemoration of Famous Men,” p. 43. 29 Howarth, p. 45 – 46. 30 Kippis, p. 298. 31 Kippis, p. 298. 32 Planta, p. x; Fussner, p. 128. 33 Fussner, p. 128.

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less than a year, from 1608 – 1609).³⁴ This activity, which borders on intrigue and espionage, eventually led to his compilation of “the commission’s […] damning report” which advocated the appointment of naval staff on the basis of merit, not patronage.³⁵ While the report was not officially adopted, Cotton was invited to attend its discussion by the Privy Council, where he officially presented it.³⁶ This episode, notably Cotton’s apparent manipulative attempts to gain the trust of the enquiry’s subjects, is not completely removed from fellow archives-keeper Sir Thomas Wilson’s involvement in the Crown’s prosecution of Sir Walter Ralegh, described in Part Three. Given his later assistance to Parliament in researching constitutional controversies, activity sparked in part by the Crown’s frantic revenue-raising, it is ironic that during this early period Cotton was heavily involved in researching alternative funding streams for his extravagant monarch. He was one of the scholars employed by James to search the records for historical (and therefore legitimate) ways of raising revenue, such as “embasing the Coin” (which appears to mean the addition of base to precious metal) and (ominously) “the taxes granted from time to time to our Kings.”³⁷ Indeed, Cotton was ordered to make “Collections,” which seem to have been thematic dossiers of precedents concerning possible revenue streams.³⁸ For example, the State Papers – apparently for 1612 – contain Cotton’s “‘Extracts out of the records, wherein may be collected by what means the Kings of England have and may raise money.’”³⁹ Of these projects, the one that James liked best (for the time being) was the creation and sale of the new aristocratic title of Baronet, a 1611 scheme of which Cotton was the “prime mover.”⁴⁰ An apparently alternative idea for raising revenue, considered in 1611, involved “conferring the title of Vidom (vice Dominus), anciently used in England, on two gentlemen of every shire, with the privilege of sitting in the House of Commons, and of freedom from arrest,” (emphasis added) – perhaps unintentionally, this scheme gives the impression of manipulating the precarious situation of MPs under the Stuart regime into a sort of protection racket.⁴¹ It might also have been intended

34 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 117. 35 Kyle and Sgroi. 36 Lee, “Cotton, Robert Bruce”; Fussner, p. 128. 37 Kippis, p. 298; see also Sharpe, Sir Robert Cotton, p. 121 – 122. 38 Kippis, p. 298 – 299. 39 Cal. State Papers Dom. (1611 – 18), p. 165. 40 Fussner, p. 128; Kyle and Sgroi; Lee, “Cotton, Robert Bruce”; Sharpe, Sir Robert Cotton, p. 123 – 124. 41 Cal. State Papers Dom. (1611 – 18), p. 27.

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to have a divide-and-rule effect on the troublesome Commons, though giving certain members immunity could equally have backfired. The Baronets project required much ironing out of potentially troublesome detail, mostly concerning precedence vis-à-vis already existing ranks, whether social or military – such as the uproar that could be introduced into the Navy if junior officers who were also Baronets could thereby claim “precedence above their superior officers,” or whether Baronets could take “precedence over Barons’ younger sons.”⁴² In the latter dispute, decided in the negative, Cotton was deliberately “sent out of the way when the case was heard, because he was furnished with records” to support the Baronets’ claim.⁴³ The English government’s concern about the Catholics’ “swarming in the Kingdom” led James (always squeamish about enforcing the laws on Catholic suppression) to have Cotton write a 1616 treatise on the question of whether Jesuits and seminary priests in England ought to be executed, or simply locked up for life (unless they subsequently converted).⁴⁴ Cotton humanely argued for the latter option.⁴⁵ During this period as official researcher to the government, Cotton produced “upwards of thirty tracts or dissertations, chiefly on political or constitutional subjects, most of them written at the desire of men in power, if not at the express command of his sovereign.”⁴⁶ The Crown was thus more than aware of the Cotton collection, since it had deployed Cotton to use his materials on its behalf in various questions – so that its later horrified discovery that it contained great quantities of State Papers seems hypocritical. Overlapping with his investigations for the government, and beginning early on, Cotton was called upon by Parliament to conduct research, an involvement that may have developed via Cotton’s friendship with Robert Bowyer, Tower record-keeper, MP and later Parliamentary clerk.⁴⁷ In the 1604 session Cotton sat on various Parliamentary committees, one of which was the committee on “the attainder of the Gunpowder plotters,” i. e. on the extinction of the civil rights of the Catholic subjects prosecuted for conspiring to blow up the Houses of Parliament.⁴⁸ Cotton was part of the joint Parliamentary conference on Anglo-Scottish Union in 1606, and in this context he and another antiquarian researcher (Francis Tate)

42 43 44 45 46 47 48

Cal. State Papers Dom. (1611 – 18), p. 108, 127. Cal. State Papers Dom. (1611 – 18), p. 127. Kippis, p. 299; Lee, “Cotton, Robert Bruce.” Lee, “Cotton, Robert Bruce.” Planta, p. x. Fussner, p. 132; Broadway, p. 70. Kyle and Sgroi.

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were ordered by the Commons in 1607 “to draft a paper on naturalization law” as part of the controversy concerning how to naturalise Scots.⁴⁹ Another constitutionally-interesting intervention was Cotton’s committee appearance (on “the restitution of deprived ministers”) of the 12th of March 1606, at which Cotton argued precedents to show that James’s prerogative allowed him “to order Parliament not to discuss any particular matter,” while Cotton “also denied Sir Edwin Sandys’s claim that Parliament could legislate for the Church.”⁵⁰ Despite these discouraging remarks, Parliament often asked Cotton – a member of the committee for privileges from 1606 – for help in clarifying its own “procedure and precedent,” as on the 10th of April 1606 when “Cotton was ordered to help search for precedents to support the Commons’ claim to be able to amend a Lords’ bill, which he produced from 8 Henry IV rot. 11, a volume that he may already have owned.”⁵¹ On the 12th of March 1607 he was requested to clarify the correct form for joint Lords-Commons conferences, and on the 23rd of March the Commons asked him how they “could proceed in the absence of the Speaker,” who was ill.⁵² The suppression of English Catholics was the background to constitutional friction between Parliament and Crown on the 16th of June 1607, when James rejected the Commons’ insistence that he apply the strict Elizabethan recusancy laws (to fine or imprison Catholics who refused to attend Church of England services), “on the grounds that this was a matter for his judgment alone.”⁵³ Although this prompted an MP to ask that Cotton and Bowyer search for precedents “concerning messages from the king and the reading of petitions,” the Commons instead reacted by appointing a committee on Parliamentary privileges.⁵⁴ On the 1st of May 1610 (Sharpe cites the 30th of April), during the constitutional controversy on Impositions, Cotton was one of the team of Parliamentary researchers sent out to hunt through the Tower for precedents, and on the 10th of July he was referred to for “the correct procedure for drafting and presenting grievances to the king.”⁵⁵ Nevertheless, during this period Cotton showed himself inclined to support the Crown. On the 28th of February 1610 he argued for “granting subsidies to pay off the king’s debts,” on the historical basis that the very bestregarded kings “had subsidies at all times,” so that it was not the case that subsi-

49 50 51 52 53 54 55

Kyle Kyle Kyle Kyle Kyle Kyle Kyle

and and and and and and and

Sgroi; Sgroi. Sgroi; Sgroi; Sgroi. Sgroi. Sgroi;

Sharpe, Sir Robert Cotton, p. 153. Sharpe, Sir Robert Cotton, p. 154. Sharpe, Sir Robert Cotton, p. 155.

Sharpe, Sir Robert Cotton, p. 158.

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dies could only be raised under war conditions.⁵⁶ In the same year, during a Commons debate on the legality of Impositions on the 14th of June, Cotton “produced a precedent from the parliament roll of 5 Henry IV which showed that subsidies should be given before the king answered Parliament’s grievances, hence refuting the claim that redress before supply was customary.”⁵⁷ In 1614 James’s Queen, Anne of Denmark, sent a servant to Cotton “to make search of all such records and ancient writs as may in any way concern the rights of the Queens of England,” promising in exchange for this assistance “such effects of her favour as you shall reasonably desire.”⁵⁸ (Interestingly, ten years before Peter Proby at the Tower records repository had already sent Cecil “notes from the Tower records relative to the Queens of England.”)⁵⁹ Fussner implies that the letter demonstrates the favour that Cotton was able to obtain at court, based in part on his “Knowledge of records.”⁶⁰ Possibly because of his association with Howard, Cotton lost his seat as MP in the new, ‘Addled’ Parliament of 1614, but this did not stop the Commons from requesting him, on the 12th of May, to give them “his notes on impositions,” which was still a burning issue.⁶¹ During this Parliament Cotton finished work on an ostensible history of Henry III, which he gave to James later in 1614.⁶² This ‘history’ was in fact a vehicle for veiled criticism of the errors (such as favouritism and an inability to work with Parliament to raise revenue) common to both Henry III and James I.⁶³ It included the political ideas of Cotton’s then-patron Howard and attacked the current Royal favourite Robert Carr, Earl of Somerset, but it also criticised Henry III’s Parliaments and their refusal to help their sovereign: “Parliaments that before were ever a medicine to heal up any rupture in the prince’s fortune are now grown worse than the malady, sithence malignant humours begain more to rule in them than well composed humours.”⁶⁴ However, when Howard died in June 1614 Cotton quickly found a new patron in Carr himself.⁶⁵ It is not clear how James reacted to this moral tale – if Elizabeth hated the comparison with Richard II, it is probable that James did not appreciate being lik-

56 57 58 59 60 61 62 63 64 65

Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 158. Kyle and Sgroi. Fussner, p. 128. Cal. State Papers Dom. (1603 – 10), p. 73. Fussner, p. 128 – 129. Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 161 – 162. Kyle and Sgroi. Graham Parry, “Cotton’s Counsels: The Contexts of ‘Cottoni Posthuma,’” p. 31 – 32. Kyle and Sgroi; Graham Parry, p. 32. Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 128 – 129.

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ened to Henry III either. (In the State Papers Cotton’s history appears filed alongside Ralegh’s Prerogative of Parliaments in 1615, as if to suggest a thematic similarity between them; despite its dedication to James, the latter work also seems uncalculated to smooth its ultimately tragic author’s progress.)⁶⁶ However, there is no indication that any of Cotton’s research activities prompted his first fall from grace, a debacle which must have been all the more traumatic given the marks of quasi-familial favour that he had received from James. Instead, Cotton’s undoing was the scandal which broke in 1615 surrounding his involvement in an affair at Court, in which his new patron Carr (now James’s ex-favourite) was accused of being an accessory to the murder of the poet and courtier Sir Thomas Overbury, whose mysterious death in the Tower of London was thought to be connected to a labyrinthine sexual intrigue involving the Howard interest and an ill-considered poem which Overbury had written.⁶⁷ First Cotton attempted to free Carr by drawing up a retrospective and prospective pardon modelled on that granted by Henry VIII to Cardinal Wolsey – incidentally displaying his gift for legal-historical research – but his attempt to convince Lord Chancellor Ellesmere to authorise it on the 20th of July 1615 failed, which the ungrateful Carr blamed on Cotton’s lack of diplomacy.⁶⁸ Convinced of Carr’s innocence and aware that the trial would be rigged, Cotton was desperate to rescue him, so he helped Carr to variously destroy, hide, and forge the dates on letters which could have been interpreted as incriminating.⁶⁹ (He also, according to Gilbert Gerard, “pasted little peeces of them on Boardes for hys advantage.”)⁷⁰ Cotton had aided Carr – and James himself – “in the dangerous secret negotiations concerning the Spanish match” (between Charles and the Spanish Infanta) during the first half of 1615, which even involved Cotton in drawing up “a marriage treaty” for the Crown in August 1615.⁷¹ (The negotiations had to be concealed because James was hedging his bets by simultaneously brokering a much less promising marriage treaty with France.)⁷² Carr had encouraged Cotton to privately meet with the Spanish ambassador Gondomar and inform him that Carr, unlike the King’s other advisors, was convinced of the advisability of the match, and Cotton had indulged in a polite piece of flattery by informing the Spaniard that he felt

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Cal. State Papers Dom (1611 – 18), p. 340 – 341. Planta, p. x; Fussner, p. 125; Underdown, “Sex and Violence at the Court of King James.” Lee, “Cotton, Robert Bruce.” Fussner, p. 121 – 122; Sharpe, Sir Robert Cotton, p. 134 – 135. Quoted in Sharpe, Sir Robert Cotton, p. 135. Fussner, p. 122 – 123; Kyle and Sgroi. Kyle and Sgroi.

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himself to be “a catholic at heart.”⁷³ He also seems to have given Gondomar unfettered access to his archival collection, and the latter is reported to have made the predatory observation that “whensoever it came to be broken up (eyther before his death or after), the most choice and singular pieces might be gleaned and gathered up by a catholique hand.”⁷⁴ This statement suggests that Gondomar was contemplating purloining the archives of a rival Protestant power for Spain. In fact, Gondomar thought that Cotton was “in charge of the King’s archives,” which, if true, would have put Cotton in a position of exceptional trust and favour and made him a highly credible negotiating partner from the Spanish perspective.⁷⁵ (It is easy to imagine that this misunderstanding would have enraged Sir Thomas Wilson, who was already angry with Cotton for having appropriated materials that rightfully belonged in the State Paper Office.) When the scandal of the suspected Overbury murder broke, a clerical error made by Gondomar’s secretary included Cotton’s name in a list of English agents in the pay of the Spanish Crown – even though Gondomar himself was quick to deny the truth of the insertion.⁷⁶ Cotton was arrested in October 1615, and James issued a commission on the 26th of that month to the Privy Council to interrogate him on the charge of having communicated “secrets of State” – apparently in the form of “the valuable state papers in his Library” – to Gondomar, who had then “caused them to be copied and translated into the Spanish tongue.”⁷⁷ In December 1615 Sir Robert Carew noted “Sir Robt. Cotton imprisoned, for reasons unknown,” suggesting that, at least at the time, the Crown was determined to keep the charges secret.⁷⁸ It appears, overall, that James’s actions were disingenuous and intended to shield himself: Gondomar wrote that James had accused Cotton of exceeding his brief, but Cotton felt that he had acted in good faith, and Sharpe concludes that James “must have known most of what Cotton was doing.”⁷⁹ Cotton immediately confessed everything – his dealings with Gondomar and his interference with Carr’s letters – and was ultimately released without trial on the 12th or 13th of June 1616 after eight months’ imprisonment, finally pardoned on the 16th of July.⁸⁰ The wording of this pardon is interesting: Cotton was forgiven

73 Lee, “Cotton, Robert Bruce.” 74 Lee, “Cotton, Robert Bruce”; Fussner, p. 124. 75 Fussner, p. 124. 76 Planta, p. x-xi. 77 Planta, p. xi; Cal. State Papers Dom. (1611 – 18), p. 322. 78 Sharpe, Sir Robert Cotton, p. 133; Tite, The Panizzi Lectures, p. 20; Cal. State Papers Dom. (1611 – 18), p. 345. 79 Sharpe, Sir Robert Cotton, p. 133. 80 Fussner, p. 125; Lee, “Cotton, Robert Bruce”; Cal. State Papers Dom. (1611 – 18), p. 373, 382.

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“for all offences, according to the tenor of a coronation pardon, with exception of treason, but no remission of duties or payments,” which appears to suggest that Cotton (like Sir Walter Ralegh) went through life with the charge of treason still hanging over his head.⁸¹ It also suggests that Cotton – known to be wealthy – was required to pay for his release: Carew reported that Cotton had “procured his pardon, ‘ad majorem cautelam’” (‘for greater security’), which sounds very much like bail.⁸² In an interesting footnote, Cotton’s pardon was ordered to be used as the model (or precedent) in form for the later Royal pardon granted to Bacon in October 1621, which excepted Parliament’s sentence against Bacon.⁸³ Simultaneously Carr himself was under suspicion of leaking information to Spain: the State Papers contain, apparently from February 1616, Coke’s notes on indicting Carr for “high treason” for revealing to Gondomar “the contents of certain private letters from Sir John Digby to the King; and also for revealing the contents of other Ambassadors’ letters, to the great danger of the King and kingdom, and receiving a pension from the King of Spain.”⁸⁴ Here again, James was probably trying to deflect attention from his own part in the Spanish Match negotiations. During Cotton’s disgrace the Privy Council seized the Cotton collection for the first time, on the ground that he had allowed too liberal access to important government documents and transmitted “state secrets to the Spanish ambassador.”⁸⁵ In addition to James’s betrayal, it must have been particularly bitter for Cotton that his rival Sir Thomas Wilson at the State Paper Office was delegated to impound his papers and bring them into the SPO: “we will and require yow, to seize upon all his papers, and manuscript[es], in our name, and to our use, and to cause them to bee brought into our paper Chamber at Whitehall there to be reserved and digested in order by him [i. e. Wilson] to whom that charge appertayneth.”⁸⁶ (Of course, as already described, James would later have Wilson and Cotton do the same thing to Coke.) Stewart suggests that here James is casting Wilson as “the legitimate holder” of materials that Cotton has appropriated.⁸⁷ The implication of this warrant is that Wilson is supposed to keep and catalogue these materials for the State Paper Office, but whether Wilson actively exploited Cotton’s disgrace to add to his own collection is not clear. The Crown was also after

81 Cal. State Papers Dom. (1611 – 18), p. 382. 82 Cal. State Papers Dom. (1611 – 18), p. 425. 83 Cal. State Papers Dom. (1619 – 23), p. 299. 84 Cal. State Papers Dom. (1611 – 18), p. 348. 85 Planta, p. xi; Kyle and Sgroi. 86 Warrant quoted in Stewart, “Familiar Letters and State Papers,” in Daybell, p. 248; Cal. State Papers Dom. (1611 – 18), p. 322. 87 Stewart in Daybell, p. 248.

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Carr’s papers: apparently on the 8th of January 1616, Coke gave “Memoranda […] on searches to be made for papers belonging to Somerset, in Coppinger’s or Lord Norris’s custody, and precautions against their being destroyed.”⁸⁸ It is therefore obviously not the case that, as Cappon suggests, “the modus operandi” concerning access to the Cotton collection “was workable enough to avoid any crisis” throughout the Jacobean era.⁸⁹ (Cappon inaccurately locates the Carr affair in the reign of Charles I.)⁹⁰ This incident is another spectacular instance in which the Crown used the seizure of a records collection against a servant who was – even if artificially – persona non grata. The heavy-handedness of the action indicates that James viewed the collection as his to dispose of, a not-illogical presumption given the vast quantities of State Papers within it. James showed a similar attitude when, in 1621, he banned Sir Francis Bacon (in disgrace for accepting bribes) from accessing Cotton’s collection, where he had been writing his Life of Henry VII. ⁹¹ Fussner seems unaware of the Royal betrayal inherent in Cotton’s experiences of 1615 – 16, so that his assertion that Cotton’s gradual turning-away from the Crown on constitutional matters after this point was not at all motivated by personal resentment is probably unsound.⁹² He insists that it was based solely on Cotton’s scholarly understanding of the Ancient Constitution, though the revelation of James’s vindictiveness may have caused him “to think more seriously about the nature and use of the King’s prerogative.”⁹³ Fussner seems to be operating with a false dichotomy: Cotton’s political development may have had both intellectual and emotional components. He may have been motivated by a sense of grievance, and also by what Sharpe portrays as his frustration at the increasing failure of the Privy Council – as it came under the malign sway of Villiers – to give good advice, which inclined Cotton ever more towards Parliament to remedy the gap.⁹⁴ In any case, following this episode Cotton became critical of “Stuart methods of taxation.”⁹⁵ Even after his pardon and restoration to James’s favour, Cotton never recovered his good standing with certain highly-placed courtiers, and the social chill may partially have motivated his important new friendships with Selden, Coke, and Sir John Eliot – the latter connection, beginning in 1620, with a leading

88 89 90 91 92 93 94 95

Cal. State Papers Dom. (1611 – 18), p. 343. Cappon, p. 154 – 155. Cappon, p. 158 – 159. Lee, “Cotton, Robert Bruce”; Tite, The Panizzi Lectures, p. 20 – 21. Fussner, p. 122. Fussner, p. 122, 125. Sharpe, Sir Robert Cotton, p. 164, 169. Encyclopaedia Britannica, “Sir Robert Bruce Cotton, 1st Baronet.”

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representative of the Parliamentary cause would have a major influence on Cotton’s future career.⁹⁶ Outwardly, however, relations normalised themselves after Cotton was released from prison, and he realigned himself with the Howard interest in the figure of Thomas Howard, Earl of Arundel: in 1622, Cotton carried out primary source research for a briefing paper which convinced James to add the powers of Constable to Howard’s office as Earl Marshal, thereby giving Howard seniority within the Privy Council.⁹⁷ At the same time he also produced a discourse on the Lord High Constable’s office as well as those of “Lord Steward of England, and of Steward of the King’s household” – all three discourses are filed in the State Papers.⁹⁸ By the end of 1620 Cotton was playing a leading official role in the context of the Palatine crisis, assisting James by investigating historical precedents for raising troops, revenue and munitions.⁹⁹ In the meantime, he continued to allow the use of his collection for research purposes that he must have known would be controversial (the great dislike which James took to John Selden’s Historie of Tithes, written using materials from Cotton’s collection and dedicated to Cotton himself, is examined in the next chapter on Selden’s career).¹⁰⁰ In 1624 Cotton even brokered access for Selden to the Bishop of London’s collection, which, Fussner suggests, was necessitated by the animosity felt towards Selden by the Established Church.¹⁰¹ While Cotton apparently did not stand for the tumultuous 1621 Parliament called in response to the Palatine crisis (a session which, as previously discussed, culminated in the Protestation and Coke’s arrest), he still provided Parliament with research services concerning its own internal procedural matters, such as “the validity of the election of Henry Pelham, Member for Grimsby,” questions “concerning the opening of Parliament,” and whether Parliament could “try and sentence a non-Member,” the Catholic attorney Edward Floyd.¹⁰² Cotton’s treatise on Floyd’s case was entitled A Brief Discourse shewing that the House of Commons hath Equal Power with the Peers in Point of Judicature. ¹⁰³ Of particular interest for this study, Parliament also “arrested” the attorney’s chests containing “certain private papers, bonds, &c,” an action which caused “injury to sundry persons in suits of law” and resulted in a complaint to the Privy Council and their order to the At-

96 Fussner, p. 125; Lee, “Cotton, Robert Bruce.” 97 Kyle and Sgroi; Lee, “Cotton, Robert Bruce”; Sharpe, Sir Robert Cotton, p. 136 – 138. 98 Cal. State Papers Dom. (1619 – 23), p. 435. 99 Kyle and Sgroi. 100 Fussner, p. 135. 101 Fussner, p. 135. 102 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 167– 168. 103 Fussner, p. 133.

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torney-General to “examine the said papers, and deliver up those only relating to the private affairs of Floyd and others, but none relating to the offence for which he is under censure.”¹⁰⁴ Cotton also appears to have provided precedents to the Privy Council and the King on parliamentary judicature (specifically, whether the House of Lords was the supreme court) raised in the impeachment of Bacon.¹⁰⁵ However, Cotton was indirectly involved in the uproar over the Protestation. Fussner states that “many of the precedents cited” in the debates on Parliamentary free speech in December 1621 were derived from Cotton’s work The Antiquity and Dignity of Parliaments, A Relation to prove that the Kings of England have been pleased to consult with their Peers in the Great Councell and Commons in Parliament. ¹⁰⁶ This tract, commissioned by Villiers, seems to be a different, and more recent, work to the aforementioned tract that Cotton wrote on The Antiquitie of Parliaments at the beginning of James’s reign, which begins with words that subordinate Parliament to the King: “As touching the nature of the Right Courte of Parliament, It is nothing else but the Kinges greate councell.”¹⁰⁷ 1621’s The Antiquity and Dignity of Parliaments begins with the obviously different leading thought “That the Kings of England have been pleased, usually to Consult in the Great Council of Marriage, Peace and War, with their Peers and Commons in Parliament” – a direct contradiction of James’s interpretation of his prerogative.¹⁰⁸ In this tract, unlike some other proponents of Parliament’s rights, Cotton acknowledges the rupture and vassalage created by the Norman Conquest, and traces the convention of consulting with Parliament on matters of peace and war instead to the reign of King John and Magna Carta, via an exhaustive historical list of foreign conflicts in the reigns of various monarchs on which Parliament was consulted.¹⁰⁹ In the conclusion to the tract, Cotton gives an example which appears to warn that the Spanish may intend to use the Spanish match to undermine Protestantism in England, but allows himself to express the following hope: “I may end your Honours Trouble with this one Example, and with humble Prayer, That the Catholick King may either have so much of Princely Sincerity, as not to intend the like, or my good and gracious Master a jealous Vigilance to prevent, if he should.”¹¹⁰ Given a political context in which the highly sensitive James was al-

104 Cal. State Papers Dom. (1619 – 23), p. 300. 105 Sharpe, Sir Robert Cotton, p. 166 – 167. 106 Fussner, p. 133 – 134; Sharpe, Sir Robert Cotton, p. 170. 107 Author unknown, “Sir Robert Cotton (1571 – 1631): Prose Works By or Attributed to Cotton”; Sharpe, Sir Robert Cotton, p. 170. 108 Cotton, “The Antiquity and Dignity of Parliaments.” 109 Cotton, “The Antiquity and Dignity of Parliaments.” 110 Cotton, “The Antiquity and Dignity of Parliaments.”

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ready enraged by Parliament’s audacity in expressing itself on this subject, it remains a mystery as to how, following this provocative work, Cotton remained enough of a trusted servant to be involved in the retaliatory search and seizure of Coke’s papers. Perhaps, as Sharpe suggests, the King’s reaction was purely personal: if the beloved Villiers had commissioned the tract, then it was acceptable to James.¹¹¹ Fussner notes that Cotton was even “appointed to the Committee of Inquiry to investigate Chief Justice Coke’s affairs in 1621” – the official capacity in which he carried out the seizure of Coke’s papers.¹¹² The Infanta remained a Royal idée fixe, despite Parliament’s opposition, and there followed an ill-fated seriocomic excursion to Spain in 1623 by Prince Charles and Villiers in unconvincing disguises, under the unimaginative pseudonyms Jack and Tom Smith.¹¹³ One of their false beards “fell off at Gravesend,” exciting suspicion, and the expedition was seen as “a dangerous and unexampled experiment.”¹¹⁴ In Madrid Charles attempted to beguile the Infanta by staring at her for up to half-an-hour at a time in “a thoughtful speculative posture,” reminding the Spanish Prime Minister Olivares of a cat watching a mouse.¹¹⁵ Charles’s return to England as “a live man, a Protestant, and a bachelor” caused an upsurge of public joy which led the opportunistic Villiers to switch his position to favouring war with Spain, so that James summoned Parliament again.¹¹⁶ Cotton revived his own political career in the Parliament of 1624 as MP for Old Sarum, a seat which he may have owed to William Cecil, Earl of Salisbury, allied to Villiers; it is thought that the latter wished Cotton to be present in the Commons so that he could explain “the background to the Spanish marriage negotiations,” which Villiers wanted to end.¹¹⁷ At the joint Lords-Commons sitting of the 3rd of March requested by Villiers, “Cotton spoke at length,” and intriguingly revealed the extent of his own involvement in the Crown’s secret negotiations in 1615.¹¹⁸ Perhaps he was seizing the opportunity to clear his name and indirectly reveal James’s treachery towards him. At James’s request, Cotton wrote two pamphlets on Anglo-Spanish relations: one was the Remonstrance of the treaties of amity and marriage, which listed all

111 Sharpe, Sir Robert Cotton, p. 170. 112 Fussner, p. 126. 113 Braddock, “Review of Alexander Samson, ed. The Spanish Match: Prince Charles’s Journey to Madrid, 1623,” p. 1010. 114 Cal. State Papers Dom. (1619 – 23), p. 495 – 496. 115 D’Israeli, Curiosities Of Literature, Vol. II., p. 333. 116 Trevelyan, p. 129 – 130. 117 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 171. 118 Kyle and Sgroi.

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the historical instances of Spanish perfidy towards England, and thereby built the case to support “Parliament’s ‘advices’ to the king to break the treaties.”¹¹⁹ Kyle and Sgroi do not explicitly mention Cotton’s apparently unpublished tract of the 27th of March 1624, which seems to be a guide to James on how, by exploiting the need for Parliamentary support, he could extract himself from this diplomatic imbroglio.¹²⁰ Whether Cotton was asked to produce this policy paper for James, or wrote it spontaneously, is unclear. Cotton also wrote another tract in 1624, this time for Villiers, entitled A relation of the proceedings against ambassadors, aimed at the Spanish representatives in England, who had just wildly accused Villiers of planning a coup against James.¹²¹ However, despite all these activities, Cotton himself was not a keen proponent of the Spanish war.¹²² During this period Cotton continued to research for Parliament. One particularly interesting assignment came on the 20th of March 1624, when Selden and Cotton were asked to find precedents to illuminate the question of how the House should answer James’s subsidies request, specifically with regard to “the appointment by Parliament of treasurers of war.”¹²³ In an opaque episode of March 1624, Cotton seems to have briefly fallen under suspicion of terrorism when a gentlemanly-looking individual was seen emerging from the Palace of Westminster with “two spades” beneath his cloak, in an alarming echo of the 1605 Gunpowder Plot.¹²⁴ This prompted Cotton to exonerate himself by offering to allow the authorities to search his home, but the House accepted his word that he was innocent – in this he appears to have been supported by the Villiers interest.¹²⁵ (It is far from clear why suspicion should have fallen on Cotton to begin with; perhaps he was the only gentlemanly-looking Member of the House.) The stage was set for increased tension between King and Parliament. Both sides now supported war with Spain, but the Crown was dependent on Parliament for the money to prosecute it. James’s health was on the wane and he had essentially made Villiers, as Duke of Buckingham, de facto head of state, which led to a new era of conflict with Parliament over Villiers’ disastrous prosecution of the Spanish war.¹²⁶ All six advances failed spectacularly, including a tragic episode

119 Kyle and Sgroi. 120 Kyle and Sgroi; Cotton, “A declaracon how the King by assent of Parliamnt may publish himself…” 121 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 174. 122 Kyle and Sgroi. 123 Kyle and Sgroi; Haivry, p. 38; Hunneyball, “Selden, John.” 124 Kyle and Sgroi. 125 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 172. 126 Trevelyan, p. 130.

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in which the twelve-thousand-strong English expeditionary army starved to death in Holland before ever reaching the Palatinate.¹²⁷ Additionally, the French match with Henrietta Maria, which Villiers now favoured, was pulling England into the orbit of a Catholic France which, under the future Louis XIV, would become singularly dangerous to Protestant interests.¹²⁸ Villiers even loaned France some English ships for an attack on the Huguenot port La Rochelle, which had a long-standing connection with England.¹²⁹ It was against this inauspicious background of war and incompetence that Charles became King in March 1625.¹³⁰ Cotton won a seat (Thetford, Norfolk) in the short-lived ‘Useless Parliament’ of that year, in session from June till August and dissolved by Charles over its refusal to vote him financial supply, as well as its continuing attacks on Villiers.¹³¹ It has been suggested that Cotton gave the Commons precedents to use in Villiers’ impeachment and provided a lengthy set of research notes “on the working of the constitution” for a speech attacking Villiers – though whether it was actually given or instead became a widely-circulated essay, and the authorship of both the notes and the putative essay, are matters of considerable doubt.¹³² In any case, it seems that Villiers’ suspicion of Cotton’s involvement – together, perhaps, with his antipathy towards Cotton’s patron Howard – lay behind a strange incident on Charles’s Coronation Day in February 1626.¹³³ Cotton waited patiently on the Thames-side steps of his home between Whitehall and Westminster for the royal barge to stop on its way to the Abbey, as previously arranged with the King, so that he could present Charles with one of the jewels of his collection.¹³⁴ This was the Saxon King Athelstan’s coronation book containing the four Gospels in Latin with Athelstan’s own Saxon foreword, “upon which for divers hundred years together the kinges of England had solemnlie taken their coronation oath.”¹³⁵ It is easy to imagine Cotton’s mortification when the barge “bawked” at his river steps and sailed past, the volume picked up later by a mere royal messenger – and eventually returned to the Cotton collection.¹³⁶ This seemed to imply that it had only been on loan. Cotton’s planned presentation of the book to Charles 127 128 129 130 131 132 179. 133 134 135 136

Trevelyan, p. 132 – 133. Trevelyan, p. 133. Trevelyan, p. 134. Ashley, “Charles I.” Thrush, “The Parliament of 1625”; Sharpe, Sir Robert Cotton, p. 176. Lee, “Cotton, Robert Bruce”; Fussner, p. 126; Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 177– Lee, Lee, Lee, Lee,

“Cotton, “Cotton, “Cotton, “Cotton,

Robert Robert Robert Robert

Bruce”; Bruce”; Bruce”; Bruce”;

Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 140. Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 140. Sharpe, Sir Robert Cotton, p. 140. Tite, The Panizzi Lectures, p. 21.

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has clear echoes of his previous assistance to James in tracing his lineage from the Anglo-Saxon kings using archival materials in his collection. It may however be that – beyond Villiers’ influence – Charles was rejecting this symbolic linking of his reign with the traditions of Anglo-Saxon monarchy, and the associated implications for his relationship with Parliament. Cotton’s patron Howard was out of favour, and Villiers used his influence to have Howard imprisoned in the Tower of London immediately after the coronation, which may explain why Cotton was not elected to the brief (April-June) 1626 Parliament, but Cotton seems to have continued providing the Commons with precedents from his collection to support the campaign for Villiers’ impeachment (the renewed attacks on Villiers were the reason why Charles eventually dissolved this Parliament).¹³⁷ Even so, though Villiers asked Charles to shut down the Cotton collection – a request which was ignored – Cotton, for the present, continued in the royal favour: in a sign of the escalation to come between Crown and Parliament, in 1626 Charles ordered precedents from Cotton to demonstrate that “the kings of England have used to be present in the time of the debates and examples of causes and questions in Parliament as well as at other time.”¹³⁸ Apparently with Charles’s approval, in A Discourse touching Alteration of Coyne Cotton negatively evaluated a scheme, probably suggested by the Villiers interest, to debase the currency in order to boost royal revenue, and Charles himself introduced Cotton’s speech against it at a meeting of the Privy Council.¹³⁹ (According to Lee, Cotton deliberately upheld the London merchant interest by arguing against the scheme.)¹⁴⁰ Furthermore, Charles appointed Cotton to various “important commissions,” including a new enquiry into the Navy, which may have upset Villiers with its foreseeable highlighting of his failed 1625 naval expedition to Cádiz.¹⁴¹ Cotton’s position became temporarily uncertain when his 1614 history of Henry III was published (apparently without his knowledge) in 1627 and immediately interpreted by the Privy Council as an allegory against Villiers.¹⁴² Although the government threatened to prosecute the printers, when interrogated by the Privy Council Cotton was able to prove that he had written it in 1614 before Villiers’ rise to prominence, so that he escaped prosecution and the work’s publication went ahead anyway.¹⁴³

137 138 139 140 141 142 143

Kyle and Sgroi; Thrush, “The Parliament of 1626”; Sharpe, Sir Robert Cotton, p. 140, 180. Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 180. Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 141. Lee, “Cotton, Robert Bruce.” Encyclopaedia Britannica, “George Villiers”; Sharpe, Sir Robert Cotton, p. 141. Kyle and Sgroi; Lee, “Cotton, Robert Bruce”; Sharpe, Sir Robert Cotton, p. 142. Kyle and Sgroi; Lee, “Cotton, Robert Bruce.”

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Perhaps to give him an opportunity of confirming his good faith towards Villiers and the Crown, the Council then requested Cotton to write an advice paper on whether to call Parliament again, which he did in January 1628: The Danger wherein the Kingdom now standeth and the Remedy. ¹⁴⁴ Here he argued that Charles had a sacred duty to trust his Parliament, that the constitutional impasse should be resolved by calling it, and that Charles could lure MPs into following his scheme through “a gracious yielding to their just desires and petitions.”¹⁴⁵ Kyle and Sgroi, as well as Sharpe, claim that the tract, which, interestingly, was published and sold for two shillings, induced Charles and the Council to summon the fateful Parliament of 1628.¹⁴⁶ Consequently, it bears closer examination. The tract begins with an erudite but concise historical explanation of the background to the conflict in Europe and a shrewd analysis of Continental political dynamics (particularly the increasing power of the Holy Roman Emperor), and argues that England cannot defend itself unless it controls the sea, but that to do so would require a sum of £240,000.¹⁴⁷ Cotton candidly observes that the King’s stationing of an army in England over the winter (despite the war) is prone to interpretation as an attempt to coerce the English population and Parliament to his will, rather than as a defensive measure: that the army “was raised wholly to subvert to the will rather of power then of lawe and soe make good some farther breache upon theire liberties and freedome at home rather than defend us from any force abroade.”¹⁴⁸ He concludes with a call for reconciliation between Charles and Parliament, and acknowledges Villiers’ general unpopularity: “I could wish that to remove away a p[er]sonall distast of my lo[rd] of Buckingham amongest the people.”¹⁴⁹ Cotton appears to suggest that Villiers could correct this problem by becoming a proponent of reform and making it look as if calling Parliament was his (i. e. Villiers’) idea: “hee might be pleased (yf there be a necessitie of parliament) to appeare first advise thereunto.”¹⁵⁰ It does not seem to have occurred to any of the parties concerned that it might not be politic to broadcast, in this published tract, the disingenuousness of this piece of spin. Given all that had passed between Cotton and Villiers, Cotton’s remarks on the latter suggest a detached mastery of realpolitik. Indeed, Sharpe notes the pragmat-

144 Kyle and Sgroi; Lee, “Cotton, Robert Bruce”; Sharpe, Sir Robert Cotton, p. 142. 145 Kyle and Sgroi; Lee, “Cotton, Robert Bruce.” 146 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 142; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 25 – 26. 147 Cotton, “The Danger wherein the Kingdom now standeth and the Remedy.” 148 Cotton, “The Danger”. 149 Cotton, “The Danger”. 150 Cotton, “The Danger”; Sharpe, Sir Robert Cotton, p. 142.

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ic and statesmanlike concern “with good and active government” that allowed Cotton to transcend personal antipathy and Court factionalism in this tract; he simply wanted the second man in the State “to exercise his power responsibly.”¹⁵¹ Earlier in the tract Cotton suggests that the treaty for the Spanish match “was broken by the gratefull industrie of my lo[rd] Buckingham out of his religious care (as he there declared) that the articles there demaunded might lead in some such sufferance as might endanger the quiet yf not the State of the reformed religion heere.”¹⁵² (There may be an oblique accusation of hypocrisy in that “as he there declared.”) Cotton then allows himself an open criticism when he notes that in spite of this concern, Villiers ultimately agreed, in negotiating the French match, “conditions […] as hard if not worse to the preservation of our Religion.”¹⁵³ Further public doubt as to Villiers’ religious constancy has been caused by the fact that “his mother […] and […] many [of ] his ministers […] talke much of his advancinge men popishly devoted some placed in the Campe of neerest service and cheife Commaunde,” but Cotton shows himself diplomatic by suggesting that these worries about Villiers’ faith (and by implication the country’s religious course) may be “worsse in feare than in trueth,” suggesting that Villiers could resolve “the squemish humors” by explicitly addressing these concerns.¹⁵⁴ Astoundingly, Cotton even issues a plea for Villiers’ retention in his concluding paragraph, suggesting a mutually happy outcome if the King agrees to call Parliament with a statement that this was at Villiers’ behest.¹⁵⁵ Such grace on Charles’s part, Cotton remarks (again with an argument from history), “I would wish to be granted by president [precedent] of his best and fortunate progenitors,” and notes that it “will largely satisfy the desires and hopes of all if it may appear in some sort to be drawn down from him to the people by the zealous care and industry that my lord Buckingham hath of the public unity and content.”¹⁵⁶ This will not only protect Villiers from future conflict with the people, but will “merit a happy memory amongst them of a zealous Patriot.”¹⁵⁷ Cotton’s very last sentence is a plea against sacrificing Villiers to appease the public, with an allusion to similar instances in history where the outcome of such expediency was bad for the sovereign: “to expiate the passion of the people at such times with the Sacrifice of any of his Majesty’s servants” has been found by Cotton (“in E.2. R.2. and H.6”) to be just as fatal “to the

151 152 153 154 155 156 157

Sharpe, Sir Robert Cotton, p. 143. Cotton, “The Danger”. Cotton, “The Danger”. Cotton, “The Danger”. Cotton, “The Danger”. Cotton, “The Danger”. Cotton, “The Danger”; Kippis, p. 299.

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Master” as “to the minister in the end.”¹⁵⁸ The remarkable frankness of this manuscript gives it the quality of a secret internal briefing paper, so it is all the more baffling that it was sold to the public; the fact that this apparently did not provoke uproar on the side of the government suggests that the sale was officially sanctioned. 1628 would prove to be the hinge on which Cotton’s fate turned. Amusingly, his collection played a political role in his re-election attempt, though for once it was his printed books, rather than his archival materials, that were in focus.¹⁵⁹ He attempted election to Parliament for Westminster (which indicates how far his political ambitions had come since the 1601 Isle of Wight candidature), and received the backing of the Dean of Westminster.¹⁶⁰ The latter, however, was stymied by Westminster’s high steward – none other than Villiers.¹⁶¹ Clearly Villiers had not been reconciled to Cotton by the benevolent remarks in The Danger… The Dean suggested that the additional support of the vestrymen might be secured through a bribe – Cotton might consider donating his “printed history books to the library of the former Abbey of Westminster.”¹⁶² However, Cotton eventually found the alternative, less glamorous seat of Castle Rising (Norfolk) through the good offices of Howard.¹⁶³ He began courting disaster even before the new Parliament met when he hosted the pro-Parliamentary faction (including Coke, Eliot, Selden, and others) at his home.¹⁶⁴ There they hammered out their policy for the new session in response to (among other issues) the Five Knights’ Case in the Court of King’s Bench on prerogative imprisonment, and decided that the main issue of the new session “should be the reassertion of the ancient laws and liberties of Englishmen.”¹⁶⁵ The ultimate outcome, previously discussed in the chapter on Coke, was the Petition of Right.¹⁶⁶ It is highly probable that Cotton’s collection “was consulted to supply precedents for the Petition of Right, among them the Modus Tenendi Parliamentum, used by Eliot,” and that the pro-Parliamentarians conferred with Cotton on how best to present Charles

158 Cotton, “The Danger”. 159 Kyle and Sgroi. 160 Kyle and Sgroi. 161 Kyle and Sgroi. 162 Kyle and Sgroi. 163 Kyle and Sgroi; Sharpe, Sir Robert Cotton, p. 184. 164 Haivry, p. 18 – 19, 43. 165 Haivry, p. 43. (The constitutional and archival intricacies of this case are examined in the next chapter on Selden, who was the prisoners’ counsel.) 166 Haivry, p. 19, 43.

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with the petition.¹⁶⁷ Cotton was also not helped by his friendship with Eliot, one of Villiers’ most implacable enemies.¹⁶⁸ Although Charles initially assented to the Petition of Right on the 7th of June, he quickly prorogued Parliament thereafter.¹⁶⁹ There seems to be no evidence that Cotton served in the reconvened Parliament of 1629, so that it is likely that the 1628 session was his last.¹⁷⁰ As for Villiers, he was assassinated – to great public rejoicing – in August 1628 by a naval officer who had served in the Spanish campaigns and “misguidedly believed that he was acting in defense of principles asserted in the House of Commons.”¹⁷¹ Charles dissolved the 1629 Parliament when it foundered on his demand for the customs revenues of tonnage and poundage – seen as a breach of the Petition of Right – and embarked upon the eleven-year era known as the Personal Rule, during which time he did not summon Parliament.¹⁷² Lee suggests that the Court now saw Cotton “as an avowed enemy” and was actively looking for an opportunity of revenge, an interpretation supported by Fussner (“the royal revenge was […] political and petty”), while Kyle and Sgroi suggest more equivocally that Cotton “may […] have been suspected of having assisted troublesome Members of the Commons with precedents and other records.”¹⁷³ Tite, on the other hand, states definitively that “Cotton had lately sided with the critics of King Charles I’s government and his library had been closed as a punishment.”¹⁷⁴ In any case, official offence was taken at the discovery in November 1629 of an anonymous tract, circulating in copy form, entitled A Proposition for his Majesty’s Service to bridle the Impertinency of Parliament, which described how to become the perfect absolutist tyrant.¹⁷⁵ The Royalist interest, by now even more sensitive to criticism than usual, portrayed the tract as a viciously ironic parody of their own recent policies, though it later transpired to have been a serious pro-Royalist work written by the disgraced Sir Robert Dudley for James I in 1614, in an attempt to return to royal favour.¹⁷⁶ According to Haivry, “Cotton was alleged to have auth-

167 Millstone, “Manuscript Circulation and the Invention of Politics in Early Stuart England,” p. 199; Kyle and Sgroi. The Modus was a treatise from the fourteenth century likely written against Edward II, purporting to be a history of Parliament beginning with the reign of Edward the Confessor: Gajda, p. 147. 168 Kyle and Sgroi. 169 Ashley, “Charles I.” 170 Kyle and Sgroi. 171 Encyclopaedia Britannica, “George Villiers.” 172 Ashley, “Charles I.” 173 Lee, “Cotton, Robert Bruce”; Fussner, p. 131; Kyle and Sgroi. 174 Tite, The Panizzi Lectures, p. 2. 175 Lee, “Cotton, Robert Bruce”; Kyle and Sgroi; Haivry, p. 55. 176 Lee, “Cotton, Robert Bruce”; Haivry, p. 55.

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ored and disseminated” this tract, “with the collusion of Selden.”¹⁷⁷ A witch-hunt ensued to find those who had read the pamphlet, and Cotton and various highly placed men, including Parliamentary attorney Oliver St. John and the Earls of Somerset, Bedford, and Clare, were arrested.¹⁷⁸ All of these individuals, according to Sharpe, “had taken a stand on the liberty of the subject in parliament” and had been enemies of the assassinated Villiers, so that Sharpe views the arrests as a disingenuous and vengeful “purge” carried out by the remaining Villiers interest at Court.¹⁷⁹ (In his later work on Cotton, however, he appears equivocal and uncertain about the affair’s background.)¹⁸⁰ St. John confessed that the original of the tract was located in Cotton’s collection.¹⁸¹ On the 6th of November 1629 the Archbishop of York reported to the English ambassador at the Hague, Sir Henry Vane, that there was “found in his [Cotton’s] possession a pestilent tractate, which he had fostered as his child, and had sent it abroad into divers hands; containing a project how a Prince might make himself an absolute tyrant. This pernicious advice he had communicated by copies to divers Lords, who […] are questioned and restrained […] Cotton himself is in custody. God send him well out!”¹⁸² Government investigators found the tract in the collection on the 20th of November 1629.¹⁸³ Sir Edward Coke – of all unlikely people – was ordered to search Cotton’s collection, which, as Sharpe points out, was exactly what Cotton (together with Wilson) had been ordered to do to Coke years before.¹⁸⁴ An order was issued to close the collection on the official ground that – much to the Crown’s surprise – “an important state paper” had been discovered in it.¹⁸⁵ The Petition of Right had drawn heavily on Magna Carta, of which, according to Sharpe, Cotton was known to have copies; additionally, Attorney-General Heath is reported to have been outraged that “There are found in Sir Robert Cotton’s study not copies or transcripts but the very originals of records […] which indeed are not fit for a subject to keep,” and he claimed “that Cotton had not kept official papers with discretion.”¹⁸⁶ According to Stewart, the investigators tasked

177 Haivry, p. 55. 178 Lee, “Cotton, Robert Bruce.” 179 Sharpe, Sir Robert Cotton, p. 144 – 145. 180 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” in Sir Robert Cotton as Collector, p. 21. 181 Lee, “Cotton, Robert Bruce.” 182 Quoted in Kippis, p. 301; also mentioned by Berkowitz, p. 269. 183 Lee, “Cotton, Robert Bruce.” 184 Sharpe, Sir Robert Cotton, p. 81. 185 Fussner, p. 130 – 131. 186 Sharpe, Remapping Early Modern England: The Culture of Seventeenth-Century Politics, p. 315; also quoted in Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 15; Sharpe, Sir Robert Cotton, p. 145.

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with seizing and cataloguing the Cotton collection included the new Keeper of the State Paper Office William Boswell, and Stewart states that this was followed by further commissions to Boswell to impound the book and manuscript collections of Selden, Eliot, and other prominent Parliamentarians.¹⁸⁷ Importantly, the prisoners were also forbidden to use the public records in the Tower repository, a novel (if person-specific) deviation from the age-old right of public access.¹⁸⁸ Cotton’s persecution was thus part of a wider Crown project of intimidating the Parliamentary faction by seizing their papers and preventing them from conducting further archival research, and highlights the central importance of the State Paper Office for intelligence gathering. Cotton appeared confused and could not remember the tract, and the matter was referred to Star Chamber, with Cotton (as well as Bedford, Somerset, Clare, and Selden) charged with “publishing a libel.”¹⁸⁹ He compromised his own position by remarking, in his bafflement, that he must have drafted the copy of the tract, as the original was in his own collection.¹⁹⁰ One account suggests that Cotton’s assistant Richard James had allowed St. John to make a copy of the tract, and the latter had lent his copy to Bedford, who had lent it to Somerset and Clare.¹⁹¹ (When the tract was shown to Cotton, he did not recognise it at all and innocently began composing a rebuttal of its arguments for suppressing Parliament.)¹⁹² Moreover, a young man called Flood who lived with Cotton and was rumoured to be his son had seen the great commercial potential of the tract, and sold copies on his own initiative.¹⁹³ Luckily for Cotton, the date set for the Star Chamber trial (the 29th of May 1630) happened to mark the arrival of Charles’s heir, the future Charles II.¹⁹⁴ In celebration of the event, Charles stopped the legal proceedings concerning the tract and gave all the prisoners amnesty.¹⁹⁵ However, he kept Cotton’s collection closed up, although an order had been issued that Cotton would be allowed to visit it if chaperoned by a clerk of the Privy Council.¹⁹⁶ The Privy Council also established a commission on the 12th of July 1630 to search the collection for documents belonging to the Crown, a tardy and transparent attempt to rectify Cotton’s 187 Stewart, p. 250 – 251. 188 Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 15. 189 Lee, “Cotton, Robert Bruce”; Fussner, p. 130; Sharpe, Sir Robert Cotton, p. 143 – 144. 190 Kyle and Sgroi. 191 Lee, “Cotton, Robert Bruce.” 192 Fussner, p. 130; Sharpe, “Introduction: Rewriting Sir Robert Cotton,” in Robert Cotton as Collector, p. 21. 193 Lee, “Cotton, Robert Bruce.” 194 Lee, “Cotton, Robert Bruce.” 195 Lee, “Cotton, Robert Bruce”; Berkowitz, p. 280. 196 Lee, “Cotton, Robert Bruce.”

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accessioning of State Papers.¹⁹⁷ The commission, which appears to have been headed by Henry, Earl of Manchester, was ordered on the 2nd of October to inventory papers relating to matters of State in particular, the previous attempt to catalogue everything in the collection having apparently failed.¹⁹⁸ Although the collection was eventually restored to the Cotton family, Tite shows that the Crown did indeed take the opportunity to permanently confiscate some government records that had found their way into the collection.¹⁹⁹ The likelihood is that the State Paper Office’s Keeper William Boswell added them to its holdings. Although Cotton seems to have returned to official favour even before the amnesty came, with an appointment to another Royal commission on the 17th of April 1630, he thus remained deprived of his collection, continuously sealed from 1629 – 1631.²⁰⁰ He began to decline dramatically.²⁰¹ His friend Sir Simonds D’Ewes visited him numerous times and found him heart-broken, “outworne, within a few months, with anguish and grief, as his face, which had been formerly ruddy and well-coloured (such as the picture I have of him shews) was wholly changed into a grim blackish paleness, near to the resemblance and hue of a dead visage.”²⁰² Cotton felt not only the loss of the collection, but also the abandonment and disgrace when “his house […] formerly frequented by great and honourable personages, as by learned men of all sorts, remained […] desolate and empty.”²⁰³ There may have been a political background to a separate conspiracy by a group of London gangsters to attack Cotton’s honour in August 1630.²⁰⁴ The ringleader, called Stevenson (alternatively Stephenson), tried and failed to entrap Cotton into a compromising situation with Stevenson’s own wife, for purposes of blackmail.²⁰⁵ (Sharpe notes that Cotton was a notorious womaniser, which may have given Stevenson the idea.)²⁰⁶ The conspirators then tried to extort money from him with the threat of murder, claiming to be friends of “two great lords” who were prominent enemies of Cotton, adding that as he was already persona non grata he had no choice but to go along with them.²⁰⁷ They also threatened a

197 Lee, “Cotton, Robert Bruce.” 198 Lee, “Cotton, Robert Bruce”; Sainsbury, p. 240. 199 Tite, The Panizzi Lectures, p. 23 – 24. 200 Fussner, p. 130. 201 Fussner, p. 130. 202 Quoted in Kippis, p. 301. 203 Quoted in Kippis, p. 301. 204 Kyle and Sgroi. 205 Fussner, p. 148. 206 Sharpe, Remapping Early Modern England, p. 328; Sharpe, Sir Robert Cotton, p. 217; Tite, The Panizzi Lectures, p. 1. 207 Fussner, p. 148.

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vexatious legal action against him in the Court of High Commission.²⁰⁸ Nonetheless, Cotton rallied enough to research the backgrounds of the conspirators in An Abstract of all the Proofs of the Conspiracy of Stevenson and others against Sir Robert Cotton and threatened action against them in Star Chamber, comprehensively defeating them.²⁰⁹ (Incidentally, the attack on Cotton may suggest that London organised crime kept close tabs on high politics in its search for wealthy and vulnerable quarries.) The episode cannot have helped his physical condition, and even his acquisition of “two copies of Magna Carta” between 1629 and 1630 could not console him for the loss of his collection.²¹⁰ One of these copies was probably the present from Sir Edward Dering in 1630, while the other may be the one that, according to Colomiès, Cotton stumbled upon while visiting “a London tailor’s shop.”²¹¹ Given what the tailors of Dover would later do with mediaeval parchments, it may be that Cotton was only just in time to save it. Cotton died on the 6th of May 1631, after sending Charles two petitions earlier in the month (both ignored) for pardon and the restoration of his collection, in the second noting that “the documents were perishing from lack of airing, and […] no one was allowed to consult them.”²¹² Before his death Cotton is said to have asked Sir Henry Spelman to inform the Privy Council that the separation from his collection “without rendering any reason for the same, had been the cause of his mortal malady,” and that when he received this message the Lord Privy Seal visited Cotton to bring him comforting words from the King, but Cotton was already dead.²¹³ Haivry thinks it likely that the Crown’s insistence on retaining possession of Cotton’s collection even after his release contributed to his death, and notes that it also indicates “the great power now reputed to […] records and precedents in the English political scene.”²¹⁴ Sharpe comments astutely that the increasingly disputed nature of history in the context of the constitutional debates meant that records’ custody had become “a political question,” so that by the 1620s and the seizure of the Cotton collection, there was a governmental focus “on the custody of the records of precedents that all looked to for support and ammunition.”²¹⁵ Indeed, the later national trust created of the collection by the Crown, discussed previous-

208 209 210 211 212 213 214 215

Fussner, p. 148. Kyle and Sgroi; Fussner, p. 148 – 149. Kyle and Sgroi. Lee, “Cotton, Robert Bruce.” Lee, “Cotton, Robert Bruce”; Cappon, p. 159. Kippis, p. 302. Haivry, p. 55. Sharpe, “Introduction: Rewriting Sir Robert Cotton, p. 14 – 15.

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ly, may even have been an attempt to domesticate it, given its contribution to the seventeenth-century constitutional controversies and, indirectly, the Revolution. Cotton’s subtle influence on the development of the Parliamentary constitutional debates has been detected by Fussner in “an even greater stress on exact and definite precedents” by 1628 than had existed “in 1610 and 1614” – the arguments had not changed significantly, but their underpinnings had.²¹⁶ In return, the Royalist faction felt increasingly compelled to base their arguments on “established law and precedent favouring the King,” and the inhibitory effect of needing precedents for constitutional arguments (since precedent, in the English context, did tend to uphold the rights of the subject) prevented the establishment of “the complete legal absolutism of the monarch.”²¹⁷ Simply by demonstrating and responding to the need for precedents by deploying his collection of unique archival materials, Cotton’s activity essentially formed an important constitutional safeguard during an era in which, without the ballast of precedent, the argument could easily have taken a different turn. That this effect was durable is suggested by the fact that the Restoration revived the previous “political culture in which disputes were solved by precedent rather than violence,” and thus put the Cotton collection once more “at the centre of the overlapping circles of scholarship and politics.”²¹⁸ Little attention has been devoted to the post-Charles II political history of the collection, but Tite includes a suggestive episode from the reign of James II and his abortive attempt to reintroduce Catholicism. Sir John Cotton turned down an offer by the Protestant scholar Dr Thomas Smith (who had just been deprived of his fellowship at Oxford in James’s religious purge of the faculty) to catalogue the Cotton collection on the basis that it was currently expedient – for the moment – for the collection to keep a low profile, considering that it contained significant material that Cotton described as “‘very crosse to the Romish interest, & you know what kind of persons the Jesuits are.’”²¹⁹ While Fussner gives Sir Robert Cotton full credit for his activity as an archiveskeeper supplying various constitutional research projects, he significantly underplays the role that Cotton personally took in high politics as a policy researcher and advisor – drawing on his collection – to first James and then Charles (in marked contrast to Sharpe’s portrayal). In particular, Cotton’s intelligent and politically astute advice to the Privy Council in 1628 to call Parliament and attribute the idea to Villiers shows just how high his government career carried him.

216 217 218 219

Fussner, p. 131. Fussner, p. 131 – 132. Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 4. Tite, The Panizzi Lectures, p. 71.

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John Selden, while also a political moderate committed to the balanced constitution, represents the opposite professional case to Cotton, whose fame rested mainly on his reputation as an archives-keeper and policy advisor. Selden, by contrast, was primarily a legal scholar and politician, given responsibility for keeping the public records in a later, crucial period of struggle.

18 John Selden: Archival research, legal history, and constitutional activism Selden was of a humbler background than Cotton, born in 1584 in the tiny village of Salvington, West Sussex, to a yeoman farmer who was apparently the village fiddler (named as “the minstrell” on the register of Selden’s birth) and a mother of genteel land-owning stock.¹ The diarist John Aubrey provided a remarkable pen portrait of Selden in maturity: six feet tall, with a smallish head, a “sharp oval face,” a long crooked nose, and large grey pop-eyes.² He showed prodigious scholarship as a child and was admitted to Oxford at the age of fifteen, where “he soon took his station as a distinguished antiquary,” though he left without achieving a degree – standard practice for those who did not aspire to a career as an academic or a clerk.³ Beginning in 1602, Selden trained as a common law barrister and studied at the Inner Temple from 1603, where, like many other pupils, he occupied himself with gaining “an extraordinarily wide erudition in matters legal and not,” including literature and the arts, and was ultimately made a barrister in 1612.⁴ Bayley suggests that he was not very interested in law “as a profession,” and dedicated himself to antiquarian research instead.⁵ However, this assessment is not quite accurate – though Selden rarely had occasion to appear in court, he became wealthy by specialising in property conveyancing, then as now an arcane but lucrative standby.⁶ The flexible, self-directed nature of common law education in “the commonwealth of learning” at the Inner Temple allowed Selden to acquire, in parallel, a redoubtable expertise in “an uncommon mixture of all law with history.”⁷ (Emphasis added.) During his pupillage Selden attracted the friendship of Sir Robert Cotton (possibly by 1605), and Cotton seems to have given him a type of student job in which he copied and abstracted records that Cotton required for his own studies, for which Cotton “introduced Selden to the Tower and other repositories of records, probably very soon after he arrived in London.”⁸ Through his initiation by Cotton into “the immensely rich

1 Fry, “Selden, John”; Haivry, p. 9, 12 – 13; Hunneyball, “Selden, John”; Toomer, p. 1 – 2; Berkowitz, p. 13. 2 Aubrey quoted in Haivry, p. 35, fn. 65. 3 Bayley, p. 241; Hunneyball, “Selden, John”; Haivry, p. 13; Toomer, p. 3 – 5; Berkowitz, p. 15 – 16. 4 Haivry, p. 13, 15; Toomer, p. 7, 9; Berkowitz, p. 16 – 17. 5 Bayley, p. 241. 6 Haivry, p. 15; Fry. 7 Berkowitz, p. 17– 19. 8 Hunneyball, “Selden, John”; Fry; Toomer, p. 24 – 25. https://doi.org/10.1515/9783110791464-020

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(if ill-organized) repositories of English archives,” Selden was exposed not only “to the intricacies of how they were arranged, but to the idea of searching original documentary sources for the writing of history.”⁹ This archival orientation would come to distinguish Selden’s scholarship: as Berkowitz notes of his legal-historical works, “for Selden the prime store house of historical information was the archival stock of England.”¹⁰ Christianson marvels at Selden’s “mastery of a prodigious number of English medieval manuscripts” including “Domesday Book, the patent rolls, the close rolls, and the Rolls of Parliament” (a wealth of research especially showcased in the second edition of Titles of Honor in 1631), as well as the later State Papers.¹¹ In particular, Selden’s focus on the public records would inspire other historical investigators, such as William Prynne.¹² In the course of this transcription work for Cotton, “Selden became closely attached to Sir Robert and his family, benefiting from his patronage and wide network of connections”; he was (eventually) given unfettered access to Cotton’s peerless collection for his own research.¹³ Cotton probably also integrated Selden into his intellectual milieu, consisting of “interlocking circles of poets, lawyers, historians, and antiquaries” – including members of the Society of Antiquaries such as Camden, who would be the key influence on his early writings – so that Selden became involved in the informal exchanging of “historical ideas and information.”¹⁴ Additionally, by visiting “Cheapside taverns,” Selden also became acquainted with literary luminaries such as John Donne, Ben Jonson, and probably Shakespeare himself, who lived in London until 1611; Selden was a guest at the party that Jonson gave in 1605 to celebrate his own release from imprisonment for having made satirical remarks about Scotsmen in the co-authored play Eastward Ho! ¹⁵ According to Jokinen, shortly after his call to the Bar in 1612 Selden was appointed to keep the records of the Inner Temple itself; if so, this was a foreshadowing of a function that he would later perform for the national records in a time of war.¹⁶ Selden’s conservative love of “the peace and quiet of ordered society” – a moderate orientation which he shared with Cotton – was balanced by a fierce determination to defend liberty, which, he believed, “could only be preserved by knowl-

9 Toomer, p. 27. 10 Berkowitz, p. 42. 11 Christianson, Discourse on History, p. 205 – 207. 12 Christianson, Discourse on History, p. 288 – 289. 13 Haivry, p. 18; Toomer, p. 25 – 26. 14 Haivry, p. 18; Toomer, p. 22, 24. 15 Haivry, p. 17– 18; Fry; Toomer, p. 13; Berkowitz, p. 23 – 24. 16 Jokinen, “John Selden.”

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edge of law, custom, and history.”¹⁷ This brought with it a rigorously forensic approach to research, so that his works “set new standards in England for textual analysis,” verifying dates and documents and exposing received error; Tite notes the unprecedented “quality of his investigations” and the precision with which he cited sources.¹⁸ Selden’s historical scholarship was wide-ranging and extremely advanced, deploying “philology, diplomatics, and palaeography.”¹⁹ These techniques were enhanced “by deep acquaintance with the intricate archaeology of the English common law.”²⁰ Indeed, Selden described his own research process “as a ‘kind of trial,’” drawing on the philological techniques of Continental humanists: it involved the painstaking comparison of different manuscript copies of primary sources to identify transcription errors and excavate the original source, and a sophisticated approach to dating documents which he christened ‘synchronism,’ highlighting anachronistic phrases in putative ancient records.²¹ Though history and politics were inseparably intertwined in Selden’s works, which approached history as “the study of problems,” he was famously uncompromising on the matter of historical truth, insisting that narrative histories had to correspond to the documentary evidence, while he also attempted to avoid anachronism by beginning at a past date and working forwards, thereby creating a new approach to history.²² In his preface to the famous Historie of Tithes, dedicated to Cotton (on whose collection of mediaeval materials he had drawn heavily for the work, and who may have assisted him in researching it), Selden emphasises the importance of returning to the primary sources, or “fountains,” a point that he had already made in Titles of Honor. ²³ Simple-minded antiquarian research for its own sake soon loses itself in detail (“the too studious Affectation of bare and sterile Antiquitie, which is nothing els but to be exceeding busie about nothing, may soon descend to a Dotage”), but on the other hand Selden also disparages the superficial approach to historical research: “the Neglect or only vulgar regard of the fruitfull and precious part of it, which giues necessarie light to the Present in matter of State, Law, Historie, and the understanding of good Autors, is but preferring that kind of Ignorant Infancie, which our short life alone allows us, before the many

17 Fussner, p. 276. 18 Hunneyball, “Selden, John”; Tite, “Introduction,” The Early Records of Sir Robert Cotton’s Library,” p. 13. 19 Fussner, p. 277. 20 Berkowitz, p. 49. 21 Berkowitz, p. 44 – 45; Christianson, Discourse on History, p. 29. 22 Fussner, p. 276 – 277; Toomer, p. 69; Christianson, Discourse on History, p. 288. 23 Selden, The Historie of Tithes; Toomer, p. 261 – 262; Berkowitz, p. 42.

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ages of former Experience and Observation, which may so accumulat yeers to us as if we had livd even from the beginning of Time.”²⁴ Selden, with his profound learning, “was one of the great common lawyers of the day […] the likeliest member of the younger generation to inherit the mantle of Sir Edward Coke.”²⁵ His extraordinary command of Continental humanist legal-historical methods and “comparative law” is one of the most important contraindications to Pocock’s theory of the insular English common-law mind.²⁶ Selden’s scholarship and constitutional engagement were intertwined, since it was his “profound mastery of Continental humanist legal-historical methods and perspectives” that enabled him “to reassert” ancient English liberties, of which the Petition of Right was an enduring legacy.²⁷ The great strengths which would serve Selden well in his Parliamentary career were his profound familiarity with “the charters, statutes, and legal documents of medieval England,” and his “cosmopolitan humanist perspective.”²⁸ His interests were famously wide-ranging: though he does not seem to have travelled, he is said to have mastered “Arabic, Aramaic, Chaldean, Ethiopic, French, German, Greek, Hebrew, Italian, Latin, Old English, Persian, Samaritan, and Spanish,” the subject of a poetic encomium by Ben Jonson (“you that have been/Ever at home, yet have all countries seen”).²⁹ His chief fame for most of the twentieth century was as a leading Orientalist and Hebraist, which was “widely acknowledged as the glory of his learning.”³⁰ In this sphere he was the pre-eminent Gentile expert in England and possibly in all of Europe (Berkowitz notes critically that he lacked “a formal Talmudic dialectic” and was overly reliant “on rabbinic sources,” but singles out his expertise in comparative analysis).³¹ Selden’s approach to Judaism was shaped by a spirit of respectful curiosity centuries ahead of his time, and he was addressed honorifically by one Jewish correspondent as “morenu harav rav Seldenus” (“our honoured teacher and rabbi”).³² Indeed, Selden’s later reception by modern Jewish scholars and rabbis – who likewise did him the honour of referring to his ‘Rabbinical writings’ – was often so rapturous as to totally vitiate academic objectivity, thereby serving

24 25 26 27 28 29 30 31 32

Selden, The Historie of Tithes. Kishlansky, “Tyranny Denied,” p. 56. Ziskind, “John Selden: Criticism and Affirmation of the Common Law Tradition,” p. 23, 26. Christianson, Discourse on History, p. 5 – 6. Christianson, Discourse on History, p. 87. Tarlton Law Library, “John Selden.” Haivry, p. 322. Haivry, p. 322; Berkowitz, p. 293. Herzog, “John Selden and Jewish Law,” p. 236; Haivry, p. 322 – 323.

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to highlight the rarity of his open attitude.³³ For example, in a review of the 2006 book-length acclamation of Selden by Jason P. Rosenblatt (Renaissance England’s Chief Rabbi), Biberman drily describes Rosenblatt’s ecstatic portrayal of Selden as “a beacon to those like him, beautiful souls,” who hope to share eternity with those outside their religion, and notes the significant fact that Rosenblatt had dedicated the book to his own rabbi father.³⁴ Selden’s position contrasts starkly with the attitudes of his contemporaries, such as the virulent anti-Semitism of Puritan firebrand William Prynne, his successor as Keeper of the Tower records. However, this does not mean that Selden’s other writings, though they have received less attention (until recently) than his remarkable bridging of the Jewish and Christian worlds, were not of critical importance. Selden has been called “the ghost in the machine” of English seventeenth-century thought, the chief mover on many subjects and the invisible antagonist of Hobbes’ Leviathan — so central, but simultaneously so challenging, that there developed a tacit academic agreement to largely ignore him.³⁵ One of the problems is that “his densely knotted, crabbed neo-Latin is almost unreadable today,” described often as “rough” and lacking in elegance.³⁶ Unless a scholar had a very special motivation for grappling with Selden – as did Jewish academics – the effort was simply unsustainable. Selden’s two great areas of expertise, Jewish studies and constitutionalism, were intimately connected. By adopting a comparative approach to the defence of the English constitution and in particular by drawing on the Jewish legal tradition, Selden provided “for the first time a wider, comparative and comprehensive theoretical framework for the justification of English (and indeed any) constitutional and legal particularism” than the previously familiar “internal, sometimes literally insular, arguments.”³⁷ In the process, he developed the famous articulation of Anglo-Saxon constitutionalism, “continuity through change,” that would influence later thinkers such as Edmund Burke.³⁸ Indeed, it is worth noting Sharpe’s observation concerning English antiquaries, made with specific reference to Cotton, that their political thought was proto-Burkean, like their approach to history – to the extent that they saw England’s development as characterised by a slow evolution consisting of innumerable small adjustments over time, based on the accumulation of experience and in reaction to new circumstances.³⁹ The comparative

33 34 35 36 37 38 39

Herzog, p. 236 – 245. Biberman, “Review (Untitled),” p. 74. Biberman, p. 73 – 74. Biberman, p. 75; Toomer, p. 70. Haivry, p. 5. Haivry, p. 5. Sharpe, Sir Robert Cotton, p. 224 – 225.

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approach to the history of law and its institutions allowed Selden to transcend the common law’s limitations in historical analysis and ultimately strengthened his faith in the nobility of the common-law vocation and in “the rule of law.”⁴⁰ In the process, he succeeded in melding “ancient constitutionalism with an acute sense of the law’s adaptability through time.”⁴¹ A brief discussion of selected legal-historical writings by Selden provides useful context for his later conflict with the government. The first period of Selden’s historical output, 1605 – 1628, is described by Berkowitz as “devoted almost wholly to English history, with emphasis on legal and constitutional aspects” – most of the works appeared prior to 1615, before his legal career took off and consumed much of his energy.⁴² Selden’s first, two-volume work, with the grand title Analecta Anglobritannica (variously titled Analecton Anglobritannicon), was completed by 1608.⁴³ Based on the model provided by French Huguenot ancient constitutionalist Francois Hotman’s Francogallia, it traced the development of the government of “southern Britain” chronologically from ancient times to the Norman Conquest, with a particular focus on English institutions and laws, using “the works of ancient, medieval, and modern historians and occasionally quoting from ancient legal documents” – so that it was dependent more on secondary than on primary sources.⁴⁴ It contained an equivocal portrayal of the Norman Conquest that did not commit to either side of the rupture vs. continuity debate.⁴⁵ The work is notable for its familiarity with the civil and canon law traditions on the one hand, unusual for a common-law jurist, and its tracing of the twelve-member jury (and other legal institutions) to Anglo-Saxon England on the other.⁴⁶ This was a project of legal and cultural recuperation with clear relevance for the coming debates surrounding the Ancient Constitution. This work was followed by Selden’s far more developed analysis of constitutional history, Jani Anglorum Facies Altera (referred to by Toomer as Janus Anglorum…) of 1610, which filled out the previous work’s outline in its investigation of the origins of English laws.⁴⁷ Although the work was written in the context of James’s threatened insertion of common-law England and civil-law Scotland into one “perfect union,” and developed the familiar Hotmanian framework “into a

40 41 42 43 44 45 46 47

Fussner, p. 277– 278. Goldie, p. 22. Berkowitz, p. 33, 51. Christianson, p. 273; Bayley, p. 241; Toomer, p. 72; Berkowitz, p. 33 – 34. Christianson, p. 273; Toomer, p. 74; Christianson, Discourse on History, p. 13 – 14. Christianson, p. 273; Toomer, p. 86 – 87. Toomer, p. 81 – 82, 86. Haivry, p. 15; Christianson, p. 273; Toomer, p. 88; Berkowitz, p. 34.

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solid bulwark against the easy amalgamation” of the two legal systems, it is not clear how far it was meant to be politically oppositional.⁴⁸ It was dedicated to Robert Cecil, Earl of Salisbury, whose ‘Great Contract’ to resolve the conflict over revenue-raising had just failed to pass the Commons, while James had recently assured his new English subjects of his regard for the common-law tradition.⁴⁹ Selden’s dedication to Cecil may have been an attempt to secure his patronage, thwarted by Cecil’s death two years later.⁵⁰ This first major English constitutional history became the pre-eminent work on the subject until the Civil War began in 1642.⁵¹ Selden’s section on ancient Britain drew heavily on Tacitus and Caesar and filled in missing pieces through analogy from the Gallic and Germanic contexts, to provide a portrait of the ancient British constitution (far older than the Anglo-Saxon iteration) as characterised by a diffuse power structure.⁵² In an echo of Tacitus’s Germania, the armed warriors of the ancient Britons met in official assemblies presided over by the monarchs of ‘kingdoms’ so tiny that they were really manors, to consult and decide on matters of public concern, such as relations including “war and peace” with other states.⁵³ Meanwhile the druids combined their religious role with a common law-like judicial function, gathering in courts to interpret existing oral (customary) laws and make new ones, apparently with no legislative impetus from the monarch, whose power was thus strictly limited and predominantly executive – here Selden simply transposed the Gallic Druids’ practices as described by Caesar.⁵⁴ This account of what Christianson calls “mixed aristocracy” was designed to preempt any argument that England’s share in this ancient British constitution was derived from any king, and also to exclude any alien Roman imperial influence.⁵⁵ The Anglo-Saxon invasions finally brought “true monarchy,” but it was combined with a proto-Parliamentary approach to law-making, so that Selden thereby conjured up the vision of the Crown-in-Parliament.⁵⁶ Overall, Christianson sees the work’s main focus as the portrayal of England as a “mixed monarchy,” the principle that would animate Selden’s political-constitutional activism in Parliament.⁵⁷ 48 49 50 51 52 53 54 ry, 55 56 57

Christianson, p. 273 – 274. Christianson, p. 273 – 274. Toomer, p. 88. Christianson, “Young John Selden and the Ancient Constitution,” p. 274. Christianson, “Young John Selden,” p. 274 – 275. Christianson, “Young John Selden,” p. 274 – 275; Toomer, p. 92. Christianson, “Young John Selden,” p. 274 – 275; Toomer, p. 93; Christianson, Discourse on Histop. 19. Christianson, “Young John Selden,” p. 274 – 275; Christianson, Discourse on History, p. 18 – 19, 83. Christianson, “Young John Selden,” p. 276 – 277. Christianson, Discourse on History, p. 7, 17.

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In addition to early historians such as Bede, the pseudo-Ingulf, and William of Malmesbury, Selden analysed collections of Anglo-Saxon law codes in original and published forms (with particular recourse to Lambarde’s collection) for their formulaic references to consultation with the bishops, aldermen and “elders and wise men of my people” which preceded the proclamation of any given law, and thus concluded that the Germanic wapentake had been imported in the form of the Witenagemot.⁵⁸ Through his analysis of these law codes, Selden argued for continuity despite challenges from the introduction of Christianity and the Viking invasions, concluding that Canute, for example, had simply confirmed the pre-existing laws.⁵⁹ A particularly interesting example of Selden’s use of primary sources is his citing of the Parliament rolls from the reign of King Stephen as evidence – in the form of a statement by the barons in Parliament – for the proposition that “the Roman civil law never held sway in England,” as well as for the supremacy of the Crown-in-Parliament.⁶⁰ He visited the Tower repository to cite “the original charter roll on the decree of William separating ecclesiastical and lay courts,” as well as “the Parliament Roll 11 Rich. II,” while he also seems to have used the original of Domesday Book for his quotations (and Year Books from the reigns of Edwards I and II from his own private collection), in addition to sources from Cotton’s collection.⁶¹ Christianson portrays Selden’s account of the Conquest as consistently nuanced: on the one hand the Conqueror introduced Continental feudal relations, but on the other, for cynical reasons, he allowed the Anglo-Saxons to keep the bulk of their common law, notably “the fundamental form of the Saxon constitution.”⁶² In a later analysis Christianson admits that Selden in this work first creates “a great deal of ambiguity” over the rupture-vs-continuity question but then argues “that the Anglo-Saxon constitution prescribed bounds to and legality upon the Conquest,” so that, for example, William was forced to use Parliament for legislating.⁶³ Further, Selden protected the English common-law tradition against the universalism of civil law by extending his particularist theory to European polities in general, arguing that “all law” consists of “customary adjustments to the founding ‘state’ or distribution of powers within each particular jurisdiction,” in a remarkable comparative, non-chauvinistic analysis that recognised the uniqueness of

58 Christianson, “Young John Selden,” p. 276; Toomer, p. 92, 95; Christianson, Discourse on History, p. 21. 59 Christianson, “Young John Selden,” p. 277– 278; Christianson, Discourse on History, p. 21 – 24. 60 Christianson, “Young John Selden,” p. 281. 61 Toomer, p. 96, 102. 62 Christianson, “Young John Selden,” p. 280. 63 Christianson, Discourse on History, p. 12, 27.

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other states and England’s instantiation of a common (but always individually differentiated) pattern.⁶⁴ Toomer, by contrast, suggests that Selden does not commit himself to “a particular interpretation of English constitutional history,” but instead he identifies a sophisticated portrayal of the Conquest in Selden’s analysis, as neither complete rupture nor total continuity.⁶⁵ The shorter English version of this work, England’s Epinomis, which Selden did not intend to publish and which circulated only in handwritten form, concludes with a paean to Magna Carta, “‘the main freedom of the English Common-wealth […] since more than thirty times, by the true authority of the State, in their High-court, confirmed.’”⁶⁶ Also in 1610, Selden published Duello, a tract tracing the origins of trial by combat (or duel) to the Normans, a conclusion which would be confirmed by later legal historians including F. W. Maitland; it was a standard work on the subject for centuries, but Toomer finds it “exceedingly slight” and under-researched, failing to draw adequately on the plea rolls, which suggests to Toomer that when it was written in 1609 Selden did not yet share Cotton’s mastery of the public records.⁶⁷ Selden’s careful (and corrective) antiquarian notes to Michael Drayton’s 1612 patriotic historical and mythical verse work Poly-Olbion attribute the murder of Thomas Becket to his “diminution of common law liberties, and endevored derogation, for maintenance of Romish usurped supremacie,” and excuse King John’s abuses of power on the ground that the Church was attempting to undermine him.⁶⁸ He also sketches the development of Danegeld and discusses “whether Roman law held in early Britain,” returns to the thorny question of the Conquest as legal rupture in another balanced and scholarly discussion which suggests that the Conqueror’s innovation was to impose a universal feudal system on England, and provides a detailed comparison of King John’s original version of Magna Carta and the later published version of “the Statute Books.”⁶⁹ In this work Selden displayed greater expertise in primary source research, citing plea rolls and many other “unpublished manuscript sources” as a matter of course, in research extending beyond the Tower and the Cotton collection – he was already making trips to Oxford to use sources in the Bodleian and in Thomas Allen’s private collection.⁷⁰

64 Christianson, Discourse on History, p. 12 – 13. 65 Toomer, p. 98 – 99. 66 Toomer, p. 103 – 104. 67 Stenton, p. 271; Fry; Toomer, p. 104 – 108; Berkowitz, p. 34; Christianson, Discourse on History, p. 13. 68 Toomer, p. 108 – 109, 118; Berkowitz, p. 39. 69 Toomer, p. 120 – 122. 70 Toomer, p. 121 – 123.

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1614’s Titles of Honor, which investigated the historical background of various aristocratic titles not only in England, but also in various foreign countries, testified to deep and wide-ranging comparative research – for example, on the history of the English “Palatine counties,” Selden “quotes abundantly from the Records” – and it made his name as a scholar and legal expert.⁷¹ By this point, when Selden uses primary sources to illuminate English subjects, “the discussion is often innovative […] and presents apt examples drawn from the Records (of which he already has a formidably wide knowledge).”⁷² However, while Stenton comments on the extraordinary amount of research in the twelfth-century pipe rolls that Selden conducted for this project, Toomer clarifies that this research was actually carried out for the second, revised edition of the work, published in 1631, which drew on impressive quantities of primary sources, especially from the public records and including a “series of charters of creation of earls […] drawn mainly from the Charter Rolls.”⁷³ (Selden’s next study of an English legal institution focussed on the great office of state of Lord Chancellor, an homage to Francis Bacon, who was soon to assume the title.)⁷⁴ Selden’s 1616 edition of Fortescue’s De Laudibus Legum Angliae has already been briefly discussed in the context of Fortescue’s (and Coke’s) doctrine of antiquity without rupture.⁷⁵ The work emphasises Selden’s fundamental belief that despite changes to institutions, laws, and customs, “the constitution […] preserved the essence of its earlier forms,” notably the Ancient Constitution’s equilibrium between the subject’s liberties and the monarch’s prerogative, which becomes clear in his famous metaphor of the continually refurbished ship.⁷⁶ This analysis again emphasised that every European kingdom had “its own ancient constitution,” with its own particular balance of powers and legislative method, and in the process “revealed the first glimpses of a new theory of natural human rights.”⁷⁷ The work is also interesting for this study’s purposes because, for the first time, it makes clear that Selden understood the clause in Magna Carta “Nullus liber homo capiatur, vel imprisonetur […] nisi per legale judicium parium suorum per legem terrae” as a reference to jury trial.⁷⁸ Later in Selden’s Dissertatio ad Fle-

71 Bayley, p. 241; Haivry, p. 19 – 20; Toomer, p. 126, 139; Berkowitz, p. 34; Christianson, Discourse on History, p. 37, 55. 72 Toomer, p. 156. 73 Stenton, p. 271; Toomer, p. 53, fn. 142, p. 165 – 166. 74 Berkowitz, p. 34 – 35. 75 Toomer, p. 174 – 175. 76 Hunneyball, “Selden, John”; Christianson, Discourse on History, p. 61, 84. 77 Christianson, Discourse on History, p. 62. 78 Toomer, p. 185.

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tam published in 1647 – his commentary on the mediaeval English law treatise Fleta, in which he discusses the history of civil/Roman law in England but highlights the devotion of the English people to the common law and its ultimate ascendancy – he elaborates that the clause also “means ‘in conformity with the Common Law’” to the exclusion of the “Civil Law.”⁷⁹ Selden’s 1616 commentary on two treatises attributed to Ralph de Hengham is characterised by the consistent view “that the law is continuous, but also continuously developing,” and demonstrates that at thirty-one he was “a master of the literature and history of English law and of the records relating to it.”⁸⁰ While it is clear that Selden’s early legal and constitutional work contained much that could have annoyed James, it transpired at the time of Selden’s first contretemps with the Crown that despite his great fame in educated society and works dedicated to Francis Bacon and Cecil, the King had never heard of him.⁸¹ Ironically, the work which caused Selden’s confrontation with James was instead one of ecclesiastical-legal history, 1618’s Historie of Tithes, described by Berkowitz as “one of the triumphs of Renaissance learning” in which “humanist historiography reaped where Lorenzo Valla had sown.”⁸² The work interwove Jewish, classical, and English history to question the Church of England’s new doctrine of “the divine right to tithes, as inherited by the Christian through the Jewish priesthood from the patriarchal ages,” which, the Church increasingly felt, was necessary to secure its position.⁸³ In this work, Selden demonstrated that the collection of tithes had been administered throughout history “by the secular, customary laws of the countries concerned” – in the case of England, the jurisdiction on “lay property rights in tithes” had always lain with the common law.⁸⁴ Despite Selden’s neutral approach to the subject, based on a sober consideration of the balance of historical evidence, the work provoked “a species of the most rancorous and mean resentment” on the part of various leading divines, including the Bishop of London, who oversaw the censorship of the presses and suppressed the work’s first run although it had been approved by his own chaplain.⁸⁵ Selden did not help matters when he later added an indignant preface claiming that the book was “a mere nar-

79 Toomer, p. 185, 208 – 209. 80 Toomer, p. 190. 81 Haivry, p. 22 – 23. 82 Haivry, p. 23; Berkowitz, p. 35. 83 Bayley, p. 242; Hunneyball, “Selden, John”; Haivry, p. 25; Fry; Toomer, p. 257– 258; Christianson, Discourse on History, p. 65 – 66. 84 Hunneyball, “Selden, John”; Fussner, p. 285. 85 Bayley, p. 242 – 243; Fry; Haivry, p. 23; Hunneyball, “Selden, John”; Toomer, p. 263 – 264.

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rative of the History of Tythes” and cited previous clerical attempts to suppress scholarly advances by “Roger Bacon, Reuchlin, Budæus, and Erasmus.”⁸⁶ On its publication in unlicensed form in 1618 the clergy complained to James, who quite liked the notion of a divine right to tithes, perhaps seeing in it an analogue to his own ongoing financial quest.⁸⁷ The viciousness of the clerical reaction may seem surprising, but more was at stake than simply the immediate tithes situation: Selden had clearly revealed “for the first time” the gulf “between historical reason and historical faith.”⁸⁸ Selden ignored summonses from various bishops to come and explain himself, but he had no choice but to attend a series of interviews with James beginning in the last month of 1618.⁸⁹ During these discussions, which seem to have been a bewildering and unpalatable mixture of hectoring, intellectual garrulousness, and grandstanding on James’s part, the King enjoyed showing off his erudition while discussing Selden’s book, and forced Selden to write “penitential compositions” known as “palinodes” on three topics.⁹⁰ These were the significance “of the number 666,” what Calvin had written about the Book of Revelation, and the dating of Christ’s birthday to the 25th of December.⁹¹ (Hunneyball interprets this homework as evidence that James was impressed with Selden’s performance during these interviews, but it is perfectly possible that the monarch was motivated by contradictory impulses.)⁹² Selden delivered these to James along with an explanation for his writing of the Historie. ⁹³ Selden was also forced to appear before the Privy Council and the Court of High Commission to account for himself, but he managed to avoid disavowing his conclusions in the Historie by simply apologising for his mistake in having published it, thereby escaping imprisonment or trial.⁹⁴ The Court of High Commission also prohibited him from defending himself or the work against his adversaries.⁹⁵ However, Selden was unbearably goaded by various attacks from churchmen (supported by the King) into circulating a defence of his work in manuscript form, and there was a third and final meeting with James in which he was harshly forbidden from answering rebuttals of the work: indeed, Royal chaplain Richard Mountagu

86 87 88 89 90 91 92 93 94 95

Fry; Toomer, p. 266 – 267. Bayley, p. 243; Toomer, p. 264 – 265; Berkowitz, p. 36. Fussner, p. 281, 293. Fry; Haivry, p. 23; Toomer, p. 305. Haivry, p. 23; Toomer, p. 305 – 306; Berkowitz, p. 36. Haivry, p. 23; Fry; Toomer, p. 306. Hunneyball, “Selden, John.” Haivry, p. 23; Fry; Berkowitz, p. 36. Haivry, p. 23; Toomer, p. 307; Berkowitz, p. 36. Bayley, p. 243.

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(or Mountague), with James’s encouragement, was writing an attack stating, among other claims, that Selden was an emissary of Satan.⁹⁶ James now prohibited Selden and his friends from defending Selden’s work against Mountagu, on pain of imprisonment.⁹⁷ Long before the developments which gave rise to the Petition of Right, Selden thus had no reason to love the Stuart monarchy. The incident did, however, highlight Selden’s talents to a wider public, especially his ability to apply his scholarly analysis of precedents to political issues.⁹⁸ In fact, the scandal made him famous far outside scholarly and legal circles, and fostered his rapid social progression into the aristocratic and Parliamentary spheres; as their legal advisor, he became particularly close with the Earl of Kent and Elizabeth, Countess of Kent, with whom he later lived openly after the Earl’s death in 1639.⁹⁹ Selden had another disagreeable experience of official censorship in 1619 when he tried to publish a work called Mare Clausum, written (according to Hunneyball) in response to an order from James to respond to the Dutch claims contained in Grotius’s Mare Liberum and assert English sovereignty over the island’s coastal waters.¹⁰⁰ First, James demanded alterations to the section on “the northern seas” to avoid displeasing the King of Denmark (a relative and important creditor of his), with which Selden complied, but chicanery by James’s favourite Villiers (now Lord Admiral) eventually prevented the book from being approved for publication at all.¹⁰¹ This may have contributed to Selden’s animus against Villiers, but it is important to note that Selden’s later involvement in the parliamentary campaign against Villiers had a constitutional component, motivated by his defence of the constitution, which should bind “the king’s servants to act […] in proper and appropriate ways.”¹⁰² Selden was first elected MP in 1624, representing Lancaster.¹⁰³ However, his archival research for Parliament began much earlier, so that the real beginning of his Parliamentary involvement can be dated to 1621.¹⁰⁴ In that year, as previously noted, the House of Lords called upon him for assistance, and he compiled a hand-

96 Haivry, p. 23 – 24; Toomer, 307– 309; Berkowitz, p. 37– 38. 97 Bayley, p. 243; Haivry, p. 24; Berkowitz, p. 38. 98 Haivry, p. 35. 99 Haivry, p. 26; Toomer, p. 257, 311 – 313; Berkowitz, p. 30 – 31. 100 Hunneyball, “Selden, John”; Haivry, p. 25; Berkowitz, p. 51 – 54. 101 Hunneyball, “Selden, John”; Haivry, p. 25; Toomer, p. 389; Berkowitz, p. 54 – 55. 102 Berkowitz, p. 55; Christianson, Discourse on History, p. 8, 85. 103 Haivry, p. 37– 38; Hunneyball, “Selden, John”; Toomer, p. 326; Berkowitz, p. 85; Christianson, Discourse on History, p. 92. 104 Fry; Toomer, p. 321.

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book called the Book of Precedents (otherwise known as the Book of Privileges and later published in 1642 as Privile(d)ges of the Baronage), thereby assisting the Lords to recover their “judicial functions,” notably impeachment for the proceedings against Bacon.¹⁰⁵ These precedents predominately included sources from the Parliament rolls, including mediaeval precedents, but also “many other kinds of records.”¹⁰⁶ On the 27th of March 1621 the House of Lords voted compensation to Selden and his assistant William Hakewell for their work in searching records and taking notes on them, and further ordered that they should copy the precedents and notes onto parchment, to be archived (apparently in the House).¹⁰⁷ During the crisis that led to the Protestation of December 1621 (provoked by James’s assertion on the 14th of December that the Commons’ privileges were held of Royal grace and not inherited through binding common-law precedent), Fry suggests that Selden took part in hunting precedents for the Parliamentary arguments.¹⁰⁸ (Berkowitz, on the other hand, states that there was no connection between Selden and the Protestation.)¹⁰⁹ In the same year Selden, who held shares in the Virginia Company and was its legal advisor, guided the drafting of one of the most important early constitutional documents in North America, the Virginia Colony’s Ordinance and Constitution.¹¹⁰ It is unclear whether it was this involvement, the Book of Precedents (the reason suggested by Hunneyball), Selden’s (hypothetical) contribution to the Protestation via his research, or a combination of these factors which prompted James to arrest and imprison him in 1621, without charge and with a vague mention of “speciall causes & reasons of State knowne unto himself.”¹¹¹ Selden himself confessed to being baffled by the arrest, though three decades afterwards he stated that it was because of his legal counselling of the pro-liberty side in Parliament.¹¹² An eighteenth-century book by John Thane contains the anecdote that when asked by the House of Lords whether James’s assertion that Parliament’s privileges had originally been granted by the monarch was true, Selden “gave his opinion to the contrary,” and this resulted in his arrest by the Sheriff of London.¹¹³ Toomer believes that the reason is revealed by the minutes of the Privy Council’s interrog-

105 106 107 108 109 110 111 112 113

Haivry, p. 36; Toomer, p. 322; Berkowitz, p. 59; Christianson, Discourse on History, p. 88 – 89. Toomer, p. 322; Healy, p. 273. Berkowitz, p. 58 – 59. Fry; Berkowitz, p. 63. Berkowitz, p. 63. Haivry, p. 34; Toomer, p. 320; Berkowitz, p. 55 – 57. Haivry, p. 37; Toomer, p. 324. Haivry, p. 37; Hunneyball, “Selden, John”; Toomer, p. 324 – 325; Berkowitz, p. 62. Thane, British Autography, Vol. 2, p. 40.

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ation of Selden in mid-July, in which the only question posed was whether Selden had tried to claim the right of judicature for the Commons – an accusation which he vociferously denied – and Berkowitz is similarly definite that the Crown had mistakenly blamed Selden for the Commons’ usurpation of criminal jurisdiction in Floyd’s Case.¹¹⁴ Haivry states that Selden avoided implication in the Protestation affair completely, and that his arrest and imprisonment took place in June (the date also given by Hunneyball, Toomer, and Berkowitz), after James had adjourned Parliament.¹¹⁵ As in the later case of Coke, predictably, and despite Selden’s pleas to Sir George Calvert to keep “my papers (which are the labours of many years, and a great part of the furniture of my study in my profession, among which there is nothing that was written for secret) […] safe,” James had Selden’s collection of manuscripts temporarily seized during his imprisonment, including his research notes and draft version of the Book of Precedents; perhaps he was looking for evidence of his own suspicions, or he feared that Selden would otherwise further concern himself with constitutional questions.¹¹⁶ Selden was imprisoned for approximately “five weeks,” and was released following the interventions of his personal friends the Bishops of Winchester and Lincoln.¹¹⁷ During his imprisonment Selden was allowed two volumes, including a history in manuscript by the Saxon monk Eadmer, of which he published a critical edition in 1623 as “an account of public affairs during the three first reigns succeeding the conquest,” showcasing Eadmer’s description of the English court system during that time and adding his own learned discussion of Domesday Book.¹¹⁸ In the introduction he explained how to write English history and “stressed the fundamental importance of the Records, a resource largely unexploited by contemporary historians.”¹¹⁹ Following Selden’s release, his papers were still being held by the Crown and were given back only when the Lords, discovering that they included the research materials that Selden needed to finish his work on Parliamentary judicature, protested this outrage as a violation of the House’s privilege, and the papers (though, importantly, not all of them, as a Lords subcommittee soon discovered) were returned and Selden was able to complete the report.¹²⁰ When the Lords attempted to recover the still-withheld papers from Selden’s collection, the Crown apparently denied

114 115 116 117 118 119 120

Toomer, p. 325; Berkowitz, p. 59 – 61. Haivry, p. 37; Toomer, p. 324; Berkowitz, p. 61. Haivry, p. 37; Toomer, p. 325. Haivry, p. 37; Toomer, p. 325; Berkowitz, p. 28 – 29. Bayley, p. 244; Haivry, p. 37; Toomer, p. 325; Berkowitz, p. 40. Toomer, p. 809. Hunneyball, “Selden, John”; Berkowitz, p. 62.

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this request on the ground that the papers concerned “matters of state,” and asserted that the Crown had just as much a right to seize private papers as the House of Lords did.¹²¹ On the 15th of December, the Archbishop of Canterbury ceremonially presented the report to the Lords and requested that it be formally bound and kept in the House “as memorials whereunto men may resort as occasion shall require, and make use thereof,” and Berkowitz notes that this meanwhile heavily-used anthology is still in the Lords’ archive today.¹²² The arrest and imprisonment do not seem to have seriously dented Selden’s standing. On the 14th of February 1622 Bacon wrote to him for advice on “the validity of the judgments given in the House of Lords during the late parliament.”¹²³ Indeed, Selden’s rapid ascent as a lawyer in such a short space of time was extraordinary: Prynne attributed it to the great prestige that Selden derived from his deep knowledge of the records, and advised law students to attain similar erudition, as this would “enable them to outshine others of their robe unversed in the Records, as far as the sun and moon outshine the stars.”¹²⁴ While Prynne’s adoration of the records may have led him to somewhat exaggerate the standing that they conferred, Berkowitz suggests that this scholarly dimension was indeed a novel way for English lawyers to gain prominence.¹²⁵ Over the following years, despite the experience of imprisonment, Selden continued to perform research for Parliament. As previously noted in the section on Robert Cotton, in 1624 he and Cotton were asked to research the precedents for a constitutionally-admissible disbursement body to administer the monies raised following James’s request for a rapid vote of subsidy, an assignment which seems to have come about after Selden conducted research in the Parliamentary journals on his own initiative and gave a speech in which he stated that this research had showed him that “the pettiest business hath not been so precipitated.”¹²⁶ With his fearless advising of Parliament, he was taking a real risk.¹²⁷ Hunneyball, Berkowitz, and Christianson provide detailed accounts of Selden’s other researches and involvements after becoming an MP in 1624, especially concerning patents

121 Berkowitz, p. 62. 122 Berkowitz, p. 63. 123 Fry; Berkowitz, p. 64. 124 Berkowitz, p. 66 – 67. 125 Berkowitz, p. 66. 126 Haivry, p. 38; Hunneyball, “Selden, John”; Berkowitz, p. 86. 127 Barbour, John Selden: Measures of the Holy Commonwealth in Seventeenth-Century England, p. 156.

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and monopolies, and matters touching the independence of Parliament.¹²⁸ He was also active in the campaign to impeach Villiers.¹²⁹

The Five Knights’ Case and records forgery A great highlight of Selden’s career and of English constitutional history, leading to the Petition of Right of 1628, is the Five Knights’ Case (otherwise Darnel’s Case) of 1627, one of his rare court appearances as legal counsel.¹³⁰ The case and its aftermath illustrate the key importance of the evidential weight of a ‘record’ and the formal requirements to make a document a ‘record.’ Guy notes that in this case, what seemed to be “minor archival details” would constitute “the stuff of which history is made.”¹³¹ The arguments revolved around two main points: vague “matters of state” as a prerogative ground for imprisonment, and legal-archival requirements for effective enrolment of a document as a ‘record’ and therefore as evidence. After Charles dissolved Parliament in 1626 following its attacks on Villiers, he resorted to the ‘Forced Loan,’ levied on all taxpayers without sanction of Parliament, in order to raise money for the war effort against his Catholic enemies.¹³² Five London knights were put under house arrest for refusing the loan and on the 3rd of November 1627, they applied “to the court of King’s Bench for a writ of habeas corpus” to be bailed into its custody and thus have their cases heard under the common law.¹³³ Selden was designated by the court as the legal representative for one of the prisoners, Sir Edmund Hampden.¹³⁴ Haivry observes that in the court hearing Selden “approached his argument not only as an advocate but also as historian and constitutionalist.”¹³⁵ He was unsuccessful in his painstaking citation of precedents and statutory interpretation for his Cokean argument that “imprisonment without trial” was contrary to “the spirit of the ‘statute of

128 Hunneyball, “Selden, John”; Berkowitz, “Chapter 6: The Parliament of 1624 and Initiation into Parliamentary Ways,” and “Chapter 7: The Parliament of 1626: Attack on Abuses in Church and State”; Christianson, Discourse on History, p. 92 – 112. 129 Hunneyball, “Selden, John”; Toomer, p. 326 – 327; Christianson, Discourse on History, p. 103 – 110. 130 Haivry, p. 42; Hunneyball, “Selden, John”; Berkowitz, p. 130; Christianson, Discourse on History, p. 113. 131 Guy, “The Origins of the Petition of Right Reconsidered,” p. 294. 132 Haivry, p. 42; Toomer, p. 327– 328. 133 Haivry, p. 42; Kishlansky, “Tyranny Denied,” p. 60; Toomer, p. 328; Christianson, Discourse on History, p. 114. 134 Haivry, p. 42; Toomer, p. 328; Christianson, Discourse on History, p. 114 – 115. 135 Haivry, p. 42.

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Magna Carta,’” arguing that the phrase ‘legem terrae’ in the statute should be interpreted as including “due course of law,” so that imprisonment could only be carried out by formal indictment or presentment (by a jury), and not merely by a “special command of the king” as containing sufficient ground in itself.¹³⁶ The prosecution (Attorney-General Heath) responded that in the case of imprisonment without specific charge, the ground was a secret “matter of state,” inappropriate to be revealed, and that the remedy available for discretionary imprisonment was not “a writ of habeas corpus” but “a petition of right or grace.”¹³⁷ Selden lost the case insofar as the writ of habeas corpus was refused and his client was not released, but the King’s Bench judges avoided delivering a formal judgment on the central question of the Crown’s right of discretionary imprisonment, merely – as they later explained to the House of Lords on the 14th-15th of April 1628 – deciding to postpone a final decision, which meant that following this decision to remit, the prisoners could have applied for a new writ of habeas corpus. ¹³⁸ Following the famous strategy meeting on the 13th of March 1628 at Cotton’s house (most likely in his archive, surrounded by relevant precedents) at which Coke and Selden set the agenda for the new Parliament as the reclaiming of ancient English liberties and laws, the Parliamentary debates of the spring session turned the tide of English constitutional history and resulted in the Petition of Right.¹³⁹ Selden emerged as a star of the new Parliament, with membership of “fifty-six committees and six subcommittees,” and a total of 124 speeches.¹⁴⁰ In this session he presided over extraordinary amounts of primary source research: as just one example, in the discussions of martial law (in which he consistently insisted that there can be only two sources of law, custom and statute) on the 25th of April, he related that the Parliamentary clerks had “searched in the Tower and in the rolls in Chancery Lane […] not above [before] Edward the First, and those since […] we may rely upon.”¹⁴¹ He then provided an exhaustive, detailed historical report on the precedents that had been found for the period from Edward I to IV, including the Scottish rolls and Parliament rolls, in a highly technical disquisition interspersed with large chunks of Law Latin.¹⁴²

136 Haivry, p. 42; Toomer, p. 328; Berkowitz, p. 131; Christianson, Discourse on History, p. 116 – 117. 137 Christianson, Discourse on History, p. 118 – 119, 121. 138 Haivry, p. 42 – 43; Toomer, p. 328; Berkowitz, p. 133; Christianson, Discourse on History, p. 122, 133 – 134; Healy, p. 276. 139 Haivry, p. 18 – 19; Toomer, p. 328 – 329; Berkowitz, p. 137. 140 Haivry, p. 44; Hunneyball, “Selden, John”; Toomer, p. 328. 141 Commons Debates 1628, Vol. III, p. 72 – 74, also p. 79 – 80. 142 Commons Debates 1628, Vol. III, p. 72 – 74, also p. 79 – 80.

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Under his influence, Parliament quickly focussed on the Five Knights’ Case as embodying the issues surrounding arbitrary rule.¹⁴³ Selden used these hearings as an informal retrial and an opportunity to resolve his frustrations from the King’s Bench case itself.¹⁴⁴ He resumed his arguments on the 27th of March, again full of statutes and precedents.¹⁴⁵ During the case the judges had failed to address most of his evidence, and he now issued a challenge to the Crown’s attorneys “to come in and defend what was done if they can.”¹⁴⁶ He re-presented the defence’s case, including its main precedents and statutes, and replied to the Crown’s argument in the King’s Bench case (that there were foreign kingdoms where the monarch had a right to imprison subjects at his discretion) by stating that his recent exhaustive comparative legal investigation on just this point had found that “no prince in Christendom” in fact claimed such a right.¹⁴⁷ Selden argued that it was impossible to change English law by citing ‘reason of state,’ since this concept, by its unavoidably secretive nature, was too nebulous and indefinite to “be used in the regular law courts”: it could easily be exploited by the Crown as a means to intimidate the judiciary.¹⁴⁸ Even more was at stake in the controversy surrounding ‘reason of state’ than the right against arbitrary imprisonment, since the Crown’s emphasis upon it “heralded the importation of a dubious Continental principle into the common law” and threatened “to undermine the dominance of common-law rationality by subordinating it to a Roman-law universalist perspective.”¹⁴⁹ If a binding precedent in favour of ‘reason of state’ could be established, it would be the thin end of the wedge. Selden established a research committee on Friday the 28th of March 1628 to locate all “the relevant legal precedents” concerning the case so that all the members could peruse them.¹⁵⁰ His specific reason for striking this committee was the rumour that “precedents were misrecited” by the King’s Bench judges in the Five Knights’ Case: “Let a subcommittee search into those judgments and precedents.”¹⁵¹ Robert Phelips expanded on Selden’s suggestion, with particular reference to finding the Elizabethan precedent from 1592 which the Crown had por-

143 144 145 146 147 148 143. 149 150 151

Hunneyball, “Selden, John”; Haivry, p. 43; Toomer, p. 329. Hunneyball, “Selden, John”; Commons Debates 1628, Vol. II, p. 100. Commons Debates 1628, Vol. II, p. 154 – 155; Christianson, Discourse on History, p. 124 – 125. Hunneyball, “Selden, John.” Hunneyball, “Selden, John”; Haivry, p. 44; Christianson, Discourse on History, p. 125. Haivry, p. 44. Selden’s contributions to these debates are also discussed by Berkowitz, p. 142 – Christianson, Discourse on History, p. 160. Hunneyball, “Selden, John”; Christianson, Discourse on History, p. 126. Commons Debates 1628, vol. II, p. 173 – 174, 176.

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trayed as supporting its case: “Appoint a subcommittee to search records, and to take and make a full account of those in the Tower.”¹⁵² Coke added, “Search all, both for the King and for us. Put them in the scales, and let the weightiest prevail.”¹⁵³ Sir John Eliot ordered that this “subcommittee of all the lawyers of the House […] should search and bring in the records that concern the point of liberty, on Monday next.”¹⁵⁴ The incredibly short timeframe emphasises the extreme urgency of this research; Selden and his assistants left to work on the research immediately, and brought in copies of the relevant records to the Commons on Monday the 31st.¹⁵⁵ The MPs did not wait for the records, however, and continued to debate the issues (again with citations of authorities) at great length over that Saturday – particularly Coke.¹⁵⁶ (The great interest in these debates is suggested by Sir Humphrey May’s motion to prevent MPs from reserving their seats by leaving gloves on them, since it was leading to disorder by forcing other MPs to search desperately for somewhere to sit.) On Monday the 31st the discussions started up again even before Selden’s committee had reported back, with another speech by Coke on imprisonment.¹⁵⁷ Selden’s account of this particular scouring of the archives alarmed the House when it transpired that the key prosecution precedent from 1592 could no longer be found.¹⁵⁸ When a report of this decision by Elizabethan Chief Justice Anderson was found in the home archive of Sir John Eliot, it turned out to support the case for the defence, not the Crown.¹⁵⁹ Anderson had written that the judgment showed “that although those imprisoned by the monarch or privy council could not be bailed by King’s Bench or another court prior to trial of substantive charges,” upon a petition for a writ of habeas corpus the Crown was required to certify to the judges a specific reason for the imprisonment.¹⁶⁰ The book containing the report was brought into the House, Thomas Wentworth remarking that Anderson’s commentary “made for the liberty of the subject in direct terms opposing that for which it was first cited,” while Coke, apparently holding up the volume to show Parliament that the judgment was written “in my Lord Anderson’s own hand,” triumphed, “You see now that this is magna veritas. It was cited against

152 153 154 155 156 157 158 159 160

Commons Debates 1628, vol. II, p. 176. Commons Debates 1628, vol. II, p. 176 – 177. Commons Debates 1628, vol. II, p. 185. Berkowitz, p. 144. Commons Debates 1628, vol. II, p. 190 – 192. Commons Debates 1628, vol. II, 207. Hunneyball, “Selden, John.” Hunneyball, “Selden, John”; Commons Debates 1628, vol. II, p. 220, fn. 54; Healy, p. 276. Guy, p. 298.

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us, and makes for us.”¹⁶¹ Sir John Eliot, in whose private collection it had been found and who may have been a little embarrassed, moved that the book, “being such a jewel,” should “be delivered” – apparently into Parliament – for safekeeping (another instance of the Commons’ instinct to carefully archive the documentation surrounding these great debates) and that a copy of the judgment should be “entered into the Clerk’s book.”¹⁶² It is, of course, the dramatic rhetoric on Magna Carta in this Parliament that has thrilled the imaginations of subsequent generations, rather than the specific recordkeeping issue which arose during consideration of the (putative) judgment in the Five Knights’ Case: the formal requirements for adequately enrolling a precedent in the records of the Court of King’s Bench and thereby giving it binding force. That Selden was alert to the problem suggests the deep archival and evidential expertise that he had gained during his researches and legal education. However, the effect that he created with his discovery in Parliament suggests that knowledge of evidential requirements in recordkeeping was widespread among this audience made up mainly of jurists. This “act of archival perversion,” as Guy terms it, was to have grave consequences for the negotiations between Crown and Parliament.¹⁶³ The underlying distinction was between perishable paper and eternal parchment.¹⁶⁴ The documents of the Court consisted of three different classes: files, official rolls, and mere “tools of the trade” such as the Court’s “rule book.”¹⁶⁵ A precedent was not viewed as “on record” and therefore binding until it was officially enrolled.¹⁶⁶ Because the court’s decision to keep the knights in custody following the hearing had only been written in the (paper) rule book and not explicitly entered on the roll, it was thereby “not a precedent for discretionary imprisonment for state reasons.”¹⁶⁷ After the controlment roll of a superior court “had been sewn up at the end of the law term,” it was a felony to alter the records on it, as had been determined in the reign of Henry VI.¹⁶⁸ However, this was what the Crown was now discovered (by Selden’s research subcommittee) to have attempted, pressuring its servants to forge an entry on one of the knights’ applications for habeas corpus which contained the additional statement that “the words ‘by his majesty’s

161 162 163 164 165 166 167 168

Commons Debates 1628, vol. II, p. 232 – 233. Commons Debates 1628, vol. II, p. 233; Healy, p. 276. Guy, p. 296 – 297. Guy, p. 295. Guy, p. 294. Guy, p. 294 – 295. Guy, p. 295, 301. Guy, p. 297.

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special command’ had been reviewed by King’s Bench and adjudged to be a definitive return to a writ of habeas corpus despite no mention of any specific cause of detention.”¹⁶⁹ Had this judgment been feloniously enrolled, it could have established “a legal precedent for future detentions by royal command.”¹⁷⁰ Selden’s indignation in relating this story on the 1st of April is palpable, particularly on behalf of the embattled and principled court records clerk who had resisted the Attorney-General’s repeated attempts at coercion: “the Attorney wished him to make a special note of the habeas corpus,” upon which the clerk explained that he could only legally enter the note if the court consented to it, but notwithstanding the judges’ rejection of a special entry of the note, the Attorney-General continued to pressurise the clerk, even though the latter protested that “it went against his conscience.”¹⁷¹ There was general consternation at Selden’s announcement that the Crown was attempting to change the records to make it appear that the Five Knights’ Case had been definitively concluded “in its own favour.”¹⁷² A week later Selden described the draft judgment “as ‘contrary to all precedents of former times, and to all reason of law, to the utter subversion of the chiefest liberty and right belonging to every free man of this kingdom.’”¹⁷³ The pro-Stuart historian Kishlansky argued that Selden was disingenuously seizing on a mere technicality which, on closer investigation, evaporates, apparently missing the fact that the Attorney-General was attempting to forge a substantive judgment and prejudice the outcome of the case, while Kishlansky also overlooked the alarm of the other MPs (such as Wentworth’s call for a full investigation into the matter) and the fact that the King’s Bench judges in their presentation to the Lords stated that they had explicitly prevented the Clerk from entering the putative judgment on the roll.¹⁷⁴ The effect of this attempted felonious recordkeeping behaviour on Parliament is the most important point. The Crown’s apparent foray into records forgery suggested that it had abandoned any “commitment to the rule of law” and thus exacerbated the polarisation in the legal debates which followed, since it galvanised the Commons into rejecting, in all circumstances, discretionary powers of imprisonment (even in cases of suspected terrorism, such as the Gun-

169 Guy, p. 296, 300; Christianson, Discourse on History, p. 126. This incident is briefly alluded to in Sharpe, “Introduction: Rewriting Sir Robert Cotton,” p. 15, and discussed by Berkowitz, p. 146 – 147. 170 Hunneyball, “Selden, John.” 171 Commons Debates 1628, Vol. II, p. 229, 232; Christianson, Discourse on History, p. 126 – 127. 172 Hunneyball, “Selden, John.” 173 Hunneyball, “Selden, John.” 174 Kishlansky, “Tyranny Denied”; Commons Debates 1628, Vol. II, p. 229, 232; Christianson, Discourse on History, p. 134.

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powder Plot) or forced loan raising.¹⁷⁵ Burgess notes that it is difficult to convey “how shocking this [attempted records forgery] must have appeared to contemporaries, and how fully it must have strengthened the fear that the crown was disregarding the law.”¹⁷⁶ After Selden’s revelation, the Commons voted on the 1st of April to condemn imprisonment without a charge based on law, and also to declare that “the writ of habeas corpus was […] one of right, not grace,” that “defendants in habeas corpus proceedings” could not be kept in custody without notification to the court of a “specific cause of legal detention,” and that taxation without Parliamentary sanction was illegal.¹⁷⁷ For this résumé of traditional English liberties, they cited Magna Carta, the 1484 Statute of Benevolences, and the 1592 Elizabethan precedent.¹⁷⁸ Following “a motion by Coke,” a famous joint conference with the House of Lords was held on the 7th of April on the “ancient and fundamental liberties of England.”¹⁷⁹ In his introductory speech to this conference, Sir Dudley Digges evoked the Ancient Constitution in a vision of continuity of “the laws of England […] grounded on reason more ancient than books,” to be found written down in the law codes of Ethelbert and Alfred the Great.¹⁸⁰ Digges quoted Alfred’s dictum at the end of his code, “That those who live under one king should be governed by one law.”¹⁸¹ It appears that Digges had referred to Alfred’s law code in the Cotton collection, and he added that Parliament was planning to publish an official edition of it.¹⁸² Digges proceeded further into the Gothic past, stating that England’s legal-administrative apparatus derives from the Anglo-Saxons and ultimately from “the Germans, their ancestors” as described by Tacitus, administering justice through the village and canton system and deciding on new laws in representative assemblies.¹⁸³ This was followed by Littleton’s long and learned overview of relevant statutes, petitions, and other sources, focussed in part on whether Magna

175 Guy, p. 298, 302, 305, 312. Incidentally, when Guy went looking for the records of the Court of King’s Bench on the Five Knights’ Case to investigate them for the very first time and thereby evaluate Selden’s archival claims, he found the writs in an abandoned “munitions factory,” while the order/rule book and the rolls themselves were in Chancery Lane (Kishlansky, Tyranny Denied, p. 55). This suggests something alarming about the preservation of key English legal records even in more recent times. 176 Burgess, p. 194. 177 Guy, p. 298. 178 Guy, p. 298. 179 Haivry, p. 44; Berkowitz, p. 149 – 150. 180 Commons Debates 1628, Vol. II, p. 333; Christianson, Discourse on History, p. 129. 181 Commons Debates 1628, Vol. II, p. 333, fn. 25. 182 Commons Debates 1628, Vol. II, p. 333, fn. 24. 183 Commons Debates 1628, Vol. II, p. 334.

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Carta had been corrupted over the centuries in the course of transcription, and providing a detailed discussion of the various parliamentary petitions for the upholding of its no-imprisonment-without-cause clause.¹⁸⁴ Berkowitz notes that Selden’s part, discussing the court cases, was the most difficult and important task of the conference: “If the statutes were uniformly clear, why were the precedents of judicial decision apparently lacking in the equal consistency required by the doctrine of stare decisis?”¹⁸⁵ It was now Selden’s aim to show not merely that the weight of precedent was in the Commons’ favour but that “all the judicial decisions” demonstrated “a single pattern of judgment,” a new and more powerful approach made possible by the recent archival research.¹⁸⁶ Selden presented at length on his specific legal arguments, expounding on “habeas corpus and its attendant precedents.”¹⁸⁷ His extraordinarily recordsminded discussion of the various court cases on the question, from Edward III to the attempted forgery in the Five Knights’ Case, showed that twelve cases supported the right to bail and no valid precedent existed to deny it.¹⁸⁸ He judged the validity of the precedents based on whether they had satisfied the formal legal recordkeeping requirements: “clearly every return is to be adjudged by the court out of the body of itself, and not by any other collateral or foreign record whatsoever,” so that in cases where the indictment was entered in a separate, unrelated roll rather than the official roll of that session, it could not be the basis for bailing a prisoner who had been arrested for a vague “matter of state.”¹⁸⁹ (In total, Berkowitz notes, he dismissed five putative precedents “by demonstrating clerical confusion in an erroneous entry on a roll.”)¹⁹⁰ With reference to the case of Richard Overton in the reign of Queen Mary, in which the separately and therefore improperly noted indictment was for the crime of high treason, Selden demonstrated the absurd logical consequence of the argument that this charge was the ground for Overton’s bail, rather than the fact that he had been imprisoned without a stated cause: this would mean that “traitors […] have the highest privilege in personal liberty […] above all other subjects of this kingdom.”¹⁹¹ At various points Selden objected to anything additional being treated as if it were part of the legally-enrolled

184 Commons Debates 1628, Vol. II, p. 334 – 344; Christianson, Discourse on History, p. 130. 185 Berkowitz, p. 150. 186 Berkowitz, p. 150 – 151. 187 Hunneyball, “Selden, John.” 188 Commons Debates 1628, Vol. II, p. 344; Burgess states that Selden’s notes for the conference covered sixty pages: Burgess quoted in Haivry, p. 44 – 45. 189 Commons Debates 1628, Vol. II, p. 346. 190 Berkowitz, p. 151. 191 Commons Debates 1628, Vol. II, p. 346.

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court record, such as, for example, in the Jacobean case of Richard Beckwith.¹⁹² This led up to his evisceration of the Attorney-General’s attempted forgery in the Five Knights’ Case: “this draft, if it were entered in the roll (as it was prepared for no other purpose), would be as great a declaration contrary to the many acts of parliament already cited, contrary to all precedents of former times, and to all reason of law, to the utter subversion of the chiefest liberty and right belonging to every free man of this kingdom; and for that especially also it supposes that divers ancient records had been looked into by the court in like cases, by which records their judgments were directed, whereas in truth, there is not any one record at all extant that […] warrants the judgment.”¹⁹³ Similarly, the Elizabethan precedent, although it had been cited in the Five Knights’ Case, had not been read by counsel or the judges – which Selden portrayed as a deliberate oversight of a precedent hostile to the prosecution’s case.¹⁹⁴ Following Selden’s analysis of the precedents, Littleton offered the Lords faithful transcriptions of relevant records, underscoring the explicit similarity of this conference to a traditional English court proceeding: “I shall now (as I had leave and direction given me, lest your Lordships should be put to too much trouble and expense of time in finding or getting copies at large of those things which I have cited), offer also to your Lordships authentic copies of them all.”¹⁹⁵ (Emphasis added.) On a number of occasions, this parliament of jurists showed concern that the copies of records cited in evidence of the Commons’ legal arguments should be identical with the originals. A “committee of all the lawyers of the House” decided to meet on the 18th of April to compare Selden’s “copies of the records with the original” at Inner Temple Hall, apparently in response to his highly technical recordkeeping debate with the Attorney-General discussed below – given how challenging this discussion was to follow, it is understandable that they wanted to see if they could confirm Selden’s objections for themselves.¹⁹⁶ Similarly, on the 5th of May in the context of preparing the content of the Petition of Right, it was ordered, “Mr. Selden and others to view the records and precedents” and “that copies of all the records and arguments for our liberties should be brought in tomorrow morning by the Clerk with the originals.”¹⁹⁷

192 Commons Debates 1628, Vol. II, p. 347– 348. 193 Commons Debates 1628, Vol. II, p. 354; Christianson, Discourse on History, p. 130. See also Berkowitz, p. 152. 194 Berkowitz, p. 152. 195 Commons Debates 1628, Vol. II, p. 356. 196 Commons Debates 1628, Vol. II, p. 510. 197 Commons Debates 1628, Vol. III, p. 258.

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Coke’s speech, which followed Selden’s, is much shorter and less forensic, although he does cite statutes and legal commentaries.¹⁹⁸ This speech contains the famous Cokean pronouncement, drawing on Fortescue, that no man will apply himself to anything “in any profession, either of war, liberal science, or merchandise, etc., if he be but tenant at will of his liberty,” and that “no tenant at will will support or improve anything, because he hath no certain estate.”¹⁹⁹ In the context of the controversy surrounding the Attorney-General’s putative forged precedent and Selden’s discussion of the other precedents surrounding habeas corpus, a peculiar incident occurred while the Commons were waiting nervously to hear back from the Lords on their own deliberations (including the presentation by the King’s Bench judges on the Five Knights’ Case).²⁰⁰ This episode again serves to highlight the sanctity of the legal ‘record’ at the time. It was related in the Commons on the 14th (not, as Christianson has it, the 12th) and 17th of April that the Earl of Suffolk had said on the 12th of April that “Selden had razed [destroyed] a record and […] deserveth to be hanged,” that both Houses of Parliament should join forces in petitioning Charles for Selden’s execution, and that “Mr Selden hath endeavoured to divide the King and his people.”²⁰¹ (This last accusation, the Earl clarified, referred to all of Selden’s activities on behalf of the Commons and not merely to the allegation of destroying a record.)²⁰² When asked to respond, Selden vigorously denied the allegation, acknowledging that if he had destroyed a record it would rightly be a capital offence, and observed with regard to the precedents for the conference with the Lords, “I did deliver […] all the copies, examined by many eyes as well as mine.”²⁰³ The precise nature of the Earl of Suffolk’s accusation is ambiguous. Suffolk was probably not clear in his own mind whether he was accusing Selden of outright destruction of an original record or indirect ‘destruction’ in the form of a deliberately false transcription submitted for legal purposes. (Indeed, Suffolk ultimately admitted to the Lords that he himself lacked the technical expertise to know whether a document was a record or not, and that he might have been mistaken.)²⁰⁴ Berkowitz appears to believe that Selden was being accused of tampering with the very controlment roll on which the Attorney-General had attempted to make an illicit entry – from which membrane 89 was miss-

198 E. g. Commons Debates 1628, Vol. II, p. 358. 199 Commons Debates 1628, Vol. II, p. 358; Christianson, Discourse on History, p. 131. 200 Berkowitz, p. 153 – 154. 201 Commons Debates 1628, Vol. II, p. 453 – 454, 457– 458, 515; Berkowitz, p. 153 – 154; Christianson, Discourse on History, p. 140. 202 Commons Debates 1628, Vol. II, p. 515. 203 Commons Debates 1628, Vol. II, p. 454; Berkowitz, p. 154 – 155. 204 Berkowitz, p. 156.

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ing – while Selden’s own defence of himself in the House suggests that he interpreted the allegation as focussed on the precedents brought in for the conference with the Lords, and Christianson similarly states that Suffolk had fabricated the accusation out of Heath’s comment that Selden “had not included the full text in some of the transcriptions of statutes and precedents handed over to the Lords.”²⁰⁵ In any case, the House was explicitly scandalised by the accusation that Selden had destroyed a record, and it was observed by Bankes that since Selden had been acting in the service of the whole House of Commons, this was equivalent to accusing the entire House of destroying a record.²⁰⁶ Sir Robert Mansell said that the Lords should be informed, and that it would handicap the Commons “if men shall be terrified from searching records.”²⁰⁷ The Commons voted to immediately bring charges against the Earl of Suffolk in the Lords so “that they will proceed against him in justice, and inflict what punishment so high an offense against the House of Commons shall deserve.”²⁰⁸ The affair seems to have been a clumsy attempt to terrorise Selden and to undermine his masterful analysis of the precedents (Christianson suggests that Suffolk was motivated by personal frustration over the issue of martial law, for which he had helped to draw up the guidelines as part of a royal commission), by attacking the very records-oriented probity with which Selden had buttressed his arguments.²⁰⁹ In the debates in Parliament between Attorney-General Heath and Selden on habeas corpus from the 16th-17th of April, during the second Commons-Lords conference, Selden’s research abilities and deep knowledge of legal recordkeeping again came to the fore.²¹⁰ Hunneyball notes that “The dialogue was extremely technical […] frequently depending on marginalia on the original records, or the procedures of court clerks,” and Selden “several times embarrassed the attorney-general with his superior knowledge of the compilation of court-rolls.”²¹¹ Heath specifically attempted to rebut Selden’s speech from the Lords conference on the 7th of April, in which he had eliminated various putative precedents on the ground that they were invalid as they did not conform to the legal recordkeeping requirements. Heath tried to argue that there were in fact three different kinds of relevant records in court cases, but whether he was simply confused about the specific re-

205 Berkowitz, p. 326 note 31, p. 328 note 54; Christianson, Discourse on History, p. 141. 206 Commons Debates 1628, Vol. II, p. 515. 207 Commons Debates 1628, Vol. II, p. 515. 208 Commons Debates 1628, Vol. II, p. 516. 209 Christianson, Discourse on History, p. 140 – 141. 210 Hunneyball, “Selden, John”; Christianson, Discourse on History, p. 134 – 135. 211 Hunneyball, “Selden, John”; this highly technical debate can be followed in Commons Debates 1628, Vol. II, p. 490 – 499.

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quirements for the recording of a charge or was disingenuously attempting to introduce a red herring is unclear: in any case, Selden was able to defeat him by insisting on the principle that the charge was always to be entered in the court’s remembrance roll, remarking of Bildeston’s Case, for example, that “if any cause had appeared unto the court it must have appeared plainly in that part of the roll which belongs to the Easter term.”²¹² Once again Selden used the formal requirements for court recordkeeping to successfully eliminate various precedents which, if recorded correctly, could have undermined the right of habeas corpus fatally. Despite the extreme technicality of this debate (summarised here in a simplified form), the Commons followed it with enthusiasm and interest, and concluded afterwards that “they had a great number of precedents […] agreeable to their resolution.”²¹³ Hunneyball notes that throughout, Selden battled against Heath’s argument “that judges used their discretion in deciding whether to grant bail,” and “for the principle that the Common Law was predictable in its execution, and therefore capable of guaranteeing liberties.”²¹⁴ The Commons were also very protective of their own recordkeeping rules. When, on the 17th of April, the Lords requested a parliamentary journal book from the 1621 Protestation session because it contained a Commons “bill […] to explain Magna Carta,” Coke commented that “it is very unfit that a Clerk’s book should stand for evidence,” and the MPs reminisced about the unreliability of that particular journal: Digges observed that the minutes were so faulty (especially those of his own speeches on account of his “imperfection of speaking fast”) that the Clerk had been ordered to stop taking notes, while Sir Robert Hakewill noted that the Clerk had captured comments of his own that had nearly sent him to prison, which he had escaped by arguing that it was the Clerk’s duty to “take resolutions and not discourses,” so that his own remarks in the journal were not on record, were protected by parliamentary privilege, and could not be used in evidence against him.²¹⁵ The Commons secretary Sir John Coke (no relation of Edward Coke) therefore refused to send up the book to the Lords, stating that “the entry by the Clerk of particular men’s speeches was without warrant.”²¹⁶ This is connected to the Crown’s request on the same day to submit a 1621 Parliamentary speech by

212 Commons Debates 1628, Vol. II, p. 493. 213 Commons Debates 1628, Vol. II, p. 499. 214 Hunneyball, “Selden, John.” 215 Commons Debates 1628, Vol. II, p. 513, 516. 216 Commons Debates 1628, Vol. II, p. 509. Apparently as a result of this incident the Commons decided to regularly meet and check the Clerk’s minutes every Saturday “but not to alter any order, though defective” without first having apprised the House of it and receiving a warrant from the House to change it (Commons Debates 1628, Vol. II, p. 521).

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Coke as evidence, to which Selden replied that the Journals were only an evidential authority for Commons resolutions “and other decisions of record” and not for any MP’s speech.²¹⁷ Further, he commented, the recent archival research into the precedents had revealed – as Christianson puts it – far more, and more decisive, “evidence from the ancient constitution” on arbitrary imprisonment than that which had been available to Coke in 1621.²¹⁸ Coke’s speech, even had it been admissible, was now seriously out of date. The Commons’ instinct to painstakingly record and archive this session is of particular interest. Numerous incidents support Gajda and Cavill’s diagnosis (made with reference to the revival of Parliament’s judicial function in 1621) of an historical self-awareness on the part of MPs in the 1620s, that they saw “their roles in terms of a mythologised continuum that stretched back over centuries” and behaved accordingly.²¹⁹ The key protagonists were determined to permanently preserve the materials involved in the House of Commons’ side of the conference with the Lords: “Sir Dudley Digges, Mr. Selden, Mr. Littleton, and Sir Edward Coke deliver in the introduction, precedents, cases, acts of parliament, and reasons urged at the conference, to be kept in the House, and there to remain in posterity.”²²⁰ On the 23rd of April the Commons representatives – Selden, Coke, and Digges – reported back to the Commons on their speeches from the Lords conference, and it was ordered that “every man shall have copies that desires them from the Clerk” (apparently of the transcriptions of those speeches).²²¹ When the Kings’ Bench judges appeared in the House of Lords to explain their proceedings in the Five Knights’ Case, and declared that they had not undermined “the liberty of the subject […] and that the judgment was but in the nature of a curia advisari vult and that they all refused the pretended judgment should be entered upon record,” the Commons referred their declaration “to the consideration of the former committee for searching of records, how the same may be best entered for the service of the House,” upon which “It was ordered that the record of the declaration should be entered in the House of Commons.”²²² Similarly it was urged that a report be made of the debates between Attorney-General Heath and the Commons, to include “Mr Attorney’s opposition to our arguments and the reply to them,” and that this report should also integrate “the records and arguments” from the Commons which were currently “before the Lords for our liber-

217 218 219 220 221 222

Christianson, Discourse on History, p. 139. Christianson, Discourse on History, p. 139. Gajda and Cavill, p. 49 – 50. Commons Debates 1628, Vol. III, p. 48. Commons Debates 1628, Vol. III, p. 54. Commons Debates 1628, Vol. III, p. 4, 5.

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ties,” so that “with these weapons our posterity may, when their liberties are invaded, have weapons to defend the same left them by us.”²²³ Archiving these materials in the House of Commons would thus help to ensure the future survival of the English constitution. On the 5th of May Wentworth complained “I love the Clerk well, but we have great wrong” that the Clerk had not yet brought in copies of the arguments from the conference of the 7th of April, “since I think it is as good an inheritance and the best I can leave to my son.”²²⁴ Light is shed on the mechanics of conducting archival research for Parliament by Selden’s motion on the 23rd of April to have the Parliamentary clerks paid for their efforts in this regard: “We have had assistance and endeavors of clerks to search records in the Tower and elsewhere touching this great matter. I humbly move they may have some contribution for their pains. The usual course is to defer this to the end of a parliament. But then every man makes such haste out of the town that many depart without paying.”²²⁵ The question of who should pay what then precipitated a lively debate, although all agreed that there should be a sliding scale according to rank, with knights paying more than burgesses.

The Petition of Right and its aftermath In the immediate lead-up to the Petition of Right, the Lords – Coke announced – were anxious to somehow entrench “the liberty of the subject without pinching upon the prerogative, for that will dissolve the sinews of monarchy.”²²⁶ In his reply to the Lords’ five compromise proposals communicated on the 25th of April, Sir Dudley Digges stated that “The Commons have commanded me […] to assure your Lordships they have been, are, and will be, as ready to propugn the just prerogative of his Majesty of which, in all their arguments, searches of records, and resolutions, they have been most careful.”²²⁷ This remarkable reply suggests that the Commons, in their archival research, had deliberately avoided looking for precedents that might threaten the royal prerogative as such, and instead focused on the specific question of its relationship to fundamental liberties – while the exchange also highlights a heightened Royal sensitivity to the dangers that archival research could pose to the prerogative.

223 224 225 226 227

Commons Commons Commons Commons Commons

Debates 1628, Vol. III, p. 4, 12. Debates 1628, Vol. III, p. 263. Debates 1628, Vol. III, p. 48. Debates 1628, Vol. III, p. 48 – 49. Debates 1628, Vol. III, p. 75.

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Coke and Selden’s responses to the proposals, given on the following day, form a masterclass in the common-law art of spotting dangerous ambiguities. In the Lords’ statement that “every free subject of this realm has a fundamental propriety in his goods and a fundamental liberty of his person,” Coke pounced on the apparent qualifier ‘fundamental,’ which he described contemptuously as ‘Holborn Latin.’²²⁸ The danger of the word ‘intrinsical’ as used to describe the King’s prerogative was immediately apparent to Coke: he explained to the Commons that the word meant “not bounded by any law, or by any law qualified,” so that “We must admit this intrinsical prerogative an exempt prerogative, and all our laws are out.”²²⁹ He attacked the notion that ‘fundamental’ rights, and Magna Carta, were to be confirmed by the King’s grace (“I delight in the King’s Grace, but will you have Magna Carta as a grace? Our petition is a petition of right, and the King is to do it in right”).²³⁰ Of the promise that Charles’s subjects would enjoy freedoms and rights to as great an extent as their ancestors had done “under the best of his noble progenitors,” he wanted to know “Who are his best progenitors, they that had best possessions, or best virtues? I never read who was the best king.”²³¹ The Lords also assured the Commons in their fifth proposal that in the case where Charles did find it necessary to carry out prerogative imprisonment for “just cause of reason of state,” he would state the charge “within a convenient time” and immediately institute proceedings in court “according to the common justice of the kingdom.”²³² Coke eviscerated the vagueness of the word ‘convenient’ and stated that acceding to this proposal would mean jettisoning Magna Carta.²³³ As for Selden, he expressed himself with an unusual terseness suggestive of anger, noting of these proposals “The first three are not fit, for there is no use of them in these great questions […] The fourth we have already. The fifth is not fit to be had at all.”²³⁴ He attacked the doubt that Magna Carta was still in force which, he argued, was implicit in the Lords’ proposal to ask the King to confirm it.²³⁵ The expression ‘a convenient time’ in the proposal on prerogative imprisonment also drew his particular ire: “what is convenient time? […] At this little gap

228 229 230 231 232 233 234 235

Commons Debates 1628, Vol. III, p. 74, 95. Commons Debates 1628, Vol. III, p. 95. Commons Debates 1628, Vol. III, p. 95. Commons Debates 1628, Vol. III, p. 95. Commons Debates 1628, Vol. III, p. 74 – 75. Commons Debates 1628, Vol. III, p. 94 – 95. Commons Debates 1628, Vol. III, p. 96; Christianson, Discourse on History, p. 146. Commons Debates 1628, Vol. III, p. 96.

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every man’s liberty may in time go out.”²³⁶ As Sir Dudley Digges stated on the same day, the aim of the Petition of Right should be to confirm Magna Carta and settle the question of whether the King was “above the law, or law above the King.”²³⁷ On the 22nd of May, Selden rejected a proposal by the Lords to add an acknowledgement of “the Crown’s sovereign power” to the text of the Petition of Right, explaining that this would instantly make a nonsense of rights against forced loans and imprisonment without cause – such infringements by the Crown would be disallowed “except by sovereign power.”²³⁸ (That is, there would be no external check on the Crown.) In the debates as to whether the Commons’ own four resolutions of the 1st of April should be enshrined in a bill or a petition, and if the latter, whether a petition of right or petition of grace, the Commons again used archival research to determine the best course to follow. (In the context of the proposed bill, Selden insisted that the quoted statutes should be transcribed directly from the original roll, and not from copies.)²³⁹ Selden would himself have specifically preferred a Bill of Rights – due, according to Christianson, to his conviction that law could only derive from statute or custom – but as this would have required the Royal assent, it would have provoked a direct confrontation with Charles.²⁴⁰ The King would only offer a vague, general statute “confirming Magna Carta and other statutes,” refusing any explicit discussion of the application of these laws to the particular grievances (since this could restrict his prerogative) or any definition of “lex terrae” from Magna Carta, suggesting that it should be sufficient for the Commons to trust him.²⁴¹ Thus the bill option was ruled out: the end result would be so general that a country gentleman innocent of the background would never be able to read Parliament’s resolutions out of it, and judges would also be unable to rely on resolutions not explicitly contained in the statute.²⁴² The only option seemed to be a petition, and Coke pointed out that not only could a petition of right highlight specific grievances, precedent showed that (in contrast to a petition of grace) the Crown would be bound to

236 Commons Debates 1628, Vol. III, p. 97; Christianson, Discourse on History, p. 146. Coke and Selden’s reactions are briefly discussed by Berkowitz, p. 165, Selden’s by Haivry, p. 163. 237 Commons Debates 1628, Vol. III, p. 115. 238 Commons Debates 1628, Vol. III, p. 552; Hunneyball, “Selden, John”; Haivry, p. 166. 239 Christianson, Discourse on History, p. 147– 148. 240 Haivry, p. 45; Christianson, Discourse on History, p. 139 – 140. Berkowitz provides a detailed discussion of the debates on the bill question: Berkowitz, p. 167– 172. 241 Guy, p. 309 – 310; Read Foster, “Petitions and the Petition of Right,” p. 26, 41; Commons Debates 1628, Vol. III, p. 280 – 287. 242 Read Foster, “Petitions and the Petition of Right,” p. 41; Commons Debates 1628, Vol. III, p. 285.

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reply.²⁴³ No doubt due to his discovery of the Crown’s cynical form with regard to recordkeeping requirements, Selden insisted that no vote of monetary supply should be made until the Petition and Charles’s reply had been safely “enrolled as legal records” and also “printed for general circulation.”²⁴⁴ This concern would prove prophetic. Nevertheless, Selden was one of the Petition’s chief drafters.²⁴⁵ The text, which formally recalls “statutes and precedents of Plantagenet times,” testifies to careful legal-historical research in the primary sources (which, according to Christianson, was mostly conducted by Selden’s assistants) including precedents from the reigns of Edward I and Edward III, and, of course, Magna Carta.²⁴⁶ Its wording already gave it the character of a constitutional document, framing “constitutional principles as supreme over the king’s will and even over the developments of legal practice.”²⁴⁷ Read Foster notes Parliament’s strong historical self-awareness as the inheritor of a grand tradition: already during the later Parliaments of James’s reign, a research committee had embarked on a massive project of examining previous petitions and the monarch’s answers as entered together on the Parliament rolls in the Tower repository, as the background for a petition of right to James (ultimately answered satisfactorily by the new king Charles).²⁴⁸ This went together with “the stabilization and consolidation of procedure,” an increasing distrust of oral messages and an insistence “on written, formal communication with the Crown,” with the MPs seeking “security in a written record,” partly because only a written record could constitute a precedent.²⁴⁹ She comments that there was nothing meek or supplicatory about presenting legislation to the Crown in the form of a petition of right – the historical form for remedying governmental injustices – as opposed to a mere petition of grace.²⁵⁰ It was therefore in some ways a stronger statement than a bill would have been. However, Read Foster also makes clear that in the course of developing the Petition of Right, Parliament was in fact establishing the contours of a specifically Parliamentary petition of right distinct from that of a private individual, traditionally the beginning of a legal action against the

243 Read Foster, “Petitions and the Petition of Right,” p. 41 – 42. 244 Hunneyball, “Selden, John.” 245 Haivry, p. 48; Toomer, p. 329. 246 “Petition of Right”; Trevelyan, England under the Stuarts, p. 142; Berkowitz, p. 174; Christianson, Discourse on History, p. 212. 247 Haivry, p. 45. 248 Read Foster, “Petitions and the Petition of Right,” p. 39. 249 Read Foster, “Petitions and the Petition of Right,” p. 37. 250 Read Foster, “Petitions and the Petition of Right,” p. 26, 35, 41 – 42.

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Crown.²⁵¹ An example of such a private legal action appears in the State Papers from the early reign of Charles I, in which the petitioners, apparently in an inheritance dispute, alleged an error in their King’s Bench judgment “which can only be redressed in Parliament.”²⁵² They requested “that Lord Chief Justice Crewe may be commanded to bring the record of the said judgment into Parliament, according to the law and custom of the realm,” a petition which was answered by Charles in the affirmative with Fiat justicia. ²⁵³ Instead, this Parliamentary version was demanding justice, “confirmation by the King of what it conceived had already been demonstrated to be a right,” essentially presenting “a proven case, a particular grievance shown to be illegal, a privilege demonstrated by precedent always to have belonged to the House in question.”²⁵⁴ The traditional formula with which the mediaeval monarch replied to petitions of right – “Let right be done as is desired” – which, in the private context, was open-ended and merely signalled the monarch’s agreement to the impending legal action, in this new context took on the implication that the Crown acknowledged the grievances and confirmed the validity of Parliament’s case, making address and answer together a complete act.²⁵⁵ Although it was thought by Parliament that the Petition had the same weight as an Act of Parliament that had received the Royal assent, according to Read Foster this was still an open question (indeed, at one point Selden vigorously rejected such an equivalency), and it would later be resolved by William Prynne in the 1660s, as Keeper of the Tower records, by examining the mediaeval petitions and replies entered upon them.²⁵⁶ Prynne concluded that, rather than proceeding via the formulation of a bill, in ancient times Acts of Parliament were consistently made by petition, so that when the King assented to a petition of right with the words “Soit droit fait comme est désiré,” this made it, in fact, a complete Act of Parliament.²⁵⁷ Read Foster notes that Prynne was in no doubt “that the Petition of Right, made in the same way, was, like its predecessors, a public act.”²⁵⁸ It was essential that the reply to the Petition was written “on the Petition itself, as the royal assent to a bill was inscribed on the orig-

251 Read Foster, “Petitions and the Petition of Right,” p. 43. 252 Cal. State Papers Dom. (1625 – 26), p. 15. 253 Cal. State Papers Dom. (1625 – 26), p. 15. 254 Read Foster, “Petitions and the Petition of Right,” p. 43. 255 Read Foster, “Petitions and the Petition of Right,” p. 43 – 44. 256 Read Foster, “Petitions and the Petition of Right,” p. 24 – 25; Christianson, Discourse on History, p. 149. 257 Read Foster, “Petitions and the Petition of Right,” p. 24 – 25. 258 Read Foster, “Petitions and the Petition of Right,” p. 25.

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inal bill.”²⁵⁹ In a lecture to law students after the Restoration, Prynne described the Petition of Right as “a rehearsall and ratification of the highest nature of all those antient fundamental Lawes contrived for by the wisdome of all former Parliaments.”²⁶⁰ The lengthy negotiations between Commons and Lords on the final content of the Petition and the Commons’ ultimate victory are explained in detail by Berkowitz and Christianson.²⁶¹ The machinations of the Crown in formulating its reply, and the reaction of the London public to them – suggesting a widespread awareness of the arcane issues involved – are highly significant. First, Charles returned (from Parliament’s point of view) the wrong answer, which meant merely that the issues could now be tried in a law court, and also seemed to imply equivocation as to the Parliamentary interpretation of the statutes provided: “The King wills that right be done according to the laws and customs of the realm.”²⁶² Charles additionally affirmed the validity of the statutes, and also implied that the preservation of English liberties depended not on the rule of law, but on his own conscience and prerogative.²⁶³ After protest from both Houses, five days later on the 7th of June Charles appeared personally in the House of Lords – to which the Commons were invited – and returned a different reply, “Soit droit fait comme est désiré. Let right be done as is desired.”²⁶⁴ To Parliament this represented, as Haivry puts it, “full ratification.”²⁶⁵ Sir Edward Coke is reported to have said – once the Commons had filed back into their own House and could safely give way to feeling – “I am half dead for joy […] In a doubtful thing interpretation goes always for the King. But here we are free, there is no doubtfulness nor shadow of ambiguity.”²⁶⁶ There was hysterical cheering in Parliament and across the city, church bells rang, and bonfires were kindled in the streets.²⁶⁷ On the 9th of June Sir John Strangways commented in the House of Commons on “The public joy, thanks, prayers, and bon-

259 Read Foster, “Petitions and the Petition of Right,” p. 42 – 43. 260 Lamont, Marginal Prynne, p. 24. 261 Berkowitz, p. 174 – 182; Christianson, Discourse on History, p. 149 – 152. 262 Read Foster, “Petitions and the Petition of Right,” p. 43; Commons Debates 1628, Vol. IV, p. 52, 55; Berkowitz, p. 188. 263 Berkowitz, p. 188. 264 Read Foster, “Petitions and the Petition of Right,” p. 43; Haivry, p. 45; Commons Debates 1628, Vol. IV, p. 182. The Commons’ reaction to the first answer can be found in Commons Debates 1628, Vol. IV, p. 139 – 140. 265 Haivry, p. 45. 266 Commons Debates 1628, Vol. IV, p. 185. 267 Read Foster, “Petitions and the Petition of Right,” p. 22, 24, 44; Haivry, p. 45; Berkowitz, p. 191 – 192.

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fires.”²⁶⁸ On the 10th of June Charles sent a message to the Commons desiring that the Petition of Right should be enrolled not only on the Parliamentary statute roll but also on all the Westminster court rolls, as well as printed.²⁶⁹ The record-making surrounding the Petition was a subject of detailed and prolonged discussion in the Commons on the 18th of June, Selden insisting that it must be sent to the Chancery by a formal writ of certiorari and from there to the various courts by a writ of mittimus. ²⁷⁰ Hakewill then apparently tried to correct him by noting that the Parliamentary Clerk would require a breve ad clericum parliamenti ad in rotulandum in order to be able to enrol the petition in the Parliamentary statute roll to begin with, before he could then issue the certiorari to the Chancery and they could then issue a mittimus. ²⁷¹ While Selden assented to Hakewill’s suggestion that the petition be titled “The petition of right of the Lords and Commons […] with his Majesty’s royal answer thereto in full parliament, containing the fundamental liberties of the kingdom,” he disagreed with Hakewill’s interpretation of legal recordkeeping requirements in the specific context of the petition.²⁷² Selden stated that “The petition itself is the record” so that nothing further was required for it to be legally binding, consistent with the historically-based interpretation that a parliamentary petition and Royal answer constitute a complete Act of Parliament (an understanding which the King’s Lord Keeper seemed to mirror when he stated that “the petition and answer is a record of itself”); that “The Clerk of the Parliament has no roll” and that the journal was not yet a roll either since, as Eliot commented, it was not made up until the end of the session and then sent to the Chancery; but that a writ of certiorari should still be sent to the Chancery and from thence a mittimus. ²⁷³ Though he did not make it explicit, Selden’s concern seems to have been for the securing of the Petition through multiple copies in various court repositories, in contrast to Hakewill’s apparent interpretation that the Petition would not actually be a record until it had gone through this process. (That detailed knowledge of legal recordkeeping was a matter of professional prestige is suggested by an amusing bit of pedantry by Coke, reminding the other MPs that the Chancery could not issue a mittimus until the record was actually before it.)²⁷⁴

268 Commons Debates 1628, Vol. IV, p. 205. 269 Commons Debates 1628, Vol. IV, p. 280 – 281, fn. 1, also p. 293. 270 Commons Debates 1628, Vol. IV, p. 364. 271 Commons Debates 1628, Vol. IV, p. 364. 272 Commons Debates 1628, Vol. IV, p. 364. 273 Commons Debates 1628, Vol. IV, p. 364, 369 – 370. 274 Commons Debates 1628, Vol. IV, p. 369. The conversation seems connected to Sir Robert Phelips’s earlier comment on the 27th of May 1628 that the complete Petition (with request from Com-

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The disappointment and outrage were great when, in reaction to Parliament’s attacks on Villiers and drafting of a remonstrance against the unconstitutional raising of tonnage and poundage, Charles personally prorogued Parliament on the 26th of June 1628.²⁷⁵ The Petition of Right had not resolved the constitutional impasse, as Parliamentarians had hoped: it transpired that the King did not, in fact, share Parliament’s interpretation of the Petition, and that he still felt, as he made explicit on the 17th of June, that “matters of religion and matters of state […] did more properly belong to his knowledge” than Parliament’s.²⁷⁶ After Charles re-summoned Parliament in January 1629 in the hope of a vote for tonnage and poundage, Selden’s suspicions of Royal bad faith concerning the Petition of Right were proven correct.²⁷⁷ It was found – in part by an investigative select committee formed on Selden’s motion, which interviewed the Royal printers – that Charles’s speech closing the previous session in which he had minimised the Petition’s importance had been inserted into the Parliamentary Journal, Parliament’s own official record; the official published version of the Petition with the second, satisfactory assent had been suppressed; and the ‘official’ published version was now the one with the first, unsatisfactory assent.²⁷⁸ These actions had been taken on Attorney-General Heath’s orders (once more showing his penchant for records falsification).²⁷⁹ Selden attacked various apparent “violations of the Petition” by the Crown during Parliament’s absence, including instances of ‘discretionary’ imprisonment and the complaints of London merchants – particularly the case of John Rolle, who was also an MP – whose goods had been confiscated due to their refusal to pay tonnage and poundage.²⁸⁰ He mentioned a case in which Star Chamber had sentenced a defendant to have his ears cut off: “next mons and Lords and answer from the King, which Phelips terms a “resolution” that “the judges in Westminster Hall” would be bound to follow) “is no scroll to be lost at Whitehall or elsewhere, but a record fit for the Tower.” Emphasis added. (Commons Debates 1628, Vol. III, p. 630). This comment incidentally highlights the prestige that the Tower repository had gained in the eyes of Parliament as a source for constitutional research. (Gajda and Cavill, p. 41 together with p. 67, fn. 87.) It is not clear whether, with the remark about scrolls lost in Whitehall, Phelips was casting an aspersion on the State Paper Office. 275 Haivry, p. 46; Read Foster, “Petitions and the Petition of Right,” p. 44; Commons Debates 1628, Vol. IV, p. 480 – 481; Berkowitz, p. 198 – 199; Christianson, Discourse on History, p. 159. 276 Read Foster, “Petitions and the Petition of Right,” p. 44; Commons Debates 1628, Vol. IV, p. 357; Christianson, Discourse on History, p. 159. 277 Hunneyball, “Selden, John”; Christianson, Discourse on History, p. 163. 278 Hunneyball, “Selden, John”; Commons Debates for 1629, p. 4 – 5, 8 – 9; Commons Debates 1628, Vol. IV, p. 204, fn. 39; Berkowitz, p. 204 – 207; Christianson, Discourse on History, p. 164 – 165. 279 Christianson, Discourse on History, p. 188. 280 Hunneyball, “Selden, John”; Haivry, p. 46 – 47; Berkowitz, p. 206, 215 – 218; Christianson, Discourse on History, p. 166 – 175.

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they will take our arms, and then our legs, and so our lives. Let all see that we are sensible of these customs creeping upon us.”²⁸¹ On the 2nd of March 1629, Sir John Eliot produced “a strongly worded protestation” against tonnage and poundage, and this led to the spectacular events in which the Speaker, following Charles’s orders, refused to call a vote on Eliot’s motion and instead tried to adjourn the sitting as a first step to the dissolution of Parliament.²⁸² The Commons erupted in shouts of protest, two of the MPs “forcibly held the Speaker in his chair” so that he could not adjourn the session by leaving the building, the doors were bolted against Black Rod, whom Charles had sent to “announce the adjournment of the house,” and Eliot’s “protestation was passed by acclamation” in a legendarily noisy and violent end to this Parliament (dissolved by Charles on the 10th of March), the beginning of Charles’s Personal Rule.²⁸³ 281 Hunneyball, “Selden, John”; Commons Debates for 1629, p. 5; Berkowitz, p. 205; Christianson, Discourse on History, p. 165. 282 Haivry, p. 47– 48; Berkowitz, p. 223 – 226. 283 Haivry, p. 47– 48; Toomer, p. 329 – 330; Commons Debates for 1629, p. 104 – 106. It is hard not to feel sympathy with the Speaker at the harrowing account of the build-up to this scene in the Parliamentary report. Torn unbearably between the demands of the MPs and Charles’s command (Selden warned him that his conduct could provide a precedent for crooked Speakers in future), he answered in floods of tears “I will not say, I will not, but I dare not,” and protested “that he had been their faithful servant, and would gladly sacrifice his life for the good of his country; but he durst not sin against the express command of his Sovereign.” The hard-hearted Sir Peter Heyman (like the Speaker, from Kent), “notwithstanding the Speakers extremity of weeping and supplicatory oration quaintly eloquent […] bitterly inveighed against him, and told him he was sorry he was a Kentish man, and that he was a disgrace to his country, and a blot to a noble family, and that all the inconveniences that should follow, yea, their destruction, should be derived to posterity as the issue of his baseness, by whom he should be remembered with scorn and disdain.” (Commons Debates for 1629, p. 104 – 105.) As dramatic as this may seem to today’s sensibility, it is important to bear in mind that early modern English male affect was substantially different. When on the 5th of June 1628 the King tried to censor the Commons’ debates on any ‘scandal’ attaching to his ministers and warned them that Parliament would be prorogued on the 11th of June, there were outbursts of sadness – Sir Francis Seymour exclaimed “We are all so miserable that I know not what to do,” Sir Dudley Digges observed in despair that this message had “taken away the fundamental liberty of parliament, which was freedom of speech” so that Parliament could only “sit in silence,” and Sir Robert Phelips speculated that he himself might never speak again in the House, expressed an intention of praying for the King, and then wept – on the next day Mr. Strode reminisced about the “tears of the House.” (Commons Debates of 1628, Vol. IV, p. 123, 129, 154.) One eyewitness later recalled seeing at least fifty MPs in floods of tears, while Coke was so overcome by crying that he could not remain standing. (Berkowitz, p. 189 – 190.) It fell to Sir Edward Giles to rouse his colleagues from their enervating melancholy: “let us put on the spirits of Englishmen and speak to purpose” (Commons Debates of 1628, Vol. IV, p. 123). On the next day, the 6th of June, Sir John Eliot commented on his own dramatic change of mood from the previous day, “then sorrow, now joy,” at the news that Charles was willing to speak with Parliament, and concluded

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Charles then issued warrants to arrest and imprison the Parliamentary leaders whom he viewed as responsible for these outrages, including Selden and Eliot, and the Attorney-General, having determined that treason charges would not stick, concocted a very vague accusation of “conspiracy and sedition”; Toomer states that the case in fact collapsed when the Star Chamber judges informed Heath and Charles “that the charge had no legal basis,” but the prisoners still remained in custody.²⁸⁴ In the holdings of the Crown’s ‘secret’ archive, the State Paper Office, are located “two manuscript copies of an account of the events in the Commons on March 2, 1629,” anonymous and undated, but apparently written immediately afterwards “and from rather full notes taken on the speeches during their delivery,” which Berkowitz states were composed by courtiers who had been present during the session.²⁸⁵ These notes formed the evidential basis for the arrest warrants issued by the Privy Council, and the narrative provided to the presiding judges in the Star Chamber proceedings.²⁸⁶ (This is one of the instances in which the State Paper Office functioned as a repository for intelligence on the Crown’s political enemies.) Immediately Selden’s room was sealed up and his own papers thereby confiscated, which Berkowitz suggests was in order to secure evidence, and to begin with he was allowed no books nor stationery in his Tower prison.²⁸⁷ On the 29th of July Charles granted Selden’s petition for his study to be unlocked so that his friend Edward Herbert could bring him some books – which Selden was forced to list, requesting “the Babylonian and Jerusalem Talmuds and Lucian” (the Babylonian Talmud had been obtained via Cotton’s good offices from the library of Westminster Cathedral) – and he was permitted to make notes, though he was given “only nineteen sheets” of paper, and his warder was required to initial them.²⁸⁸ Twenty years later he proudly kept these pages, meanwhile bound into a volume, as a memorial of his political imprisonment.²⁸⁹ This new crisis gave Selden the opportunity to go on the attack for the principle of no imprisonment without charge under the law of the land, applying to the Court of King’s Bench for a writ of habeas corpus. ²⁹⁰ Charles insisted that the pris-

“For our liberties, his Majesty gives us all comfort and joy” (Commons Debates of 1628, Vol. IV, p. 150). It is a bitterly ironic episode, given his subsequent political martyrdom in the Tower. 284 Haivry, p. 49; Toomer, p. 330; Berkowitz, p. 232; Christianson, Discourse on History, p. 180 – 183. 285 Notestein and Relf, Commons Debates for 1629, lxvi-lxvii; Berkowitz, p. 232. 286 Notestein and Relf, p. lxviii; Berkowitz, p. 232. 287 Toomer, p. 330 – 331; Berkowitz, p. 233. 288 Toomer, p. 331 – 332, 447, 804; Berkowitz, p. 233 – 234; Christianson, Discourse on History, p. 190. 289 Berkowitz, p. 234. 290 Haivry, p. 50.

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oners should admit to wrongdoing and throw themselves upon his mercy, while the prisoners maintained that they had committed no crime and must be tried for a specific, recognised offence before the courts.²⁹¹ At stake in his own case, Selden recognised, was the entire validity of the Petition of Right, since “if the crown’s claim for a general and arbitrary detention was accepted, then the Petition would be in effect nullified.”²⁹² (The other main issue, as Berkowitz draws out in his detailed discussion of the labyrinthine court proceedings, was the principle of Parliamentary free speech.)²⁹³ When the Crown was eventually forced by the writ of habeas corpus to name the offence as ‘sedition,’ counsel for the prisoners noted that “there was no Common Law crime of sedition,” and that even if such an offence existed it would not be a capital crime, so that the prisoners could be bailed under common law precedent, “Magna Carta and the Petition of Right.”²⁹⁴ They were finally brought before King’s Bench for the bail proceedings “after more than eight months,” a wait which Toomer attributes to Charles’s and Heath’s “delaying tactics.”²⁹⁵ Selden and his counsel (Littleton) won the substantive arguments, with most of the justices in King’s Bench and Star Chamber admitting that the courts had no legal jurisdiction over Parliament and that Selden’s interpretations of “the right to bail” and the Petition of Right’s authority were correct.²⁹⁶ In the end the prisoners were denied bail by right only on an obscure technicality and were then moved to the Tower of London, over which the common law courts had no jurisdiction.²⁹⁷ Having lost on the substantive issues, the King then succeeded in perverting the law with another procedural technicality when he made the judges offer the prisoners bail by right on condition of providing security “for good behaviour,” which would normally only be required for capital crimes and, as Selden instantly recognised, would mean that the prisoners tacitly admitted the illegality of Parliament’s recent behaviour; most of the prisoners refused the offer.²⁹⁸ Selden vigorously condemned the manoeuvre in a speech in court, arguing that to accept the offer of bail for good behaviour – rather than by right – would be to admit a discretionary power to grant bail on the part of

291 Haivry, p. 49. 292 Haivry, p. 51. 293 Berkowitz, p. 241. 294 Haivry, p. 50. 295 Toomer, p. 330. 296 Haivry, p. 53. 297 Haivry, p. 52 – 53; Berkowitz, p. 259 – 260; Christianson, Discourse on History, p. 190. 298 Haivry, p. 53 – 54; Hunneyball, “Selden, John”; Fry; Berkowitz, p. 261 – 264; Christianson, Discourse on History, p. 190 – 191.

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the Crown.²⁹⁹ It is interesting to note that Attorney-General Heath had made yet another foray into records falsification by illicitly removing the record of the proceedings from the Star Chamber file – an offence with which he was charged by Star Chamber in November 1629.³⁰⁰ This “voiding of process” had the effect of turning the Star Chamber hearing “into a non-case,” so that it was omitted from contemporary case reports and indeed the later famous State Trials collection, despite its extreme constitutional importance.³⁰¹ So Selden remained in the Tower of London for the present, but still managed to refute accusations of involvement in the strange affair of the ‘seditious’ tract over which Cotton’s collection was sealed in 1629 by engaging no less than four legal representatives, a sign of how seriously he took this matter.³⁰² Clearly Charles was doing his best to have ‘sedition’ established as an offence, and no doubt part of his motivation for the Cotton affair was to find another way of attacking Selden after his defeat in the substantive arguments in Selden’s own trial. At the beginning of 1630 Selden was moved to the pleasanter Marshalsea Prison, where he had better access to research materials, and essentially became a day-release prisoner, interspersed with a period at the Westminster Abbey Gatehouse during which he was allowed to go and stay with the Earl of Kent.³⁰³ His release in May 1631, though effected by the Earls of Arundel and Pembroke, seems to have been masterminded by the Countess of Kent, on the ground that only Selden’s unparalleled knowledge of conveyancing could help to untangle the complicated case of the Talbot inheritance, in which she had an interest.³⁰⁴ The question of bail conditional upon good behaviour was avoided by releasing him “into the custody of his friends” on condition of renewing the bail application personally (and biannually) at the Court of King’s Bench.³⁰⁵ These remaining restrictions were eventually lifted by the intervention of Archbishop Laud, who paved the way for a petition of grace by Selden to the King, granted in 1635.³⁰⁶ During the period of his imprisonment Selden managed to complete a history of Jewish property law and – significantly, in light of his Par-

299 Haivry, p. 53 – 54; Toomer, p. 330; Berkowitz, p. 263 – 264; Christianson, Discourse on History, p. 191. 300 Berkowitz, p. 341, note 68. 301 Berkowitz, p. 341, note 68. 302 Haivry, p. 54 – 55; Fry; Toomer, p. 331; Berkowitz, p. 268 – 275. 303 Haivry, p. 55 – 56; Toomer, p. 331 – 332, 447; Berkowitz, p. 275. 304 Haivry, p. 56 – 57; Fry; Toomer, p. 332; Berkowitz, p. 283. 305 Haivry, p. 57; Toomer, p. 332. 306 Haivry, p. 57– 58; Fry; Toomer, p. 332, 390 – 391; Berkowitz, p. 288 – 290; Christianson, Discourse on History, p. 191.

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liamentary involvement – began a work on “the judicial and political councils of the ancient Hebrews,” while in 1636 he published an account of the Jewish high priesthood beginning with Aaron.³⁰⁷ He later stated that while in the Tower he had drafted a plan for a series of works covering “Jewish legal tradition.”³⁰⁸ Strangely, given the previous tensions between Selden and the Crown, he soon regained his favour at Court in the fairly placid political period of the Personal Rule, in 1635 declining a diplomatic appointment to Vienna, and receiving permission to publish Mare Clausum (which Villiers had suppressed) in an expanded edition.³⁰⁹ Selden’s release may have been a quid pro quo – freedom in exchange for agreeing to publish this politically now very useful work – and there was a rumour that Archbishop Laud had persuaded him to do so.³¹⁰ The project was immediately prompted by a dispute with the Dutch over fishing rights off the coasts of England, but it was also in line with Charles’s long-term maritime policy objective of “building up a fleet to enforce England’s dominion” of these waters.³¹¹ In contrast to Selden’s other works, Toomer dismisses Mare Clausum as “a lawyer’s brief rather than a historical treatise,” and implies that his wealth of research in primary sources, particularly in the public records, was wasted on what was always going to be a political project.³¹² The government viewed the book as so important that the Privy Council entered an order in its own minutes that one copy should be kept in the Council’s chest, one “in the court of Exchequer,” and another “in the court of Admiralty, as faithful and strong evidence of the dominion of the British seas.”³¹³ (The work also unleashed vituperation against Selden on the Continent, which, Bayley philosophically concludes, was only to be expected.)³¹⁴ The practical importance of the work is shown by Selden’s friendship with the Earl of Northumberland, “Admiral of the ‘Ship-Money’ Fleet,” whose first task was “an expedition in 1636 to force Dutch ships, fishing in waters over which England claimed dominion, to purchase an English fishing license” or have their nets cut.³¹⁵ This domestically tranquil period allowed Selden to devote most of his remaining scholarly career to his great exploration of Jewish law: the most important of these books, 1640’s Jure Naturali (in Toomer, De Iure Naturali) “on the Jewish version

307 308 309 310 311 312 313 314 315

Haivry, p. 63 – 64; Bayley, p. 245. Haivry, p. 63. Haivry, p. 58, 61. Toomer, p. 390 – 391; Berkowitz, p. 291. Bayley, p. 245; Haivry, p. 61. Toomer, p. 433. Bayley, p. 246. Bayley, p. 246. Haivry, p. 61.

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of natural law,” was a formidably-researched comparative legal and philosophical work, which for the first time presented “non-Jewish readers with a detailed treatment of one aspect of Talmudic doctrine: the moral duties incumbent on all men, such as had never been done for any part of Jewish law before.”³¹⁶ However, Selden refused to take an active role in Charles’s government, which Toomer attributes to his traumatic experience of imprisonment for defending the Constitution, and he also withdrew from the political debates concerning ship-money.³¹⁷ When the Scottish Rebellion eventually forced Charles to summon what would become the Long Parliament in the autumn of 1640 (an abortive three-week-long Parliament in the spring had been dissolved for its lack of co-operation), Selden was returned as one of two MPs for Oxford University.³¹⁸ Though he was very active on various committees concerned with constitutional questions, his essentially conservative, reform-minded mentality was increasingly at odds with a far more radical and polarised Parliament than those to which he had previously been elected.³¹⁹ He opposed the hypocritical denials of fair trials to Strafford (1641) and Archbishop Laud (1644) through the passing of Bills of Attainder against them for ‘treason,’ which led to their executions.³²⁰ Throughout the 1640s he continued to defend an increasingly isolated moderate position as a proponent of the mixed constitution, balanced between Parliament and the monarch, though all during this eight-year involvement in the Long Parliament Selden was unwavering “in his support for the parliamentary cause.”³²¹ As civil war threatened in 1642, after Charles had made the mistake of entering Parliament at the head of four hundred armed men to arrest the Parliamentary Radicals on the 4th of January, both Parliament and King tried to raise armies without the assent of the other, and Selden pronounced both attempts illegal.³²² Toomer believes that Selden probably drafted Parliament’s “A second Declaration of the Lords and Commons assembled in Parliament concerning the Commission of Array,” since it contained “many excerpts from records in the Tower and the Exchequer.”³²³ Selden consistently did all he could to stave off war, but was of course ultimately unsuccessful.³²⁴

316 317 318 319 320 321 322 323 324

Haivry, p. 58 – 59, 62, 64 – 65; Toomer, p. 560. Toomer, p. 392 – 393. Haivry, p. 67; Bayley, p. 246; Toomer, p. 564. Bayley, p. 246; Haivry, p. 69 – 70. Haivry, p. 70 – 71, 82; Toomer, p. 565; Berkowitz, p. 293. Haivry, p. 80; Toomer, p. 565. Haivry, p. 73 – 75; Toomer, p. 565. Toomer, p. 565 – 566. Haivry, p. 77– 79.

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One particular incident on the path to war suggested that Charles himself had by now learnt the value of archival research and how to wield historical precedents to great symbolic effect. When Parliament attempted to make itself the supreme power in the state through the Nineteen Propositions, passed on the 1st of June 1642, the King rejected these propositions with the words “‘Nolumus Leges Angliae mutari’ (We do not wish the Laws of England to be changed),” a direct quotation from the “earls and barons […] at the 1235 Parliament held at Merton” during the reign of Henry III, the outcome of which was seen as “the first English statute law.”³²⁵ Charles was thereby presenting himself as the defender of the Ancient English Constitution.³²⁶ (Interestingly, Styles notes that the Personal Rule was anomalous in English history in that during it, Charles consistently attempted to base his policies “on historical research.”)³²⁷ On the 9th of November 1643 the Commons paid Selden the compliment of making him Keeper of the Tower records, an office which he retained at least until Cromwell’s order of 1651.³²⁸ Toomer suggests that this was “a reward for his services, for although he was eminently qualified, the work was done by two clerks, while the Keeper received the profits,” while Edwards implies that Selden made no practical contribution to the office.³²⁹ Haivry, however, states that he actually exercised this office, while refusing to draw the income associated with it.³³⁰ Throughout the Civil War period Selden engaged himself vigorously against records destruction and theft in various repositories: indeed, Toomer observes that Selden “had a hand in protecting all the […] major libraries in London” apart from the Arundel collection, many of which were directly under threat because of their owners’ known Royalist sympathies.³³¹ As previously described, the Royal Library itself was seized by Parliament after the King’s execution and entrusted to the care of the radical Puritan preacher and would-be records arsonist Hugh Peters, with unhappy results: books were soon discovered there lying in chaotic piles and the Council of State issued an order for the collection’s preservation, but despite Selden’s insertion of his friend Bulstone Whitlocke as librarian, it suffered “considerable losses” connected to plundering by soldiers.³³² Selden likely

325 326 327 328 329 330 331 332

Haivry, p. 76. Haivry, p. 76. Styles, p. 70. Haivry, p. 94; Fry; Toomer, p. 566. Toomer, p. 566 – 567; Edwards, Libraries, p. 248. Haivry, p. 94. Toomer, p. 579 – 580. Toomer, p. 582 – 583.

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contributed to establishing the Parliamentary committee formed soon after the outbreak of war to inventory and take into safekeeping sequestered “manuscripts and books” in the London area, and he was also active in the committee’s work.³³³ As the war went on Selden defended other academic interests as well, resisting attempted political and religious purges of the faculties at Oxford and Cambridge, and advocating against an apparent threat to abolish the universities altogether in 1647.³³⁴ He acted to protect the university libraries, Lambeth Palace library and archives (arranging the collection’s transfer to Cambridge University – although public, it had been sealed up by Parliament in 1641 upon Archbishop Laud’s imprisonment in the Tower of London), and the Cotton collection; there is a tradition that with the outbreak of the Civil War Selden was given the Cotton collection’s key, thereby becoming its de facto Keeper.³³⁵ However, Sharpe makes the apparently contrary statement that Sir William Dugdale was the custodian of the collection “during the Civil War and Commonwealth period” and describes Selden’s contribution as protecting “the collection from plunder.”³³⁶ Dugdale and Selden are reported to have occupied themselves during the war with sorting and binding “Cotton’s papers.”³³⁷ Haivry states that “From 1643 to his death” Selden fended off attempted records seizures and protected the collection for Cotton’s heirs, but simultaneously provided access to younger researchers.³³⁸ The collection was under threat of seizure or destruction because the estates of Sir Thomas Cotton – suspected of being a Royalist – had been sequestered, and “Selden used his influence with the parliamentarians” to protect the collection and the Cotton family’s interests in general.³³⁹ Given what had gone before, it is easy to imagine that Selden saw the defence of the various unique documentary evidences of the English Constitution, some of which had earlier served him as ammunition in the struggle between Parliament and an over-reaching Crown, as an existential issue for the survival of the very constitution for which he continued to fight in his Parliamentary career. Protecting the records was essential to carrying on the battle for the mixed constitution in a time of polarisation. Throughout the decade’s increasing violence, turmoil, and ex-

333 Toomer, p. 580. 334 Haivry, p. 84; Bayley, p. 248 – 249; Toomer, p. 575 – 576. 335 Haivry, p. 84, 90 – 91, 96 – 97; Sharpe, Sir Robert Cotton, p. 82; Toomer, p. 564, 580 – 581; Berkowitz, p. 295. Tite casts doubt on the story of the key, noting that he has been unable to find any contemporary source to verify it. Tite, The Panizzi Lectures, p. 64 fn. 18. 336 Sharpe, Introduction (Sir Robert Cotton as Collector), p. 2, 4. 337 Sharpe, Sir Robert Cotton, p. 82. 338 Haivry, p. 19. 339 Tite, The Panizzi Lectures, p. 63; Toomer, p. 580.

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tremism, Selden was steadfast and careful in his support of a middle course, the core of a small group of moderates (mostly common-law jurists).³⁴⁰ He noted that “In a troubled State we must do as in foul Weather upon the Thames, not think to cut directly through, so the Boat may be quickly full of Water, but rise and fall as the Waves do, give as much as conveniently as we can.”³⁴¹ In another homely but remarkably subtle political metaphor, he evoked the nerve-wracking and lengthy experience of prosecuting a dissenting position in Parliament: first there be a great deal of do, and a great deal of noise, which mad wild folks make; just as in brewing of Wrest-Beer, there’s a great deal of business in grinding the Mault, and that spoils a man’s clothes that comes near it; then it must be mash’d; then comes a fellow in and drinks of the wort, and he is drunk; then they keep a huge quarter when they carry it into the Cellar, and a twelvemonth after it is delicate, fine Beer.³⁴²

Selden remained dogged in this task, and in 1648 he was even successful in winning over a Parliamentary majority for a peace settlement, until Pride’s Purge on the 6th of December 1648 (the military coup in which the Commons came under the Army’s control and moderate MPs were excluded).³⁴³ Selden and other famous jurists withdrew from London in January 1649 in disgust and horror at the abuses of law inherent in the trial of the King.³⁴⁴ Charles, very oddly, was imprisoned in Robert Cotton’s house before his execution.³⁴⁵ It is not clear whether Cromwell intended the ironic symbolism of locking Charles up in the home of precedents that had undermined the monarch’s own constitutional arguments; whether he was making a political statement with regard to the Crown’s previous closures of the Cotton Collection; or exactly what role Selden played in this drama, if indeed he was the House’s key-holder. Selden refused to be co-opted by the Cromwellian regime, to the extent of declining what must have been a tempting opportunity to write a Constitution for the new English state.³⁴⁶ (The new government found a translated version of Mare Clausum very useful for propaganda purposes in 1652, during the first war with

340 Haivry, p. 83, 92. 341 Selden, Table Talk, quoted in Haivry, p. 83. 342 Selden, Table Talk, quoted in Haivry, p. 88 – 89. 343 Haivry, p. 89 – 90; Toomer, p. 567. The circumstances are murky: Toomer doubts whether Selden himself was officially excluded in the purge. 344 Haivry, p. 90. 345 Haivry, p. 90 – 91; Tite, The Panizzi Lectures, p. 80. 346 Haivry, p. 94 – 95. Cromwell’s own 1653 Instrument of Government represented a total break with English constitutional convention, citing no historical precedents whatsoever.

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the Dutch.)³⁴⁷ However, he did provide the government with informal advice, notably on matters concerning international law, and kept close track of the new regime’s movements by plastering the walls and doors of his home with its recent Acts.³⁴⁸ Upon his death in 1654, his own collection of books and manuscripts, most of which was transferred to Oxford University, contained more than 8,000 volumes, described by Berkowitz as “a monument to the enduring impact of humanist scholarship in English life and learning.”³⁴⁹ His burial in Temple Church was attended by the legal and political establishment, including all the members of the Bar and the judiciary, as well as MPs and government officers.³⁵⁰ Selden’s career as a constitutional theorist and tenure as an archives-keeper display the power of records, archives, and detailed knowledge of court recordkeeping requirements to change the course of legal history and discomfit the government. His fame as a jurist, Parliamentarian, and antiquarian researcher demonstrates once again the seamless integration of these various callings in many careers of the time. Toomer feels that Selden’s wide-ranging works of history were not written in the service of any specific worldview or political theory, although they contain passages that chime with the convictions that he expressed in Parliament.³⁵¹ However, it is not possible to separate Selden’s political career from his output as an historian: certainly he explicitly recognised the usefulness of historical research to contemporary constitutional questions, commenting that it “gives necessary light to the present, in matter of state” in his dedication of the Historie of Tithes to Cotton.³⁵² It seems most likely that Selden came to his political convictions, at least in part, in the process of researching and writing works of history motivated by his natural curiosity. The foregoing account has shown that the painstaking archival research technique that he developed along the way served England well in the battle for freedom of the person and security of property. There is doubt as to whether Selden retained the position of Keeper of the Tower records until his death (given the apparent appointment of the Master of the Rolls by Cromwell in 1651). However, it is certain that on the Restoration of

347 Haivry, p. 95. 348 Haivry, p. 95; Toomer, p. 567– 568. 349 Bayley, p. 249; Toomer, p. 793 – 794; Berkowitz, p. 296. Selden had explicitly bequeathed his peerless collection of Judaica and some other sources to Oxford (Toomer, p. 793). However, his sources for English law came into the possession of two lawyers who were responsible for executing his will (Toomer, p. 795). 350 Bayley, p. 249; Toomer, p. 791. 351 Toomer, p. 817– 818. 352 Quoted in Hazeltine, “Selden as Legal Historian: A Comment in Criticism and Appreciation. I,” p. 112.

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Charles II in 1660, the post was given to “the celebrated William Prynne.”³⁵³ Thus the office passed to a very different personality: a pamphlet controversialist turned convinced Restorer, determined to exploit the records for his own particular view of the Ancient Constitution, which he fervently believed to be right. Like Selden’s, Prynne’s appointment as Keeper was political, but in this case a reward for services rendered to the Crown rather than Parliament.

353 Bayley, p. 250.

19 William Prynne and the counter-revolution in the records editions Prynne is one of the most arresting characters of the seventeenth century, described memorably by Aubrey as having “a strange Saturnine complexion.”¹ A contemporary remarked that he looked like “a Witch,” while another wrote of his “long meager face” with his “eares cropt close to his head, which is stuft with Plots.”² The surviving portrait of Prynne shows a melancholy, ascetic, and earnest countenance, with his hair grown over his mutilated ears.³ He had been the victim of a particularly cruel persecution by the Stuart censorship, so that it was hardly surprising that in later life he often seemed intense to the point of unhinged, his reasoning – as demonstrated by Lamont – sometimes prone to muddle and inconsistency. In particular, he was obsessed with ‘Popery’ and saw Jesuits everywhere, convinced that they could shape-shift.⁴ Nevertheless, he was “a man of great legal erudition” and “indefatigable in whatever he undertook.”⁵ Prynne’s anti-Papist zeal and work ethic are reminiscent of the earlier career of the fanatical Calvinist Thomas James, the first librarian of Oxford’s Bodleian. Like Prynne, James was convinced of the infallibility and “purity of the English manuscript tradition.”⁶ Prynne’s literary output was astounding, as the century’s “most prolific writer,” and Aubrey has left an interesting description of his writing routine: “he wore a long quilt cap, which came two or three inches at least over his eyes, which served him as an umbrella to defend his eyes from the light; about every three hours his man was to bring him a roll and a pot of ale to refocillate his wasted spirits: so he studied and drank, and munched some bread; and this maintained him till night, and then he made a good supper.”⁷ If, as this suggests, the bulk of his writings was completed in a state of low-level intoxication, this may explain something of their – even by seventeenth-century standards – extraordinary aggressiveness. The sensitivity to light may have been a legacy of the tortures that he had suffered on account of his writings.

1 Aubrey, Brief Lives, Vol. II, p. 509. 2 Lamont, Marginal Prynne, p. 1. 3 Lamont, Marginal Prynne, Figure 1. 4 Lamont, Marginal Prynne, p. 1. 5 Bayley, p. 255. 6 Nelles, p. 24. 7 Aubrey, p. 508; also quoted in Taylor, “The Discipline of History and the Education of the Archivist,” p. 401 – 402 (and many others). https://doi.org/10.1515/9783110791464-021

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He is chiefly remembered for such eccentricities, including an anti-Papist fanaticism that could make him unreliable as to matters of fact. Prynne’s fervent belief that the Great Fire of London had been set by Pope Alexander VII, having secretly entered England for this purpose disguised as a coalman, came down to posterity in dubious collections of entertaining miscellanea such as The Recreative Review, or Eccentricities of Literature and Life, by Anonymous.⁸ To later ages he frequently seemed inadvertently hilarious, notably his vituperation in 1628’s The Unloveliness of Love-Lockes against “the wearing of Supposititious, Poudered, Frizled, or extraordinary long Haire” by men, and make-up and short hair on women.⁹ Such concerns, combined with his appalling sufferings and a style hampered by the worst sort of repetitive English legalese, have tended to overshadow his earnest use of records to prove his constitutional points. Prynne was much more than simply fanatical, unfortunate, or comical. His courage – both intellectual and physical – was remarkable. His output shows extreme partisanship, perhaps the most striking example of the blurred boundary between historical research and political agitation that the seventeenth century has to offer. Born in 1600 (Helms and Cassidy say circa 1602) to a tenant farmer in Swainswick, a West Country village, Prynne had a comfortable upbringing.¹⁰ He graduated from Oxford with a Bachelor of Arts in 1621, and then, like Selden, became a pupil of the common law at Lincoln’s Inn, called to the bar in 1628 and later made a reader.¹¹ Also like Selden, he spent much of his time at Lincoln’s Inn exploring subjects other than law.¹² Unlike Selden, however, he concentrated heavily on “divinity,” spending much time (as Bayley puts it) “in the conversation of factious and hot-headed divines,” combining this interest “with the rudeness and arrogance of his own nature” to become a vehement opponent of the Established Church and government, expressing himself in what Bayley calls “several absurd, petulant, and supercilious discourses in print.”¹³ Nevertheless, Prynne did not neglect his law studies: Aubrey relates that in this respect he was “a very hard student,” with “a prodigious memorie.”¹⁴ 8 Anonymous, The Recreative Review, or Eccentricities of Literature and Life, Vol. I, p. 272. 9 Trevelyan notes that Prynne was not alone in this obsession: Puritan men often “cut their hair short” but left many tiny tufts sticking up hideously, to protest other men’s extravagant hairstyles. Trevelyan, p. 66. 10 Lamont, Marginal Prynne, p. 12; Helms and Cassidy, “Prynne, William”; Firth, “Prynne, William.” 11 Lamont, Marginal Prynne, p. 12; Helms and Cassidy, “Prynne, William”; Firth, “Prynne, William.” 12 Bayley, p. 251. 13 Bayley, p. 251. 14 Aubrey, p. 507.

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Lamont suggests that the received picture of Prynne’s extremism, as captured by Bayley, is inaccurate and based on his pugnacious style, rather than an actual analysis of his pamphlets’ contents.¹⁵ While these certainly had a “negative aim” (to stem the rising tide of Popery), Prynne also had a “positive aim” of improving the moral condition of England, which he envisioned as a nation “where men were abstemious, serious-minded, short-haired and shunned plays.”¹⁶ From 1626 – 40 Prynne expressed views that were (in their context) moderate and in fact supported the Elizabethan Anglican settlement, but he did so using a violent register.¹⁷ His most vigorous criticism was reserved for “the small group around Archbishop Laud” who were subverting this settlement by failing to crack down on drinking, theatre performances, and hair-styles.¹⁸ However, Prynne definitely did not want Calvinist or Presbyterian social control, but hoped for this programme to be enforced by the King as head of the Church and the “Christian Emperor,” so that while the critique was Puritan, the proposed “remedy was Anglican.”¹⁹ Prynne is very difficult to read. Alongside his extreme wordiness, he was very fond of marginal notes. Milton mocked his attempts to refute his own pamphlets on divorce as burdened by “the gout and dropsy of a big margent, litter’d and overlaid with crude and huddl’d quotations.”²⁰ Prynne’s wits, he added cruelly, were always off to the side, “lying ever beside him in the margent,” rather than in his main text.²¹ Prynne was therefore nicknamed “marginal Prynne”: of his more than two hundred writings, mostly journalistic pamphlets but some verse works too, every single one was weighted down by “prolix marginal references.”²² Margins stuffed with often questionably relevant authorities were, however, a common feature of (especially religious) propaganda at the time – in another context, Milton likened marginal authorities “to lumbering ships crashing into the side of the text […] to unload their freight of pointless alphabetized information.”²³ Prynne’s writing provides an extreme example of the political exploitation of research; not just the actual research, but the appearance of great amounts of research, an avalanche of sources in support of whichever policy was being argued, to overawe the

15 Lamont, Marginal Prynne, p. 13. 16 Lamont, Marginal Prynne, p. 2. 17 Lamont, Marginal Prynne, p. 13. 18 Lamont, Marginal Prynne, p. 13. 19 Lamont, Marginal Prynne, p. 2. 20 Milton, quoted in Lamont, Marginal Prynne, p. 2. 21 Slights, Managing Readers: Printed Marginalia in English Renaissance Books, p. 227– 228; Milton quoted in Slights, p. 243. 22 Lamont, “Prynne, Burton and the Puritan Triumph,” p. 104. 23 Slights, p. 243.

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reader. While Lamont suggests that “Prynne was […] the first modern historian: solemn, prolix, and packed with footnotes,” this fails to recognise the overtly partisan nature of Prynne’s purposes.²⁴ Further, despite his margins, Prynne was not nearly as illogical as often portrayed, with a “polemical cogency” which his style often served to obscure but which ultimately contributed to the Restoration.²⁵ Prynne’s first major confrontation with the Crown has already been briefly outlined in the section on censorship.²⁶ It is important to add that, while Charles took offence at his tome Histriomastix attacking actresses and ungodly rulers who countenanced theatre plays (unfortunately published the day after Queen Henrietta Maria had appeared in a Court play), Archbishop Laud, one of Prynne’s most frequent targets in his religious pamphleteering, seized the opportunity for revenge.²⁷ As in the cases of Selden and Cotton, the Crown prosecution performed contortions in the Court of Star Chamber in its attempt to locate ‘seditious libel’ in Prynne’s text, arguing “that underlying the bigotry was a subversive craving for novelty, which threatened the State.”²⁸ S. R. Gardiner noted that nothing so sophisticated as an attack upon the political or religious constitution could be read out of Prynne’s general, uncivil attack on the dramatic arts.²⁹ Laud’s retribution was vicious: after imprisonment in the Tower of London for a whole year (beginning on the 1st of February 1633), Prynne was finally sentenced on the 17th of February 1634 to life imprisonment, a fine of £5000, the loss of his Bachelor of Arts from Oxford, and expulsion from Lincoln’s Inn, as well as the punishment that captured the imagination of subsequent generations, the cropping of his ears.³⁰ This was, however, not an exceptional form of punishment at the time, as other examples in the State Papers make clear.³¹ Prynne’s spirit was not broken, and he continued to write floods of polemical religious works during his imprisonment in the Tower, such as A Breviate of the Bishops’ Intolerable Usurpations. ³² He was brought before Star Chamber again,

24 Lamont, Marginal Prynne, p. 30. 25 Lamont, Marginal Prynne, p. 7. 26 He briefly got into trouble in 1627 when his theological pamphlet The Perpetuity of a Regenerate Man’s Estate caused an official complaint by the Crown to Lincoln’s Inn. Author unknown, “June 18 – William Prynne.” 27 Firth, “Prynne, William”; Lamont, Marginal Prynne, p. 28 – 29. 28 Lamont, Marginal Prynne, p. 30 and 33; Kishlansky, “A Whipper Whipped,” p. 609 – 610. 29 Gardiner, quoted in Lamont, Marginal Prynne, p. 33. 30 Lamont, Marginal Prynne, p. 33; Firth, “Prynne, William.” 31 See e. g. the 1618 Star Chamber case of a John Wraynham from Norfolk who suffered the mutilation of his ears as punishment for describing one of Lord Chancellor Francis Bacon’s decrees as unjust. Cal. State Papers Dom. (1611 – 18), p. 537– 538. 32 Firth, “Prynne, William.”

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along with two other Puritan church critics, Bastwick and Burton, for a pamphlet attacking the Bishop of Norwich called Newes from Ipswich discovering certaine late detestable practises of some domineering lordly prelates. ³³ The outcome was grim for the Puritan activists: on the 14th of June 1637 they were sentenced to have their ears (or in the case of Prynne, what was left of them) removed, with the additional cruelty for Prynne of having the letters ‘S. L.’ carved into his face, which Laud meant to represent ‘Seditious Libeller’ but which Prynne subsequently joked, anti-Popishly, stood for ‘Stigma of Laud.’³⁴ Prynne was also fined an additional £5000 and, redundantly, sentenced again to life imprisonment.³⁵ The barbarous treatment of the three Puritan activists inflamed public opinion “in a way which previous cruelties had not” and contributed to increasing polarisation along religious as well as political lines, making Prynne a popular hero.³⁶ Prynne was now allowed much less freedom in his imprisonment, “deprived of pens and ink, and allowed no books except the Bible, the prayer-book, and some orthodox theology.”³⁷ He was also separated from his companions in the Tower by his removal first to Carnarvon Castle in July 1637 and then to Jersey, where he was imprisoned in Mount Orgeuil Castle.³⁸ The governor of Jersey, Sir Philip Carteret, was extremely kind to him, and Prynne, who had been prohibited from writing theological polemics, consoled himself by producing large quantities of nature verses, though Firth notes critically that “Rhyme is the only poetical characteristic they possess.”³⁹ The advent of the Long Parliament brought a dramatic reversal of fortune for Prynne. His petition for redress was immediately granted and he was returned to London, where he and Burton made a triumphal appearance to cheering Puritan crowds on the 28th of November 1640.⁴⁰ More than ten thousand well-wishers, “with rosemary and bays in their hats,” scattered “flowers and herbs” in their progress and inveighed loudly against the bishops.⁴¹ The Commons “declared the two sentences against Prynne illegal,” restored his Bachelor of Arts and his “membership of Lincoln’s Inn,” and voted him financial reparations, though it is unclear

33 34 35 36 37 38 39 40 41

Lamont, Marginal Prynne, p. 33 – 39; Firth, “Prynne, William.” Lamont, Marginal Prynne, p. 39; Firth, “Prynne, William.” Firth, “Prynne, William.” Lamont, Marginal Prynne, p. 39 – 41. Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William.” Bayley, p. 252; Isani, “Hawthorne and the Branding of William Prynne,” p. 182.

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whether these were ever actually paid.⁴² However, Prynne himself was not radicalised by his terrible experiences: “at least until 1641, his belief in moderation survived even the test of the executioner’s knife.”⁴³ He only moved towards the religious radicals in 1641, when he lost faith in the notion of a moderate episcopacy and accepted Presbyterian arguments for ‘root and branch’ reform of the Church.⁴⁴ The one instance in which Prynne addressed himself to constitutional controversies in his writing before the 1640s was an anonymous protest against shipmoney in 1637, which he did not publish until 1641, the year (according to Lamont) of his change of heart.⁴⁵ Only in this context did he finally “attack the menace of tyranny,” quoting James at Charles that “a King Governing in a settled Kingdome leaves to be a King and degenerates into a Tyrant as soone as he leaves to rule by his Lawes.”⁴⁶ Here Prynne was shifting his focus from Church to State, showing “a sure constitutional grasp.”⁴⁷ With the outbreak of war he became a leading propagandist for the Parliamentary side.⁴⁸ In 1642 he began to devote himself to constitutional questions, using “historical precedents” to maintain that the Parliamentary “cause was legal, that the parliament had the supreme control of the armed forces and of the great seal of the realm, and that the text ‘Touch not Mine anointed’ did not prohibit Christian subjects from defending themselves against their kings, but kings from oppressing their Christian subjects.”⁴⁹ Prynne was far from alone in this endeavour. A wider propaganda war during the early 1640s used historical research in mediaeval sources – and revived older works that had drawn upon such records – in order to find resonances with the contemporary political crisis, determine the circumstances in which a king could be removed and, as the decade wore on, ultimately defend the Regicide.⁵⁰ In 1643 Prynne wrote a defence of Parliamentary sovereignty, The Soveraigne Power of Parliaments. ⁵¹ This untidily-constructed 219-page work is notable for its exhaustive records research and empiricism, rejecting arguments from reason or natural law in favour of what Lamont describes as “a lawyer’s brief.”⁵² Indeed, 42 43 44 45 46 47 48 49 50 51 52

Firth, “Prynne, William.” Lamont, Marginal Prynne, p. 47. Lamont, Marginal Prynne, p. 79 – 80. Lamont, Marginal Prynne, p. 23. Lamont, Marginal Prynne, p. 23. Lamont, Marginal Prynne, p. 24. Firth, “Prynne, William.” Firth, “Prynne, William.” Peacey, “‘That memorable parliament,’” p. 329 – 342. Lamont, Marginal Prynne, p. 85; Firth, “Prynne, William.” Lamont, Marginal Prynne, p. 85 – 88.

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Prynne attacked recent writings in the Parliamentary interest for their “defect of punctuall Precedents, any Authorities to backe their rationall Discourse.”⁵³ Although concerned with Parliament’s rights, the text is still heavily taken up with the threat posed by “Popish forces” but also (somewhat illogically) references the ‘Popish’ precedents for the deposition of tyrannical kings, with many citations of ecclesiastical and Scholastic authorities in addition to the more expected recusancy statutes of the reigns of Elizabeth and James, and references to the Bible.⁵⁴ This strange gambit raises a question never answered by Prynne: “are Parliament’s proceedings against Kings in former times to be revered as precedents, or reviled as Papist?”⁵⁵ The more constitutionally-focussed part of this work draws in secondary sources including French jurist Jean Bodin and embarks on a comparative legal-historical study of parliaments and assemblies abroad, including France and the German realms.⁵⁶ A flavour of the intensive and wearying citation of primary sources in this work, as well as an impression of Prynne’s eccentrically legalistic and almost unreadable style, can be garnered from the following excerpt: the whole kingdome in Parliament, may not onely augment, but likewise abridge, allay, abolish, and resume some branches of the Kings royall power and prerogative if there be just cause, as when it becomes onerous, mischievous, or dangerous to the Subjects, inconvenient to, or inconsistent with the kingdomes, peoples welfare, peace, safety, Liberty, or the Lawes; This is most apparent by Magna Charta; Charta de Foresta, Statutum De Tallagio non concedendo, Articuli super Chartas, Confirmatio Chartarum, 1 E. 3. c. 6, 7. 2 E. 3. c. 2. 8. 3 E. 1. c. 35. 9 E. 3. c. 12. 5 E. 2. c. 9. 10 E. 3. c. 2, 3. 14 E. 3. c. 1. 14. 18 E. 3. c. 8. 25 E. 3. c. 4. Stat. 3. c. 1, 2. & Stat. 5. c. 8. 11. 36 E. 3. c. 10. 37 E. 3. c. 18. 42 E. 3. c. 3. 10 R. 2. c. 1. 11 R. 2. c. 1. to 7. 1 R. 3. c. 2. 4 H. 4. c. 13. 21 Jac. c. 3. 24. 7 H. 8. c. 3. The Petition of Right, 3 Caroli, most Statutes against Purveyens, Pardons, Protections, and for regulating the Kings Charters, Grants, Revenues: the Acts made this Parliament against Ship-money, Knighthood, Forest-bounds, Pressing of Souldiers, the Star-Chamber, High-Commission, the Trienniall Parliament, the continuance of this Parliament, whiles they please, with sundry other Acts, which restaine, abridge, repeale, resume divers reall and pretended branches of the Kings royall Prerogative, because they proved grievous, mischievous, dangerous, pernicious to the people and kingdome.⁵⁷

This is sufficient to demonstrate why Prynne was described by a contemporary as “one of the greatest paper worms that ever crept into a library.”⁵⁸ His aim, how-

53 54 55 56 57 58

Lamont, Marginal Prynne, p. 87. Prynne, The Soveraigne Power of Parliaments. Lamont, Marginal Prynne, p. 89. Prynne, The Soveraigne Power of Parliaments. Prynne, The Soveraigne Power of Parliaments, p. 39 – 40. Bayley, p. 255.

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ever, was not literature – he meant to appeal to a similarly legalistically-inclined audience.⁵⁹ This work was wildly popular precisely because of its exhaustive evocation of the weight of precedent for resistance to tyranny; Prynne’s contemporaries identified with this particularly extreme creation of the common-law mind.⁶⁰ During the Civil War Prynne was provided with an opportunity for revenge on his persecutor Archbishop Laud. During Laud’s imprisonment in the Tower of London by Parliament, Prynne was ordered by a Parliamentary committee to search his rooms there, including his study and closet “and even his pockets, for papers to be used against him” – yet another instance in which political opponents asserted their control over private records collections and hunted through them for incriminating evidence.⁶¹ By Laud’s account, Prynne confiscated twenty-one bundles of documents that had been prepared for the Archbishop’s legal defence, suggesting a total disregard for procedural justice, and even his diary and a volume of his own devotions, both written in Laud’s hand.⁶² (He also insisted on peering into the fingers of all Laud’s gloves, upon which Laud attempted to present him with a pair.)⁶³ Prynne was involved in prosecuting Laud at his trial for treason in 1644, but did not succeed in proving the charge that he had engaged in a “Popish Plot” and was forced to admit that he had not found any correspondence from Catholic priests or Jesuits in his search of Laud’s rooms.⁶⁴ As previously noted in the chapter on Selden, Parliament evaded this difficulty by passing a Bill of Attainder – of which Prynne is thought to have been the chief mover – and Laud was beheaded in 1645.⁶⁵ Prynne’s prosecution of Laud was viewed by some contemporaries as dishonest and vicious: he imaginatively selected and presented evidence, editing parts of Laud’s diary to make them seem incriminating; although he was involved in the prosecution, he himself testified in support of the evidence; and he tracked down witnesses to testify against Laud.⁶⁶ Another barrister commented that “The Archbishop is a stranger to me, but Mr. Prynne’s tampering about the witnesses is so palpable and foul that I cannot but pity him and cry shame of it.”⁶⁷

59 60 61 62 63 64 65 66 67

Lamont, Marginal Prynne, p. 88. Lamont, Marginal Prynne, p. 88. Lamont, Marginal Prynne, p. 42; Bayley, p. 252 – 253; Firth, “Prynne, William.” Edwards, Libraries, p. 259. Edwards, Libraries, p. 259 – 260. Lamont, Marginal Prynne, p. 132. Haivry, p. 82; Helms and Cassidy, “Prynne, William.” Firth, “Prynne, William”; Lamont, Marginal Prynne, p. 131. Firth, “Prynne, William.”

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In 1647, the developing rift between Parliament and Army resulted in a number of characteristically intemperate pamphlets by Prynne against the Army.⁶⁸ It appears that, while Selden was defending academic freedom at the ancient universities, Prynne was busy undermining it: according to Firth, on the 1st of May 1647 he was made “one of the commissioners for the visitation of the university of Oxford” and in 1648 he went with the Earl of Pembroke to Oxford “to expel recalcitrant heads of houses.”⁶⁹ From 1647 onwards, Pocock notes, the nascent Republic’s crisis of legitimacy began to brew: “A single chamber, styling itself parliament, soon claimed sovereign power in the name of the ancient constitution; the only force capable of checking its pretensions was the army, which meant that the power of parliament seemed about to be made subject not to law, but to the sword.”⁷⁰ All Cromwell’s desperate attempts at developing a satisfactory written constitution could not anchor the new state successfully.⁷¹ Over the Revolutionary era it gradually became clear that the only solution was the recovery of “the ancient constitution,” and later still the restoration of “the immemorial monarchy” as enshrined in “ancient English custom” was increasingly seen as necessary to secure it.⁷² Thus towards the end of the Revolutionary period “the case for the ancient constitution” became identified with “the case for the crown,” so that, Pocock argues, “The Restoration of 1660 was the greatest triumph which the cult of the ancient constitution ever enjoyed.”⁷³ Prynne would play a key role in this development. It was in 1648 that Prynne became attracted to the constitutional theory that would spur his later, gargantuan archival endeavours. Aggrieved by the denial of Presbyterian MPs’ right to sit in Parliament, Prynne saw that this was attributable (following the abolition of the Lords) to the Commons’ “claim to virtual sovereignty.”⁷⁴ This claim in turn derived from their assertion of their own immemoriality, attacked by Royalist theoretician Sir Robert Filmer in The Freeholder’s Inquest of January 1648, which rejected arguments from putatively immemorial ‘custom’ and instead insisted on historical proofs for the antiquity of Parliament.⁷⁵ Filmer analysed the form of mediaeval Parliamentary Writs to argue for a limited Commons role, on the ground that they were not immemorial and “that there had been a

68 69 70 71 72 73 74 75

Firth, “Prynne, William.” Firth, “Prynne, William”; Bayley, p. 253. Pocock, p. 156. Pocock, p. 156. Pocock, p. 156. Pocock, p. 156. Pocock, p. 156 – 157. Pocock, p. 152 – 153.

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time when the common council had met without them”: he based this contention on the fact that the earliest extant archival source for their summoning dated from 1265 (a writ of summons of “knights of the shire” cited as 49 H. 3.)⁷⁶ Prynne seized upon Filmer’s ideas, realising that restoring the rights of the secluded MPs depended on showing that “the writ under which they had been returned was not within the exclusive control of the lower house acting alone” but that “the summons was issued by the king and […] the Commons were not the whole of parliament.”⁷⁷ In Prynne’s A Plea for the Lords, issued in March of 1648, he cited Filmer’s arguments against the immemorial nature of the Commons and argued for the greater antiquity of the Lords, as well as for their supreme judicial authority.⁷⁸ In urging that the “ancient Parliamentary Rolls and Journals” should be copied and published, he was motivated by both partisanship and scholarly concerns; he wished to save these records from war and fire, and also to weaponise them against attempts to deny the Lords’ claims.⁷⁹ Pocock sums up Prynne’s consistent position, from this point on, as that “the constitution was immemorial, with the qualification that the House of Commons was not.”⁸⁰ The constitution had, in fact, been undermined by the Commons’ historically unfounded claim to sovereign authority.⁸¹ Prynne seems to have entered Parliament officially as MP (for Newport, Cornwall) in November 1648, and instantly began making speeches against the Army and urging reconciliation with the King on the basis of his recent concessions.⁸² He felt that his speech on these subjects on the 4th of December had swayed many of the audience – the Speaker of the House in particular was apparently so overcome with emotion that he rushed into the withdrawing room as soon as it was over.⁸³ In Prynne’s account the speech was so full of “solid reasons, arguments, and precedents out of divinity, law, and history, that no man took up the bucklers against him.”⁸⁴ It is more likely that the listeners were bludgeoned into submission by sheer exhaustion: the speech lasted three hours, one MP complaining afterwards that Prynne “needed not to have been so tedious herein.”⁸⁵

76 77 78 79 80 81 82 83 84 85

Pocock, p. 152 – 153. Pocock, p. 157. Pocock, p. 157; Lamont, Marginal Prynne, p. 179 – 181. Lamont, Marginal Prynne, p. 180. Pocock, p. 161. Lamont, Marginal Prynne, p. 176. Firth, “Prynne, William.” Lamont, Marginal Prynne, p. 183. Bayley, p. 253. Lamont, Marginal Prynne, p. 183.

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Two days later Prynne was imprisoned during Pride’s Purge – apparently attempting to physically resist arrest, and being roughed up by the soldiers – and locked up first in a restaurant referred to as ‘Hell’ and then in two different pubs (the Swan and the King’s Head) in the Strand.⁸⁶ He sent protest letters to Lord Fairfax and simultaneously pamphleteered against the planned trial of Charles for treason.⁸⁷ As soon as Charles I had been beheaded, Prynne issued a Proclamation acclaiming his son Charles as the new King.⁸⁸ Prynne’s protest against his imprisonment was successful, resulting in his release at some point in January 1649.⁸⁹ He then returned to his native village, where he “began a paper war against the new government.”⁹⁰ After expediently transferring his property to a relative, he wrote pamphlets to show “that neither in conscience, law, nor prudence” could he pay the taxes imposed by the purged Commons, which had no legitimacy as a government.⁹¹ Also in 1649, Prynne’s new Filmerian constitutional position was shown in the title of his work The first part of an historical collection of the ancient Parliaments of England, from the yeer of our Lord 673, till the end of King John’s reign, anno 1216.: Wherein is cleerly demonstrated by histories and records beyond contradiction, that the ancient parliaments, and great councels of England, during all this tract of time, and many yeers after, were constituted, and consisted onely of our kings, princes, dukes, earls, nobles, barons, spiritual and temporal lords, and those we now usually stile the House of Peers; and that both the legislative and judicial power of our parliaments resided onliy in them; without any knights, citizens, burgesses of Parliament, or Commons House, not knowne, nor heard of, till of punier times then these. Published, to inform the ignorance, and check the insolent usurpations of those few commoners, who now call themselves not only the Commons House, but Parliament of England; and (as much as in them lies) have most unjustly excluded both our King and lords from being any Members, or branches of our late, or future Parliaments. ⁹² As is obvious from this title, the work straddles the Norman Conquest, thereby giving an impression of unbroken tradition in the context of Prynne’s own evocation of the Ancient Constitution, and is fuelled by an unshakeable belief in the trustworthiness of both secondary sources and most partic-

86 87 88 89 90 91 92

Firth, “Prynne, William”; Helms and Cassidy, “Prynne, William.” Firth, “Prynne, William”; Helms and Cassidy, “Prynne, William”; Bayley, p. 253. Bayley, p. 253. Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William”; Bayley, p. 254. Prynne, The first part of an historical collection of the ancient Parliaments of England.

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ularly records (“histories and records beyond contradiction”). The point of this work was to muster records in support of Filmer’s thesis.⁹³ An examination of this text suggests that Prynne was allowed to arrange archival materials in the Tower of London much earlier than has been thought: during Selden’s tenure as Keeper, and so apparently with his co-operation. In Prynne’s account the heroic, politically-engaged archival arranger and describer reaches an extraordinary apotheosis, with records processing now approximating activism in the service of a grand national cause.⁹⁴ Prynne had realised that “I could not do a more acceptable service to God, the Kingdom, or this new INSANUM PARLIAMENTUM of NOVICES IN PARLIAMENTARY AFFAIRS […] then to spend some vacant Hours in gathering into one or two small Bundles the scattered Histories and Records of our ancientest Parliaments and Great Councels.”⁹⁵ This effort would “instruct their Ignorance, check their Arrogance […] and restore our Parliaments to their ancient constitution, splendor, honour, limits, and preserve them from utter abolition for the future.”⁹⁶ The work proceeds in a disorienting manner, alternating blasts of rhetorical venom at the Commons for having ignored the listed constitutional precedents with down-to-earth explanations of Prynne’s chosen arrangement and description method. Throughout the text Prynne’s new, main constitutional point – the non-antiquity of the Commons, and their lack of judicial authority, which is instead vested in the peers – is repeated ad nauseam. The list of records itself is an odd hybrid of summary catalogue and historical interpretation, showing that in none of the assemblies from Edwin to John were the Commons present, so that the overall impression is of the marshalling of great quantities of evidence rather than a useful guide to the records. There is a long, detailed discussion of why an apparent summons of the Commons in the reign of King John is in fact no such thing, in which Prynne, by means of a close reading of the document’s wording, shows himself capable of more sophisticated historical reasoning

93 Lamont, Marginal Prynne, p. 187. 94 Prynne may have had company from other political researchers while searching through the Tower records for his pamphlets. Peacey shows that in the 1640s “a range of pamphlets” used “evidence from medieval parliament rolls (accessed in the Tower of London) […] to bring out the wisdom of relying upon parliamentary counsel.” (Peacey, p. 325.) One particularly apposite example is an anonymous pamphlet in which the author deployed archival evidence – specifically the “‘rolles of summonses’” – to trace the history of parliament, show the frequency with which it was held, and demonstrate its traditional right to consult on war and foreign policy. (Peacey, p. 325 – 326.) Whether Prynne actually encountered such rival researchers in the Tower repository, and whether this led to altercations, seems to be unrecorded. 95 Prynne, The first part of an historical collection, p. 3. 96 Prynne, The first part of an historical collection, p. 3 – 4.

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than that generally present in his writings.⁹⁷ It does him credit that his extremely partisan disposition did not lead him to ignore this obstacle. When Prynne announces his plan for a second volume to show “that in all King Henry the Third his Reign, at least till 49. Henry 3. if not in some ages after, our English Parliaments were composed only of the King, Lords Spiritual and Temporal, and Peers and Barons of the Realm,” he cites Filmer’s key archival source for this constitutional theory.⁹⁸ On the 30th of June 1650, due to his refusal to pay taxes, Prynne was re-arrested and then imprisoned (with no trial) by the Rump Parliament for nearly three years, and held successively at Dunster, Taunton, and Pendennis Castles.⁹⁹ He was offered conditional release upon providing security of £1000 to “henceforward do nothing against the government,” but he refused to promise anything of the sort, and finally achieved an unconditional release on the 18th of February 1653.¹⁰⁰ He continued to pamphleteer after his release, returning to religious subjects, but these works had little impact; as did his new, 500-page-long 1658 edition of A Plea for the Lords issued to mark Cromwell’s revival of the upper chamber of Parliament (in the form of the euphemistic ‘Other House’).¹⁰¹ In 1655 Prynne published A SEASONABLE, LEGAL, AND HISTORICALL VINDICATION, AND Chronological COLLECTION of the Good, Old, Fundamentall Liberties, Franchises, Rights, Laws of all English Freemen their best Inheritance, Birthright, Security, against all Arbitrary Tyranny. ¹⁰² Although Prynne claims to have an historical purpose in this work, the first part is a long and hysterical anti-Papist screed about the suspected activities of disguised Jesuits in England – notably a Popish plot to abolish Magna Carta and either prohibit the common law, or render it merely co-equal with the civil law (“And the chief reason is, for that the State of the Crown and Kingdome by the Common Laws is so strongly settled, as whilest they continue, the Jesuites see not how they can work their wills”).¹⁰³ Prynne does provide a little Parliamentary history, but only to illuminate the biographies of ‘traitors’ such as Wat Tyler, Jack Cade, and other revolutionaries who wished to change the laws of England, and therefore came to a bad end.¹⁰⁴ (As usual, Prynne

97 Prynne, The first part of an historical collection, p. 27– 31. 98 Prynne, The first part of an historical collection, p. 31. 99 Firth, “Prynne, William.” 100 Firth, “Prynne, William.” 101 Firth, “Prynne, William”; Pocock, p. 157. 102 Prynne, The first and Second Part of A SEASONABLE, LEGAL, AND HISTORICALL VINDICATION. 103 Prynne, The first and Second Part. 104 Prynne, The first and Second Part.

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shows himself extremely credulous of anything written down, believing wholeheartedly in the prosecution’s line – in all these outbursts of popular agitation – that the rebel leaders meant to subvert English law.) He ultimately arrives at Strafford and Laud, stating that he, at any rate, sincerely believes the charges of treason against them, and then concludes with a recital of the various Parliamentary grievances, including the billeting of soldiers and tonnage and poundage.¹⁰⁵ While Prynne does insert some historical references here and there, this is primarily a work of disorganised religious and political polemic. One especially unpleasant side of Prynne’s pamphleteering in the 1650s, contrasting sharply with Selden’s attitude, was virulent Anti-Semitism. The Revolutionary era saw a great upsurge of expression in favour of religious toleration in general and of a fervently religious Philo-Semitism with Millenarian undertones in particular.¹⁰⁶ In the 1650s the Portuguese-Dutch rabbi Menasseh Ben-Israel, encouraged by reports of Cromwell’s friendly attitude towards the Jewish people, negotiated the informal resettlement of Jews in England with the Revolutionary government.¹⁰⁷ Provoked by this (as demonstrated by his sneering comment that BenIsrael was “now inquiring after a convenient Summer-house […] among us”), Prynne argued vigorously against the Jews’ re-admission to England in a pamphlet of 1656, and showed a particular animus towards synagogues.¹⁰⁸ In this pamphlet Prynne reports that he wandered about Westminster on the anniversary of Pride’s Purge, to remind other formerly sequestered MPs of the miserable experience that they had all shared and argue that the 6th of December should be made a day of national fasting and lamentation (those former fellow sufferers whom he met had not remembered the anniversary at all).¹⁰⁹ In Whitehall he bumped into Philip Nye, an advisor to Cromwell on religious matters.¹¹⁰ On being asked by Nye – clearly aware of Prynne’s encyclopaedic knowledge of precedent – whether there was a law preventing the readmission of the Jews, Prynne responded that, having been banished by an Act of Parliament in 1290, they would have to be brought back by an Act of Parliament, and Nye implied that this was rather too public a way of going about it.¹¹¹ Nye could not talk any longer with Prynne, as Cromwell’s committee on the readmission of the Jews was waiting

105 Prynne, The first and Second Part. 106 Abrahams, “Menasseh ben Israel’s Mission to Oliver Cromwell,” p. 7– 11. 107 Abrahams. 108 Lamont, Marginal Prynne, p. 12 – 13, 161 – 162; Prynne, A Short DEMURRER To the JEWES Long discontinued barred Remitter into ENGLAND. 109 Prynne, A Short DEMURRER. 110 Prynne, A Short DEMURRER; Gordon, “Nye, Philip.” 111 Prynne, A Short DEMURRER.

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for him, but Prynne called after him that the Jews had been “great Clippers and Forgers of Mony, and had crucified three or four Children in England at least, which were principal causes of their banishment.”¹¹² Nye retorted “That the crucifying of Children was not fully charged on them by our Historians, and would easily be wiped off. Whereto I answered, He was much mistaken: and so we parted.”¹¹³ As Prynne passed Lincoln’s Inn Fields he encountered several handicapped soldiers who said to each other “We must now all turn Jews, and there will be nothing left for the poor.”¹¹⁴ Afterwards he met with a group of “poor people” similarly bewailing their imminent forcible conversion to Judaism.¹¹⁵ These incidents, Prynne explains, motivated him to plunge into an examination of records on Jewish history, and this leads into a wearying rehearsal of the hoariest mediaeval prejudices and myths, and approving citations of English persecutions of the Jews before their banishment in 1290.¹¹⁶ Suddenly, in the middle of this, Prynne lurches into a pages-long attack on Hugh Peters’ plan for records (including these important sources for Jewish history).¹¹⁷ “And must they […] be all made a burnt-offring unto Vulcan, upon the crackbrain’d Motion of an Ignatian Incendiary?”¹¹⁸ Prynne then threateningly tells Peters to “look to thy neck” for his “Iesuitical Project to burn all our old Records,” which Prynne terms a “transcendent Felony, (yea Treason,) to the whole Kingdom, Nation,” as these records “contain in them all the antient Rights, Titles, Evidences, Charters, Agreements, Leagues, Compacts of the Kings, Kingdom, Nation and people of England, to all their pristine and present Dominions, Jurisdictions, Prerogatives, Preheminences, Priviledges, Hereditaments and enjoyments, both at home and abroad, by Land and by Sea, as they are a Kingdom, Nation, Republike & body Politick in general.”¹¹⁹ Prynne may have veered by free association into Peters’ plan for the records because of the latter’s 1647 pamphlet A Word for the Army and Two Words for the Kingdom, in which he argued that Jews and other foreigners should be allowed to settle and trade in England, and that no attempt should be made to convert them.¹²⁰

112 113 114 115 116 117 118 119 120

Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Prynne, A Short DEMURRER. Abrahams, p. 7.

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Prynne cites, as evidence of the public records’ key importance, “Mr. Selden his Mare Clausum, proving the Dominion and Jurisdiction of the Kings of England over the Narrow Seas by Records, and Sir Robert Cottons Posthuma.”¹²¹ Prynne argues that “it must necessarily be as bad and mad a worke, for a bad and mad Magistrate to burn all the publick Evidences and Records of the whole Kingdom and Nation, (upon the frantick motion of a Bedlam in this particular) as for a Great landed Nobleman to burne all the old Charters, Evidences of his Lands and Honors; or for a rich Usurer to burn all his Bonds and Morgages, which all wise men will repute an act of Frenzy.”¹²² Prynne cites the “confusion, subversion […] destruction of all Rights, Titles, Interests, Inheritances, Priviledges” that would be caused by Peters’ proposal and adds that “patents, grants, evidences […] must be tryed only by their exemplifications or inrollments on record.”¹²³ This pamphlet is also important to English archival history in another way: most of the records on English Jewish history cited by Prynne were subsequently lost, so that Prynne’s exhaustive, detailed survey of these missing records inadvertently filled a later need for primary sources.¹²⁴

The Exact Abridgement In 1657 Prynne looked forward to his great project of chronologically editing the Parliamentary Writs beginning with the Conqueror, but noted that this would take more time and effort than he could yet invest.¹²⁵ In the meantime he wished to provide the public with the benefit of what, he claims, was Sir Robert Cotton’s assemblage and abridgement of Tower records concerning parliaments (and the summonses by writ) from Edward II to Richard III, previously contained only in a private manuscript (“belonging formerly to a person of quality, curiously bound up, gilt, and written in a very fair hand”).¹²⁶ Kippis later cast doubt on the attribution of the work to Cotton: “Tho’, after all, it was not done by Sir Robert Cotton, but by Mr. Bowyer, Keeper of the Tower Records in the latter end of Queen

121 Prynne, A Short DEMURRER. 122 Prynne, A Short DEMURRER. 123 Prynne, A Short DEMURRER. 124 Herman, “Review of The Accommodated Jew: English Antisemitism from Bede to Milton by Kathy Lavezzo”; Firth, “Prynne, William.” 125 Prynne, An exact abridgement of the records in the Tower of London from the reign of King Edward the Second, unto King Richard the Third. 126 Prynne, An exact abridgement.

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Elizabeth’s reign and beginning of King James the first’s.”¹²⁷ Sharpe, on the other hand, is fairly certain that the collection of statutes was indeed Cotton’s work and that Cotton had given Bowyer his notes.¹²⁸ Prynne refers to Cotton as “that most eminent industrious Collector of our best, rarest English Antiquities, Manuscripts, Leger-books, Records of all sorts […] whose famous Name and Memory alone, are sufficient to adde more praise and lustre to this Abridgement, than any Panegyrical Epistle I am able to prefix thereto.”¹²⁹ (The reader may breathe a sigh of relief.) Prynne states that his own contribution to this particular records calendar was confined to rectifying various errors and adding extensive marginal annotations. Nevertheless, he turns this edition into a vehicle for repeated and intemperate attacks on Coke’s view of the Commons’ share in the Ancient English Constitution and their judicial role. Essentially, Prynne uses the marginal annotations to marshal the archival materials in this collection into a retroactive refutation of Coke’s constitutional theory. (He also accuses Coke of plagiarism, of not having honestly cited the Cotton abridgement in his Institutes – “he there assumes the first discovery and honor of it to himself alone” – and of having inaccurately quoted some of its text.) For example, on the judicial role of Parliament, Prynne notes that “Sir Edward Cooke in his 4 Institutes, c. 1. p. 23. hath 5 or 6 gross mistakes together, touching the Iudicature in Parliament, which I have at large demonstrated, refuted in my Plea for the Lords, long since. Particularly, he there asserts, Rot. Parl. 1 H. 4.79. is no Act of Parliament, but an Ordinance: when as you may see by this Abridgement of it, that it is neither an Act nor Ordinance, but only the Kings Answer by the Archbishops mouth to the Commons prayer.”¹³⁰ Later Coke is castigated for relying on (apparently Cotton’s) mistranslation of the Norman French in one of the Parliamentary records, a mistake which Prynne sees as key to the history of relations between Parliament and Crown: the Norman French word ‘Grantz’ had been rendered as ‘Commons,’ so that it looked as though, during the reign of Edward III, the common people were invited to take part in Parliamentary proceedings, when in fact – Prynne points out – they appear in the later, separate formulation ‘Gentz de Comune’ (thus putting them “in contradistinction to the Earls, Lords and Great men, and not present with them at their private debates”).¹³¹ After citing an interminable list of records from the reign of Edward III which show that the Bishops, Lords, and Commons individually (rather than collectively as a Parliament) “consulted and advised the King, touching the War with Scot127 128 129 130 131

Kippis, p. 300 fn. H. Sharpe, Sir Robert Cotton, p. 42, 44. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement; briefly discussed in Sharpe, Sir Robert Cotton, p. 44.

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land,” Prynne concludes, “Wherfore I wonder much at this gross confident mistake in Sir Edward Cook, against so many express Records; and that in his very Treatise touching Parliaments; which is full of other mistakes.”¹³² There are many other such attacks based on painstaking archival work in this highly partisan records edition, and Prynne’s explanations are sometimes so complex that the reader suspects that he may ultimately even have confused himself. Prynne also corrects what he would have perceived to be Cotton’s mistake in interpreting a record to suggest that long before Henry III “THE LORDS AND COMMONS WERE OF ONE HOUSE,” but he does so in a gentler fashion, referring to Cotton here only as the ‘Abridger’ and reserving his ire for Coke, who then perpetuated the error.¹³³ (Sharpe appears to suggest that Prynne attributed Cotton’s errors to the latter’s partisan feeling for the Commons, though the context of Sharpe’s remark is ambiguous and he may instead be referring to Coke’s motivation for his own mistakes.)¹³⁴ Throughout the work Prynne gives his habit of repetitive marginalia free reign. The accusations of non-neutrality that C. P. Cooper levelled at his later edition of the Parliamentary Writs can just as easily be made of his annotated version of the Abridgement. Prynne’s obsession with a handful of constitutional preoccupations (jury trial, habeas corpus, Magna Carta, the limited role of the Commons, and, of course, Popery) can be seen in the marginal notes which ostensibly summarise and index the content of the abridged records, but cumulatively give the impression of the continuity and consistency of the English constitution over time: “Trial by Peers; Mag. Charta; Pope no Judge; Treason for murdering a deposed King; Tried in Parliament by a Jury; Justice not to be delayed; Parliament adjourned for absence of Members; Attendance required; Adjournment by reason of sundry Members absence; Peers tried only by Peers in Parliament; Magna Charta; Laws observed, Great Charter; Imprisonment without due Process; Churches liberties, Mag. Charta, Oath; Magna Charta,” and so on.¹³⁵ This project is, again, not so much an aid to research as what any jurist would recognise as a crushing weight of evidence. Nevertheless, to Prynne’s credit, he does emphasise that it is necessary to “distinguish between the Parliament Rolls abbreviated and the Abridgers Observations on them here and there, which are no part of the Record it self.”¹³⁶

132 133 134 135 136

Prynne, An exact abridgement. Prynne, An exact abridgement. Sharpe, Sir Robert Cotton, p. 44 – 45. Prynne, An exact abridgement. Prynne, An exact abridgement.

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The work is also interesting for the window that it suddenly opens up into the wider intellectual culture, in Prynne’s long defence of abridgements. He provides a list of advantages: they are condensed versions of the most important contents of “many large Records, and Voluminous Tomes,” like a small gold coin containing “the value of many peeces […] of Iron, Brass, Tinn, Silver”; they eliminate “superfluities, impertinences […] circumstances of less moment” with which the original records can be “over-stuffed”; they can be easily transported, conveniently used, and pleasantly, rapidly, and easily read compared with the originals, which are mostly written in “bastard Law-French” anyway; and they are cheap in contrast to the extremely high fees exacted for copies of the original records (“The Transcripts of the Records at large here abridged, will hardly be purchased for 200 l, when as this Abridgement […] will not cost above 20 s. printed”).¹³⁷ They are also a useful memory aid and digestible source of information for curious but un-intellectual aristocrats and country gentlemen who have limited time for reading and wish “to know a little, but not to understand over-much.”¹³⁸ However, the last advantage named is the most interesting. Prynne observes that edited digests of records are used in all fields of enquiry, not merely the historical, but also “in all Arts, Sciences; as Divinity, Philosophy, Physick, Chirurgery, History […] Canon, Civil and Common Law.”¹³⁹ He then lists the most important abridgements and epitomes – one pleasingly entitled The Compleat Iustice – in “my own profession of the Common Law” by divers authors (including Coke) of various sources including “the Year-books at large,” of the entire English common law arranged under headings, and even of the Statutes, and notes that all of these works “are a sufficient Argument of the Utility, Conveniency, and Necessariness of Abridgements.”¹⁴⁰ If such abridgements of the Common Law are clearly so “usefull, gratefull, necessary,” Prynne continues excitedly, “how farr more usefull, excellent, necessary, desirable, delightfull must this Exact Abridgement be, of our rarest Parliament Records and Rolls, never yet published to the world in print, and meer strangers unto most Judges, Justices, Lawyers, Statesmen, Parliament-men, Historians, Scholars themselves, as well as to ordinary Plebeians, and rendring the substance of those excellent Records in English.”¹⁴¹ The reference to “ordinary Plebeians” suggests that Prynne’s fundamental instincts in this project are demotic: he wishes to make the records of Parliament accessible to the reading population at large, 137 138 139 140 141

Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement.

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not merely to its elite, and in a language which all can understand. The publication of this edition “will […] restore that Key of Knowledge, which some self-seeking Monopolists of our Records would have taken away; but likewise unlock the Tower doors, and lay open the long closed Parliament Rolls there kept.”¹⁴² The reproduction of the records in abridged form thereby becomes a metaphorical opening of the archive to everyman. Of course, the project also had the advantage of propagating Prynne’s particular view of an Ancient Constitution free of the antiquity of the Commons, but this additional agenda does not invalidate his obviously sincere intent to make the records available to the general public. That there would have been an audience for such a project is suggested by Prynne’s remark that “these Abridgements of our printed Statutes and Law” are “common in every shop and private Study” – which demonstrates the widespread interest in and familiarity with the law in this period, certainly amongst the mercantile class. While Prynne does not say so, this interest may have been fed by the uproar concerning un-Parliamentary customs charges under the Stuarts, which led to a 1629 mercantile strike that suspended trade in the capital for almost six months.¹⁴³ Trevelyan argues that this was an event of great legal and political significance: a strike by the entire merchant class “solely to vindicate their reading of the laws” showed the existence of, and threat posed by, a massive “political party.”¹⁴⁴ Prynne’s assertion of a ubiquitous mercantile interest in the law is supported by Vine’s recent pioneering work on English merchants and their voracious intellectual appetites, as demonstrated in their making of manuscript miscellanies of valuable and interesting information (currency conversions, measurements and weights, and travel warnings, all obviously relevant for trade, but often also antiquarian observations, analyses of poetry, and book lists).¹⁴⁵ In this eclecticism, English mercantile miscellanies echoed their Italian mediaeval counterpart, the “hodge podge vernacular manuscript” called the zibaldone. ¹⁴⁶ English merchants were particularly interested in humanist, literary subjects, with an appetite for vernacular texts including Shakespeare, and overall they had a prominent part in “the manuscript economy of early modern England,” developing a literate, “civil, mercantile culture” that – again like the Italian example – increasingly rivalled the ancient universities’

142 Prynne, An exact abridgement. 143 Trevelyan, p. 158. 144 Trevelyan, p. 158 – 159. 145 Vine, Miscellaneous Order, p. 125 – 129, 131. Brodie Waddell has investigated the manuscriptmaking – and archives-mindedness – of modest tradesmen in a later era. Waddell, “Writing History from Below.” 146 Vine, p. 134.

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monopoly on humanist knowledge.¹⁴⁷ Soll cites the example of a seventeenth-century English trader called Robert Williams who recommended the use of a portable “business archive inspired by the Italian tradition.”¹⁴⁸ This autodidact interest was not confined to England and Italy: the Fugger merchant family maintained a massive “information and news bureau and archive” with a large collection of humanist manuscripts, and early modern European merchants in general “kept legal archives” in addition to other practical reference works of “ars mercatoria.”¹⁴⁹ Nevertheless, Prynne balances his argument for the general advantages of abridgements with a warning of their specific dangers for the legal and academic professions in matters of public and private concern. Professors as a group, not just of law, should avoid making more “use of Abridgements […] than of the original Law-books, Statutes, Authors,” since this will “divert them to close & shallow Cisterns” in contrast to “the deep and open original springs” and will enable them “to know but a little, and that superficially, at second hand, but not throughly instruct them to understand much.”¹⁵⁰ Such a mistake was made, unsurprisingly, by Coke, “who by trusting to other mens Abridgements and Notes of Records […] was often seduced by them, and hath thereby seduced others, by their mistakes and misrecitals published in his printed Books.”¹⁵¹ (This arrestingly brings to mind Coke’s remarks on missing his vade mecum in the 1628 Parliament.) If attorneys rely on abridgements in legal work for clients, they run considerable professional risks: “let them be sure to resort to the Originals themselves […] to prevent Mistakes, Errors, yea the loss of their Reputations, if their Abridgements should misguide them.”¹⁵² (This may be a practical reason why the new fashion for scholarship gave lawyers like Selden a competitive edge in attracting clients.) Prynne notes that even this excellent ‘Cotton’ abridgement contains some clerical errors – “omissions of material Words, Clauses, yea of the whole Parliament Rolls of Ed. 2. 46 E. 3.”¹⁵³ This is followed by a remark that, from an archivist’s point of view, is extremely suggestive: that the original sources are more “authentick” than the abridgements. They are “commonly more full and satisfactory, (conteining sundry reasons, circumstances, and somtimes matters both of Fact and Law, which the Abridgements omit, curtal, and perchance mistake).”¹⁵⁴

147 148 149 150 151 152 153 154

Vine, p. 129 – 130, 134. Soll, p. 56. Soll, p. 17, 19. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement. Prynne, An exact abridgement.

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Political recovery After the fall of Cromwell’s son Richard, Prynne attempted to regain influence by – along with a number of other members expelled in Pride’s Purge – physically forcing his way into the revived Long Parliament of 1659 on the 9th of May, and remaining obstinately seated.¹⁵⁵ When threatened by the MPs Haselrig and Vane, he informed them that “he had as good right there as either, and had suffered more for the rights of parliament than any of them.”¹⁵⁶ In order to remove him, they adjourned the House and kept him out by force when it reconvened.¹⁵⁷ Prynne again attempted to enter on the 27th of December 1659 and was once more kept out.¹⁵⁸ For nearly a year he continued to pamphleteer on behalf of the sequestered MPs and roused sympathetic public opinion to the point that on the 21st of February 1660, General Monck “ordered the guards of the house to readmit them.”¹⁵⁹ Samuel Pepys relates that Prynne’s triumphal entry at the head of the sequestered MPs, to the cheers of the crowd assembled in Westminster Hall, was spoilt by an unfortunately comic incident in which his overlong old-fashioned sword tripped up tiny Sir William Waller.¹⁶⁰ Prynne now showed himself a passionate restorer of the monarchy: in the debate on the bill for the Long Parliament’s dissolution, which he himself introduced, he “asserted the rights of Charles II with the greatest boldness, and claimed that the writs should be issued in his name.”¹⁶¹ Aubrey notes that Prynne “was (really) very instrumentall in his restauration,” and Charles II personally thanked him for his assistance.¹⁶² Prynne sat in the Convention Parliament as the representative for Bath and inveighed against the Regicide and the former regime, vengefully attempting to “restrict the scope of the Act of Indemnity” for offences committed under it.¹⁶³ Helms and Cassidy add the interesting detail that “As chairman of the committee for examinations, he was chiefly responsible for preserving the records of the trial of Charles I” – no doubt the very records ceremonially enrolled long after the fact as a grisly piece of political theatre, previously discussed.¹⁶⁴ That Prynne might

155 156 157 158 159 160 161 162 163 164

Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William.” Firth, “Prynne, William”; Lamont, Marginal Prynne, p. 207. Firth, “Prynne, William.” Aubrey, p. 509; Firth, “Prynne, William.” Firth, “Prynne, William”; Helms and Cassidy, “Prynne, William.” Helms and Cassidy, “Prynne, William.”

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have exhausted himself with his ceaseless agitation over the decades is suggested by a 1661 episode in the post-Restoration Cavalier Parliament, when he was reprimanded, forced to recant and apologise for his political pamphleteering in the context of ongoing quarrels between Commons and Lords.¹⁶⁵ On this occasion he is reported to have been uncharacteristically tearful.¹⁶⁶ There was also a curious episode in 1664, related by Samuel Pepys, in which the Commons seem to have accused Prynne of records forgery by adding an amendment to a bill which he had himself proposed “(after it had been ordered to be engrossed)” and stated that Prynne ought to “have been sent to the Tower” for this crime, even though it was apparent to Pepys that “he could not mean any hurt in it.”¹⁶⁷ However, the King sent a written intervention on Prynne’s behalf and all was forgotten.¹⁶⁸ By now Prynne’s research and writing had earned him a great reputation, so that during the Restoration his opinion carried “great weight” on “constitutional subjects and points of procedure.”¹⁶⁹ He was even privately asked by Charles II for advice, in 1667, as to “whether a parliament which had been prorogued could be convened before the day fixed” – suggesting that the restored Stuart monarchy had learned a healthy respect for the legal precedents of Parliamentary procedure.¹⁷⁰ This incident may suggest more respect for Prynne than the King otherwise evinced. Bayley relates that when Charles II “was restored to the throne, some one asked him what should be done with Prynne to make him quiet?” and the King cynically responded, “let him amuse himself with writing against the catholics, and in poring over the records in the Tower.”¹⁷¹ He thereupon gave Prynne custody of the Tower records, with the £500 p.a. income.¹⁷² If true, this anecdote suggests that Charles did not devote much thought to the appointment, nor to the possible advantage to himself of Prynne’s planned cataloguing of the Parliamentary Writs in aid of a monarchical vision of the Ancient Constitution. Under the circumstances Prynne’s adoration of the new monarch, as shown by his remark in 1662 “that one and the same miraculous resurrection had restored him [Charles] to the throne and raised up the records of the constitution from oblivion

165 166 167 168 169 170 171 172

Lamont, Marginal Prynne, p. 224 – 227. Lamont, Marginal Prynne, p. 227. Pepys, “Friday 13 May 1664.” Pepys, “Friday 13 May 1664.” Firth, “Prynne, William.” Firth, “Prynne, William.” Bayley, p. 254. Bayley, p. 254.

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(at Prynne’s hands),” seems somewhat pathetic.¹⁷³ (It is also ironic, given the contrast between Prynne’s Puritan beliefs and Charles’s notoriously licentious style of living.) In any case, regardless of Charles’s probable cynicism, Prynne was now about to resume a titanic archival project, which he had apparently already begun: the arrangement and description of the Parliamentary Writs. The first volume was published in 1559, suggesting continued co-operation with Prynne’s schemes, even before the Restoration, on the part of the Tower record-keepers.¹⁷⁴

Cataloguing the Parliamentary Writs Prynne’s description of what he found in the Tower suggests an answer to the previous question as to what, if anything, Cromwell’s attempts to put the repository on a firmer footing had achieved. Despite being very busy in Parliament, as soon as he had received Charles II’s royal patent “for the custody of your ancient Records in your Tower of London […] I designed and endeavoured the rescue of the greatest part of them from that desolation, corruption, and confusion, in which (through the negligence, nescience, or sloathfullnesse of their former keepers) they had for many years by past layen buried together in one confused chaos, under corroding and putrifying cobwebs, dust, and filth, in the darkest corner in Caesar’s Chappel in the White Tower, as mere useless reliques, not worthy to be calendared, or brought down thence into the Office amongst other Records of use.”¹⁷⁵ The conditions were so disgusting, Prynne explains, that even the “souldiers and women” whom he had employed “to remove and cleanse them from their filthynesse” soon got tired of “this noysome work,” and left the records “almost as foul, dusty, and nasty as they found them.”¹⁷⁶ As soon as Parliament adjourned for the summer recess, Prynne and his clerk spent “many whole dayes” over a period of two months “in cleansing and sorting them into distinct confused heaps, in order to their future reducement into method,” since the Tower records clerks were “unwilling to touch them for fear of fouling their fingers, spoyling their cloathes, and endangering their eye-sight and healths, by their cankerous dust and evil sent.”¹⁷⁷ Not so the Puritan martyr Prynne. As Pocock observes, to Prynne the Tower records were the visible embodiment of “The immemorial custom of England,” 173 174 175 176 177

Pocock, p. 159. Prynne, The first part of a brief register, kalendar and survey. Prynne, quoted in C. P. Cooper, p. 35 – 36. This passage is briefly mentioned in Fussner, p. 75 – 76. Prynne, quoted in C. P. Cooper, p. 36. Prynne, quoted in C. P. Cooper, p. 36.

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and “The chaotic heaps of documents among which contemporaries saw him labouring assumed in his mind a peculiar sanctity; they were the repository of all constitutional truth, all political wisdom, and he was defending the constitution not merely intellectually by his pen, but physically by protecting these precious evidences and guarding them against neglect, decay, and the malice of their enemies.”¹⁷⁸ In this respect, the Victorian legal historian F. W. Maitland found Prynne “an heroic figure.”¹⁷⁹ In fact, Prynne boasted of his own toughness and self-sacrifice in the service of the records in a letter to Sir Harbottle Grimston: “whilst you are sucking in the fresh country air, I have been almost choked with the dust of neglected records (interred in their own rubbish for sundry years) in the White Tower; their rust eating out the tops of my gloves with their touch, and their dust rendering me, twice a day, as black as a chimney sweeper.”¹⁸⁰ (It should not be assumed that the Tower environment was unusually bad: Friedrich notes that “early modern archivists,” such as Le Moine in eighteenth-century France, often complained “that the damp, dusty and dark storage rooms ruined clothes, skin and health.”¹⁸¹ Evocations of exhausting, dangerous archival work typified the widespread contemporary discourse of self-sacrifice by Continental archivists, and by implication emphasised the precious nature of the documents for which such sacrifices were made – as well as the underpayment of these heroic efforts.)¹⁸² Far from put off by these dreadful conditions, or by the fact that the Crown was remiss in paying him, Prynne repeatedly petitioned the King, apparently without success, “for additional accommodation in the Tower, in order to facilitate his work in transcribing and arranging the records.”¹⁸³ Perhaps he was hoping to move in. Prynne’s dedication of the Parliamentary Writs edition to Charles contains some significant remarks on records: “In raking up this dung-heap (according to my expectation) I found many rare, ancient, precious pearls and golden Records […] all which will require Briarius his hundred hands, Argus his hundred eyes, and Nestor’s centuries of years, to marshall them in distinct files, and make exact alphabetical tables of the several things, names, and places comprised in them, wherein most treasuries of Records are very defective, which oft causeth your subjects to make long fruitlesse searches, and to depart with a Non est inventus of what they sought for, and might speedily find, had Mr. Vincent and Sir John

178 179 180 181 182 183

Pocock, p. 159. Maitland quoted in Lamont, Marginal Prynne, p. 206. Prynne quoted in Lamont, Marginal Prynne, p. 206. Friedrich, “Being an Archivist in Provincial Enlightened France,” p. 582. Friedrich, Die Geburt des Archivs, p. 137– 138. Firth, “Prynne, William”; Helms and Cassidy, “Prynne, William.”

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Boroughs, been so industrious as to make tables to them, as some of their predecessors, or their clerks allowed competent stipends to encourage them thereunto.”¹⁸⁴ This passage – once the reader has ceased to be dazzled by Prynne’s eccentric display of mythological knowledge – is interesting for its emphatic focus on the public interest in being able to conduct research in the records based on a rational arrangement and description in usable finding aids. He continues to explain that he had found ninety-seven bundles of Parliamentary Writs “dispersed in broken fragments” from the reign of Edward I to that of Henry VI, which he had “with extraordinarie pains […] marshalled into distinct bundles, in an alphabetical and chronological method, for publick use and ready search.”¹⁸⁵ Additionally he had discovered that “one hundred and thirty several parcels of Parliament Procurations and Petitions in these Kings reignes” were “confusedly intermixed with many thousands of other Writs and Records.”¹⁸⁶ He later found more writs, this time from the twenty-fifth year of Edward I, and published them “in his collection of records,” according to Cooper.¹⁸⁷ (It is not clear, however, whether it was Prynne who had washed the returns to Parliament in tincture of gall to make the writing stand out, so that the parchment – by the nineteenth century – had become “deep brown” and fragile, on top of damage from damp.)¹⁸⁸ Prynne’s work in processing these records informed his new role as law lecturer at the Inns of Court, where he had been made a reader in 1661.¹⁸⁹ As previously related in the chapter on Selden, by analysing the forms and answers of mediaeval parliamentary petitions in the bundles that he found in the Tower, Prynne developed the theory that mediaeval acts of Parliament were made via petitions, not bills, so that the 1628 Petition of Right was a complete public Act of Parliament.¹⁹⁰ He then shared this theory with his students, tracing the Petition of Right as a confirmation of ancient liberties back through English history and portraying Magna Carta itself (the petition together with King John’s answer) as the “first […] petition of right.”¹⁹¹ Prynne argued that the subsequent statutory confirmations of Magna Carta all matched the form of a petition of right.¹⁹² In his por-

184 185 186 187 188 189 190 191 192

Prynne, quoted in C. P. Cooper, p. 36 – 37. Prynne, quoted in C. P. Cooper, p. 37. Prynne, quoted in C. P. Cooper, p. 37. Prynne, quoted in C. P. Cooper, p. 37. Prynne, quoted in C. P. Cooper, p. 37. Read Foster, “Petitions and the Petition of Read Foster, “Petitions and the Petition of Read Foster, “Petitions and the Petition of Read Foster, “Petitions and the Petition of

Right,” Right,” Right,” Right,”

p. p. p. p.

24 – 25. 24 – 25. 24; Lamont, Marginal Prynne, p. 221. 24.

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trayal, the Petition of Right itself was therefore no innovation at all, but a recuperation (in form as well as content) of hallowed English precedent. As for the edition of the Parliamentary Writs that Prynne produced as a result of this work, in the nineteenth century C. P. Cooper complained of its bias, that the bulk of it consisted “of those singular historico-political rhapsodies in which Prynne was so fond of indulging.”¹⁹³ Lamont discusses this work and its political purposes, but consistently describes it only as a ‘pamphlet,’ thus missing the fact that Prynne actually produced a series of enormous records calendars.¹⁹⁴ While the work appears ultimately to have consisted of four volumes, only the first two are easily accessible, but an examination of these suffices to give a flavour of the project’s overall tone and purpose. Prynne embraces a conventional moralistic purpose: to impress upon the reader how, through the grace of God, great men served in Parliament in former ages, how far their descendants have fallen, and how much they should strive to live up to their ancestors’ examples (even though they are bound to fail), as well as, in general, memento mori. ¹⁹⁵ However, his unique interests and obsessions rapidly come to the fore. At the start of the first volume as published in 1659, Prynne lists five chief factors of “very publike concernment, highly tending if not to the dishonor, yet certainly to the great disservice, prejudice of our Kingdom.”¹⁹⁶ The first is the loss of the Parliament rolls from the Conqueror to the fifth year of Edward II and the failure to print surviving rolls from the reigns of Edward II and III, very necessary to preserve them from the attentions of “Iesuitical Furies, or illiterate Animals, instigated […] by Hugh Peters.”¹⁹⁷ The second is “the great want of an Exact Collection out of the Clause, Parliament, and Statute Rolls, of all Statutes, Ordinances and Acts of Parliament” from the time before it became customary to print them, while the third is “the Grand deplorable Deficiency of […] an Exact Chronological History of all the Great Councils, Synods, Parliaments of England.”¹⁹⁸ The fourth problem is the lack of digests and editions of the most important records in the Tower more generally, on “the Liberties and Properties of the Subject,” governmental revenue-raising (including “antient Duties, Customs”), currency, trade, manufacturing, and other subjects including “the Negotiations, Leagues, Treaties with forein States.”¹⁹⁹ Not only are no editions of these records avail-

193 194 195 196 197 198 199

C. P. Cooper, p. 27– 28. Lamont, Marginal Prynne, p. 219 – 223. Prynne, quoted in C. P. Cooper, p. 38 – 39. Prynne, The first part of a brief register. Prynne, The first part of a brief register. Prynne, The first part of a brief register. Prynne, The first part of a brief register.

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able, there is not even a basic finding aid: “an Exact Table, Repertory […] whereby they might be readily found out, and made use of upon all emergent occasions.”²⁰⁰ Finally, Prynne’s fifth desideratum is “a Compleat Register or Kalendar of all Parliamentary Writs extant in our Records,” the want of which has fostered so much error by others on the subject of Parliamentary history.²⁰¹ Prynne deplores the lack of official action to rectify these issues by successive English monarchs and governments, but also by the legal profession and the Master of the Rolls himself, contrasting this inertia with the example set by “France, Spain, Germany, Denmark.”²⁰² His grievance about having been excluded by force from Parliament during Pride’s Purge resurfaces, and he cites a number of writs and records to show the illegality of this.²⁰³ He then closes this first volume with an attack on the Commons for having suspended the House of Lords, restating his conviction of the nonantiquity of the Commons, again with many authorities from the primary sources.²⁰⁴ The second part of this massive work, as published in 1660, is even more partisan and repetitive. Here, Prynne cannot let go of his obsession with the nonexistence of the Commons pre-49 H. 3. He notes that both Cotton and Selden, “two of our learnedest most judicious Antiquaries, do rather incline, that the writs for electing Knights, Citizens and Burgesses, began but about the later end of King Henry the 3. and that the first Writ of this kinde now extant, is that in Cl. 49 H. 3.”²⁰⁵ The bulk of this nearly two-hundred-page work is devoted to proving the non-antiquity of the Commons before this point. The project clearly went on as it had begun. The fourth volume (1664) is described by Lamont as a sustained attack on Coke and his uses of history, in which Prynne “was not only using historical disciplines to challenge the dating of authorities; he was drawing attention to this historical context in which the authority was set.”²⁰⁶ Both these techniques “destroyed the magic of Coke’s precedents,” on which the Commons’ claims to sovereignty had been based.²⁰⁷ However, Lamont suggests that Prynne was aware of the logical tension in attacking Coke’s methods while also acclaiming the Petition of Right.²⁰⁸

200 201 202 203 204 205 206 207 208

Prynne, The first part of a brief register. Prynne, The first part of a brief register. Prynne, The first part of a brief register. Prynne, The first part of a brief register, p. 435 – 440. Prynne, The first part of a brief register, p. 440 – 450. Prynne, The second part of a brief register. Lamont, Marginal Prynne, p. 220 – 221. Lamont, Marginal Prynne, p. 220 – 221. Lamont, Marginal Prynne, p. 221 – 222.

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It is easy to understand Cooper’s exasperation with this highly biased accumulation of evidence masquerading as a records calendar. Prynne’s political and constitutional agenda seems to have distracted him from the actual task at hand, with the result that his edition of the Parliamentary Writs “was so miserably deficient in arrangement, that the trouble of consulting it is hardly less than that of examining the original records.”²⁰⁹ The confusing and confused nature of Prynne’s “arrangement (or rather disarrangement)” of the sources, and the great number of his “omissions, imperfections, and inaccuracies,” meant “that no reliance whatever can be placed upon his collections.”²¹⁰ Though Cheney suggests that posterity owes Prynne gratitude for his sortation of the Tower records, Bayley, similar to Cooper, notes that although “few things in that vast repository appear to have escaped his penetrating eye,” he misdirected his efforts towards “adding to his voluminous writings” instead of arranging the records properly, merely collecting together “the writs and returns to parliaments.”²¹¹ Prynne’s own remark about creating “distinct confused heaps,” cited above, seems to support this accusation, as does Palgrave’s later discovery of Prynne’s bundles in a dark passage in the nineteenth century.²¹² Firth’s judgement was slightly more positive, that “In point of style Prynne’s historical works possess no merits” and “The arrangement of his works is equally careless,” but that “the amount of historical material they contain and the number of records printed for the first time in his pages give his historical writings a lasting value.”²¹³ Doubt is created on the point of Prynne’s diligence as Keeper by a 1664 encounter between Samuel Pepys and Prynne’s assistants, the Williams Ryley (senior and junior).²¹⁴ Ryley junior told Pepys “in very bad words concerning Mr. Prin, that the King had given him an office of keeping the Records; but that he never comes thither, nor had been there these six months: so that I perceive they expect to get his imployment from him.”²¹⁵ During the Restoration Prynne seems to have brought his obsession with the limitations on the Commons and the dominance of the Lords to dinner-parties. Pepys describes a dinner with him at Trinity House on the 21st of February 1666, where he “met and sat by Mr. Prin, and had good discourse about the privileges of Parliament, which, he says, are few to the Commons’ House, and those

209 C. P. Cooper, p. 56. 210 C. P. Cooper, p. 28. 211 Cheney, p. 7; Bayley, p. 255. 212 Palgrave, Third Deputy Keeper’s Report, p. 23. 213 Firth, “Prynne, William.” 214 Pepys, “Friday 13 May 1664.” This episode is also mentioned in Thompson Cooper, “Ryley, William.” 215 Pepys, “Friday 13 May 1664.”

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not examinable by them, but only by the House of Lords.”²¹⁶ This was not Pepys’ first encounter with Prynne, and he seems to have enjoyed it more than the occasion in 1662 when Prynne discoursed on his other great obsession, Popery. At this meeting Prynne “fell upon what records he hath of the lust and wicked lives of the nuns heretofore in England, and showed me out of his pocket one wherein thirty nuns for their lust were ejected of their house, being not fit to live there, and by the Pope’s command to be put, however, into other nunnerys. I could not stay to end dinner with them.”²¹⁷ Pepys clearly found it surprising that Prynne would carry this record about with him, and the detail does raise a question as to which other interesting records Prynne might have abstracted from their repository, and where they eventually came to rest. However, his collection of “historical manuscripts,” which he bequeathed to Lincoln’s Inn upon his death in 1669, was made up mostly of his own transcriptions of “the public records.”²¹⁸ Of Cotton, Selden, and Prynne, the latter’s career forms the most extreme example of the political deployment of archival materials in the tumultuous seventeenth century. However, Prynne also had a (rarely glimpsed) softer side. Despite the fiery invective of his publications, during his later phase as Keeper of the Tower records he was courteous and avuncular to younger researchers, whom he sometimes struck as a man out of his own time. When Anthony Wood visited to conduct research in the Tower repository in 1667, “Mr. Prynne received him with old fasion complements, such as were used in the raigne of King James I.”²¹⁹ Prynne informed him that “he should see what he desired,” and was delighted that “such a young man as he was should have inclinations towards venerable antiquity.”²²⁰

216 217 218 219 220

Pepys, “Wednesday 21 February 1665/66.” Pepys, “Monday 26 May 1662,” partially quoted in Lamont, Marginal Prynne, p. 142 – 143. Helms and Cassidy, “Prynne, William.” Wood, quoted in Lamont, Marginal Prynne, p. 19, also Firth, “Prynne, William.” Wood, quoted in Firth, “Prynne, William.”

20 Epilogue to Part Two: The Civil War, the Tower records clerks, and espionage An arresting document from the Restoration provides a surprising insight into the political engagement of Tower records clerks during the Civil War.¹ It is not clear why this document has been bound up in the internal papers of the State Paper Office, and its misfiling may explain why it has apparently never before been analysed in detail.² It is a petition to Charles II by William Ryley junior, a clerk in the Tower, the son of William Ryley senior. The latter had entered the Tower repository as a records clerk in 1620 under the Keeper Sir John Borough. Ryley junior’s father had worked as a clerk in the Tower for forty-six years, during which time he was “servisable to yo(u)r Majestie’s late Royall Father.”³ Ryley junior himself had been “Trayned and brought upp” in the Tower “for the Space of 23 Yeares last past,” and would like to propose himself for the Keepership: “the Peti(tione)r is become capable of being more serviceable to yo(u)r Ma(jes)tie and yo(u)r People, then any other in the Management of the said Office.”⁴ He notes that the only individuals “capable of Manageing the Same Office” are “such as have been brought up in ye knowledge thereof,” and that he is “ye only Person now Remayning so Quallified.”⁵ He therefore petitions Charles for the reversion of the Keepership of the Tower repository “after the decease of Wm. Prinne Esq.,” the current Keeper.⁶ (Clearly he had decided to abandon the scheme hinted at in the Ryleys’ 1664 conversation with Pepys of having Prynne released from his employment, and was now prepared to wait him out.) To back up his request, Ryley junior appends a list of “The Sufferings and Services of William Ryley Senior, and William Ryley Junior for his late Ma(jes)tie; and his Ma(jes)tie that nowe is, during the late unhappy tymes of trouble and confusion.”⁷ This familial curriculum vitae of tribulations endured and services rendered for the Royalist cause begins in 1643, when Ryley senior was “att Oxford […] to attend his late deare Master the King of ever blessed memory, his Ma(jes)tie by his warrant commanded him to repaire to London to attend the Safety of the Records in the

1 2 3 4 5 6 7

SP 45/21 f 158 r. A summary appears in Sainsbury, p. 248 – 249. SP 45/21 f 159 r. SP 45/21 f 159 r. SP 45/21 f 159 r. SP 45/21 f 159 r. SP 45/21 f 157 r.

https://doi.org/10.1515/9783110791464-022

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Tower, a coppy whereof is hereunto annexed.”⁸ Thus, even while organising his war headquarters in Oxford, Charles I was concerned about the security of the Tower records. As proof of this, Ryley junior encloses Charles’s warrant from the 31st of July 1643 – here Charles sends Ryley senior “to attend the Safety of the Records in the Tower, in the absence of Sir John Borough and that hee take the like care to preserve the Records and Bookes of the Office, and Officers of Armes, in the absence of the other King’s Servants, and Pursuivants of Armes.”⁹ (Borough – as previously noted – was an ardent Royalist during the war, not only providing Charles with records to help his cause, but actually joining his forces and coming under fire.) This warrant, albeit confusingly worded, suggests that the Tower archive was totally deserted and vulnerable, under such threat, or supposed threat, in the early stages of the Civil War that Charles had to assign it protection by the heralds. Later on, in 1647, the custody of the Tower “was taken from the citizens of London” and given to General Fairfax, whose first official action as Constable was to reverentially inspect Magna Carta and comment that this was what the Parliamentary side had been fighting for.¹⁰ These facts, like Ryley’s various pro-Royalist interventions using Tower records, raise significant questions about the extent to which the Parliamentarian John Selden was actually present and in control of the repository following his appointment as Keeper in 1643. Also in 1643, Ryley senior “mayntained and iustified the Comission of Array, contrary to the many Ordinances of Parliament, and sent divers Coppyes of Records to Oxford to disprove their said Acts and proceedings. Forr w(hi)ch and for many other Services done to the late King, hee was arrested att the Committee of Examinations at Westm(inst)e(r) and remitted to the Custody of a messenger, and was a prisoner for many Weekes.”¹¹ Thus Ryley senior, although a mere clerk in the Tower, was doing his best to supply the Royalist cause by furnishing the King with precedents to support the Crown’s interpretation of the English constitution. In 1644 Ryley senior was “likewise prosecuted (?) before William Lenthall Speaker of the House of Commons and right dangerous Articles exhibited against hym, w(hi)ch they could not prove, yett were all true.”¹² This narrative supports the rumour reported by Cooper, that in January 1644 Ryley senior “was committed

8 SP 45/21 f 157 r. This warrant is mentioned in Camfield, “1645, William Ryley, record-keeper at the Tower of London, petitions for his arrears of pay.” 9 SP 45/21 f 160 r. 10 Kelsey, p. 15. 11 SP 45/21 f 157 r. 12 SP 45/21 f 157 r.

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to prison […] for ‘intelligence with Oxford.’”¹³ Cooper relates that one of the charges was that he had conspired with the Catholic Sir Basil Brooke on behalf of the King, to create dissension between the City of London and Parliament and thereby prevent the Scottish army from invading England to support the Parliamentary side.¹⁴ Nevertheless, in 1645 Ryley “made a Collection of all the Cornetts and Collours both of horse and foote used in the Parliaments Service, together with the names of their owners and their Mottoes, all w(hi)ch were painted in a faire Booke, w(hi)ch hee sent to the late King to Oxford, w(hi)ch was discovered by one John Surab who came from thence whereupon hee was highly persecuted and if Surab had not then dyed, hee had bin tryed for his life att a Councell of Warr” for having given Charles military intelligence.¹⁵ (Under the desperate circumstances, Ryley’s concern to present his sovereign with this material in an aesthetically pleasing format is tragicomic.) However, in 1646 Ryley senior “was againe prosecuted very vigorously before the Committee of Sequestration att Campden House upon the old Articles, whereupon hee was sequestred and his study at the Heralds Office Sealed up by Order of that Committee. Att the doore of w(hi)ch Committee, these words following were then written, and putt up, and entered in their Bookes. viz.: Ryley told the King, that hee had Records to prove the Parliament Traytors.”¹⁶ (Emphasis added. This is written in a larger hand.) From 1647 Ryley senior “was againe violently prosecuted att Haberdashers hall untill the yeare 1650, and the old charge remained, and other Articles were found against him, as adhering to, and maintaining the Kings right to the Militia, and sending Records to Oxford, mentioning his Sequestration att Campden House a(nn)o 1646 where hee stood still sequestered, w(hi)ch with much labour, post (?), and ffriendshipp hee bore out untill the yeare 1653.”¹⁷ In 1653 “the said charge was renewed against him att the Com(mit)tee of Indemnity, further taxing him that hee had bin in actuall Armes for the late King in Oxford. Hee was in that yeare likewise questioned in the Petite Assembly or Bare-bones Parliam(en)t upon all the former misdeamenours, but the Act of Oblivion then made by the late Usurper Oliver coming (?) forth, hee was dispensed withall. Soe that hee was prosecuted full tenn yeares.”¹⁸ This account seems to substantially conflict with that of Cooper, that Ryley “came to be regarded as a zealous parliamentarian” – although “his political

13 14 15 16 17 18

Thompson Cooper, “Ryley, William.” Thompson Cooper, “Ryley, William.” SP 45/21 f 157 r. SP 45/21 f 157 r. SP 45/21 f 157 r. SP 45/21 f 157 r.

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conduct” was briefly thought to be “vacillating” – and that Ryley’s Royalism revived only when the Restoration was imminent.¹⁹ His son’s account suggests that Ryley senior was far more engaged for the Crown than Cooper thought. It is not impossible that Ryley senior was, in fact, a double agent. With the abolition of the Court of Wards, a major source of income for the Tower records clerks fell away (as noted in Cromwell’s order of 1651, previously discussed), so that it was expedient for Ryley senior to get his son into the Tower repository in order to augment the family income. “Now after his soe great Sufferings, and many more hardshipps too long to be related, having little or noe Support att all (chiefly because the Court of Wards was dissolved,) yett desirous to performe his Trust in preserving those inestimable Jewells the Records in the Tower, hee was pleased to gett the Pet(itione)r [Ryley junior] admitted into that Office in 1646, whereby hee might bee able to serve his Ma(jes)tie and the Publique, wherein hee deepely suffered with hym.”²⁰ This inadvertently comical remark suggests that Ryley junior viewed archival work as a source of ‘deep suffering.’ The comment is similar to William Prynne’s self-portrayal as an archival martyr contending with unhealthy air and endless grime. Ryley junior continues with his father’s remarkable biography. In May 1660 “William Ryley Senior was by speciall Order of the two Assemblyes of Lords and Commons, comanded to proclaime his Ma(jes)tie through Westm(inst)er and London, w(hi)ch duty (I thanke God) hee chearefully performed to the great content and joy of all the People that saw it.”²¹ This commission is explained by the fact that Ryley was a herald as well as a Tower records clerk.²² In 1661 Ryley junior distinguished himself (“through his Industry and care”) by finding “that Originall memorable recognition of the Kings Royall grandfathers tytle to the Empire of great Brittaine, w(hi)ch hee presented to his Majestie.”²³ He also located “the Originall of the Solemne League and Covenant of Scotland together with the Concessions att Breda, both signed by his Royall Ma(jes)tie that now is.”²⁴ Ryley lists further “remarkable Services” which he himself has performed “in the Sorting and separating of the Scotch Registers. viz. amongst the (?) hee found foure great Volumes, containing the Acts, and Ordinances of Severall Parliaments of Scotland” from 1639 – 1650, “w(hi)ch are now remaining in the

19 20 21 22 23 24

Thompson Cooper, “Ryley, William.” SP 45/21 f 157 r. SP 45/21 f 157 v. Thompson Cooper, “Ryley, William.” SP 45/21 f 157 v. SP 45/21 f 157 v.

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paper Office at Whitehall, and kept there for his Ma(jes)tie’s especiall service.”²⁵ This is peculiar, and raises the question of whether Ryley had actually worked in the SPO to complete this project – which, if so, may explain the petition’s presence in the SPO papers – or whether the records were simply transferred there after he had sorted them in the Tower. (If he was allowed to work in the SPO, this would be appropriate considering the espionage services rendered to the Crown by his father during the war.) Furthermore, it is obvious not only that these records did not belong in England, but that they also would normally have the character of public records, and were therefore not the sort of material that was meant to be kept in the SPO. Charles II had particular, personal reasons to be bitter towards the Scottish Parliament, compelled by it to sign the Treaty of Breda (mentioned by Ryley) on the 1st of May 1650 and thereby agree to impose Presbyterianism on the Three Kingdoms as a condition of Scottish military help to regain the English Crown.²⁶ He was also forced to officially “recognise the Scottish Parliament and confirm all Acts passed since 1641.”²⁷ Following the Restoration Charles may therefore have had an interest in suppressing the records of a body that had extracted concessions from him under duress, notably the recognition of its legitimacy. Given that these Scottish parliamentary records span almost the entire Civil War era, it may also be that the somewhat vengefully-disposed King was keeping them as a source of information on Scottish actors during the war, against the background of the Civil War military alliance between the English Parliament and the Scottish Covenanters. This particular records intrigue seems to be another instance of the SPO’s use as a centre for intelligence-gathering. Further service by Ryley senior during the Restoration included, in 1662, presenting “a Manuscript to his Ma(jes)tie: De Superioritate Maris Anglia w(hi)ch he carefully laboured and sought out of the Records in the Tower.”²⁸ It is possible that Ryley senior had noticed the prestige that Selden’s Mare Clausum had brought him. In the same year Ryley junior “did indicate the Militia for the King as his iust right belonging to hym and his Royall Predecessors, w(hi)ch hee proved by the Records in the Tower, and printed in a booke in folio intituled, Placita Parliamentaria, dedicated to the late Lord Chancellor.”²⁹ Ryley junior’s claim to the authorship appears

25 26 27 28 29

SP 45/21 f 157 v. Plant, “The Treaty of Breda.” Plant, “The Treaty of Breda.” SP 45/21 f 157 v. SP 45/21 f 157 v.

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to finally resolve the long-running ambiguity as to which of the Ryleys composed this work.³⁰ While the Placita Parliamentaria is well-known, this political motivation for compiling the work has been little noticed, hearkening back to a major constitutional controversy of the early 1640s. This means that it has something in common with Prynne’s compilation of Parliamentary records. A nineteenth-century work by Robert Waters comments in passing that not only did its appendix vindicate “the inherent right of the Sovereign to command the militia,” the collection also supported the Crown’s imperial pretensions (which, as mentioned, Ryley junior had nourished in 1661 through his discovery of James I’s title to be Emperor of Great Britain) by compiling the “Pleadings in Parliament in the Reigns of Edward I. and Edward II. to prove the homage of the Kings of Scotland due to the Crown of England.”³¹ Ryley junior had also “lately made an abstract out of the Records in the Tower of all such Treatyes of Peace or Truces as have bin acted or done between the Kings of England and other Princes or States, now in the Custody of Mr Williamson.”³² Though ambiguously worded, this appears to suggest that the transcription was now in Williamson’s custody but the original records were still “in the Tower.” Ryley junior had also “likewise […] carefully preserved all the Records and Claymes of all the Fforests, Parkes, Chases and Warrens on this side Front (?) in the tyme of the late warres, and hath made Callendars and Indexes thereunto for his Ma(jes)tie’s advantage, with no small labour and charge.”³³ Finally, Ryley junior “likewise hath attended upon the ho(nora)ble the House of Lords ever since the yeare 1660 with such Records, as they by many warrants comanded hym to bring from the Tower, at his owne proper costs and charges, having as yett received no compensation for the same. Nor for any other service done, whereby hee, and his family, are very impoverished.”³⁴ The result of this recital of self-sacrificing service by the Ryleys is not clear. A 1673 draft of a grant to Joseph Williamson of the salary of £160 a year – worded as a grant of the Keepership itself, which he had already held since 1661 – adds that the Ryleys had petitioned to receive £160 per year, like the salary given to Williamson, “or what y(ou)r Lordshipp shall think fitt.”³⁵ However, this salary, unlike Williamson’s which was to be paid out of the Exchequer, was to be derived either from

30 31 32 33 34 35

Waters, Genealogical Memoirs of the Extinct Family of Chester of Chicheley, Vol. I, p. 176. Waters, p. 176 – 177. SP 45/21 f 157 v. SP 45/21 f 157 v. SP 45/21 f 157 v. SP 45/21 f 167 r.

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the coal-mining revenues of Newcastle upon Tyne, or the customs of the Port of London.³⁶ Though the draft appears to be annotated with the remark that the Ryleys’ salary was granted, it is highly likely that, because the amount due was apparently left to the discretion of the Lord Treasurer, little came of it. The petition is followed by a pathetic, undated (Sainsbury suggests 1675) and unsigned draft letter to an unnamed former Attorney-General, apparently by Ryley junior, claiming to be in the last stages of life and searching desperately for an expropriated finding aid.³⁷ “Being in a Declining condition by reason of the Dropsy that hath attended me for 13 weekes last past, together with the Consumption and severall other Distempers, so that the College of Physicians doe declare that there is but little hopes of any recovery, without the miraculous hand of God Almighty, and being desirous to leave the Record Office in the same condition as my father left it to me,” he asks him “to comand one of yo(u)r Clarkes to give to the bearer hereof (being?) one of the Callendars of the office which I brought to yo(u)r Lord(ship) when yo(u)r Lordshipp was Attorney G(ener)all beginning with the Liberate Ffines & Patent Rolls etc. Yo(u)r Lordshipp may be pleased to remember, it is a booke in folio with Clapses and marked by yo(u)r hono(u)r in severall places, yo(u)r Lordshipp then intending to have something excribed out of those Rolls.”³⁸ Despite all the family’s service to the Crown, Ryley junior’s life closed in a manner that underlines the financial precariousness of official archival work at the time. In a draft letter (possibly from 1675) to an unknown addressee, Ryley refers to his declining condition, which he has tried to prevent by following the doctor’s advice, insofar as he could pay his and the apothecary’s bills.³⁹ He asks for his petition to be given to Sir Joseph Williamson (Keeper of the SPO but also a key advisor to the Crown, which may explain why the Ryley’s documents are filed in the SPO’s internal papers), “so that I may die in his good opinion, and that he would be pleased to look with a favourable eye upon my dejected widow and poor children,” and ask the King for “some compensation for all my services,” either for Ryley or for his family after his death.⁴⁰ Ryley had received so little remuneration from the Tower records office “that I with tears express it, that I shall not leave wherewithall to bury me.”⁴¹ Destitution has overtaken Ryley even though he “was born a

36 SP 45/21 f 167 r. 37 SP 45/21 f 169 r; Sainsbury, Appendix Nr. 7 to the Thirtieth Annual Report of the Deputy Keeper of the Public Records, p. 249. 38 SP 45/21 f 169 r; Sainsbury, p. 249. 39 Sainsbury, p. 249. 40 Sainsbury, p. 249. 41 Sainsbury, p. 249.

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gentleman” and educated by the famous Dr. Richard Busby at Westminster School, “from whence he went to Christ Church, Oxon, where he received the degree of M.A., and was admitted of the Inner Temple.”⁴² After having “lost all preferments to attend to the study of the records” which was his delight, Ryley realises that despite all his “endeavours and constant services to His Majesty,” he “must by sad experience die a beggar.”⁴³ Ryley is also worried about the future of the Tower repository, that when he is dead “no person will be found fit to manage the office” – which, again, calls into question the Tower Keepers’ succession, or at least the extent of their practical involvements.⁴⁴ Ryley asks that his father’s “collections” of archival sources, made over a career of forty-seven years, along with his own made in the last twenty-six years and together with his personal library of “printed books,” should “be sold to the best advantage” in order to support his family.⁴⁵ This case study of the personal ruin that too often attended archival careers in the early modern period suggests why finding aids made by archives-keepers frequently went missing after their deaths. These remarkable sources serve to further illustrate the proactive political role taken by archives-keepers in the constitutional turmoil, in this case on the Royalist side. This involvement in war and espionage is all the more striking because, unlike Selden and Prynne, the primary profession of the Ryleys (as well as of Sir John Borough) was that of archives-keeper. The persecution of Ryley senior also startlingly highlights the paranoia of the Cromwellian regime concerning the communication of useful records to the opposite side, once again suggesting the central importance of access to constitutionally-relevant archival materials during the mid-century – even in conditions of war. It also calls into question the Revolutionary government’s novel emphasis on unfettered public access to records, which clearly did not, in practice, extend to its Royalist enemies. Finally, the family’s financial hardships indicate how little the restored Crown valued their partisan dedication in particular or archival industry in general, and show that Thomas Wilson’s earlier money troubles at the State Paper Office were not an anomaly.

42 43 44 45

Sainsbury, p. 249. Sainsbury, p. 249. Sainsbury, p. 249. Sainsbury, p. 249.

Part Three: Secrecy and Access at the State Paper Office

21 Thomas Wilson’s appointment as Keeper: The political background This section focusses on the State Paper Office, dominated by the figure of Keeper Thomas Wilson, one of the most prominent archives-keepers of the seventeenth century. A close reading of its internal papers, which include many of Wilson’s letters in draft, will illuminate his conditions of work, the SPO’s access regime, and actual use cases, as well as the post-Wilson era. Wilson, by his own account born in 1562 (not 1565, as often asserted) had an unpropitious beginning as “the youngest son of a country gentleman”; due to the English system of primogeniture, he could only hope to inherit what he bitterly described as “that which the catt left on the malt heape.”¹ Unlike Selden, Cotton, and Prynne, he did not study common law at the Inns of Court, but civil law for fifteen years at Cambridge University just at a time when the specialism “was losing most of its market value and when the fate of the average civilian was” – as Wilson put it – “to ‘take great paines for small gaynes.’”² (Wilson’s envious remarks on the rise of the common lawyer have been quoted in Part Two.) He did, however, obtain a Bachelor and a Master of Arts at Cambridge.³ According to Fisher, Wilson failed to secure an academic appointment at Cambridge and in his mid-thirties found himself flailing, filling a number of roles rather indifferently (in Fisher’s assessment, this includes the Keepership of the State Paper Office).⁴ Fisher asserts that the only task at which Wilson appeared to excel was espionage: as a diplomat, he collected intelligence for the Crown on the Continent beginning in the late Elizabethan age.⁵ Wilson was stationed in Italy from 1601 – 02 and was consul in Spain in 1604, with the secret aim of determining “the nature and extent of the Spanish and papal designs against England.”⁶ Wilson became well versed in collecting information, which included making transcriptions of confidential government papers for his own use – whether illicitly or not is unclear. The early Jacobean State Papers include his “Rough note book,”

1 Moseley and Sgroi, “Wilson, Thomas”; Fisher, p. v; Sainsbury, p. 235. Wilson’s birthdate is arrived at by subtracting 16 from 1578, the year in which he claims to have helped his uncle process the State Papers when he himself was sixteen years old – itself calculated based on the date of the document, thought to be 1623. Sainsbury, p. 235. 2 Fisher, p. v. 3 Pollard, “Wilson, Thomas.” 4 Fisher, p. v; Pollard, “Wilson, Thomas.” 5 Fisher, p. vi; Pollard, “Wilson, Thomas.” 6 Pollard, “Wilson, Thomas”; Kate Peters, p. 163. https://doi.org/10.1515/9783110791464-023

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which contained “an imperfect diary of public and private occurrences, copies of letters and state documents, literary and other memoranda, from April 1601 to August 1604”; that this was a working spy’s notebook may explain why it was “Incomplete and much damaged.”⁷ As has been shown, Selden’s and Prynne’s appointments to the Keepership of the Tower records were both political: Selden’s as a reward for services to the Parliamentary interest, Prynne’s for his work in bringing about Charles II’s Restoration. Wilson’s selection as Keeper of the State Paper Office was similarly political, a patronage appointment under the auspice of the Cecil interest, to which Wilson had remained loyal during the Tudor-Stuart transition (despite a brief flirtation with the ill-fated Essex faction).⁸ Robert Cecil, Earl of Salisbury, had ensured the smooth changeover to Stuart rule in 1603, and James had repaid him by retaining him “as his chief counsellor.”⁹ Wilson returned to England from his foreign appointments in 1605 and, in the service of Cecil, became MP for Newtown, Isle of Wight in early 1606.¹⁰ This raises the possibility that Wilson and Cotton were Parliamentary as well as, subsequently, archival rivals, since this was the constituency for which Cotton had entered Parliament five years previously, in 1601. As Cotton seems to have done for Howard, Wilson kept Cecil “regularly informed of Commons business.”¹¹ Proceedings in Parliament were meant to be kept secret, and Wilson’s information-gathering seems to have approximated disingenuous, espionage-like behaviour.¹² As a Commons member, Wilson had the sensitive and politically key responsibility of keeping “the minutes of the proceedings of the committee for the union of England and Scotland, and made a collection of the objections likely to be urged against the union in parliament.”¹³ His notes on the debates on this and other matters appear in the Jacobean State Papers, which overall contain significant intelligence on proceedings in Parliament, some contributed by Wilson.¹⁴

7 Cal. State Papers Dom. (1603 – 10), p. 185. 8 Pollard, “Wilson, Thomas.” 9 Trevelyan, p. 75 – 76. 10 Moseley and Sgroi; Pollard, “Wilson, Thomas.” 11 Moseley and Sgroi. 12 Moseley and Sgroi. 13 Pollard, “Wilson, Thomas.” 14 Cal. State Papers Dom. (1603 – 10), p. 316. The following admittedly somewhat opaque passage from 1614 suggests the extent of spying and paranoia involved in the relationship between Crown and Parliament in this era. “The Secretary proposed the matter of subsidies to the Commons, but it was postponed. The Secretary gone to Court; he has his 1,400 l for secret service. He is jealously watched, but will do, as long as he stands well with the King.” Cal. State Papers Dom. (1611 – 18), p. 231.

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In 1605, Wilson had been delegated to search the Gunpowder Plotters’ “headquarters in Enfield Chase.”¹⁵ Here Wilson’s focus seems to have been on finding incriminating papers. On the 11th of November 1605 he and Israel Amice reported to the Privy Council that they had “searched Dr. Hewick’s house […] in Enfield Chace” where they discovered “Popish books and relics, but no papers nor munition” (emphasis added – the turn of phrase appears to place suspicious papers in the same category of danger as explosives).¹⁶ After searching the trapdoorand passage-ridden house they found and arrested “an obstinate papist” called James Johnson and interrogated “three women” who lived there – forwarding the reports to the Privy Council – on whether, among other matters, Mass had recently been said at the house.¹⁷ Levinus Munck, Wilson’s colleague at the State Paper Office at the beginning of his tenure, took notes at the interrogation of Guy Fawkes in the Tower of London (apparently in his capacity as Cecil’s secretary), and his minutes of the examinations of other Gunpowder Plotters, at which he was also present, were annotated by Sir Edward Coke in his role as Attorney-General.¹⁸ Munck kept careful track of intelligence correspondence received about the Plot in a ‘Calendar,’ filed in the State Papers – some of the letters that he listed

15 Moseley and Sgroi. 16 Cal. State Papers Dom. (1603 – 10), p. 250. In the continuing searches of private homes in the aftermath of the plot, the hunt for ‘papers’ of any sort was a leading obsession. The Justices of Suffolk reported to the Privy Council on the 12th of November that Lord Rokewood’s and his servant’s houses had been searched “but neither he nor any treasonable papers found.” Cal. State Papers Dom. (1603 – 10), p. 253. The next day William Tate, a Crown agent, wrote that although he had thoroughly searched all the rooms of Lord Vaux’s house, “especially his closet,” there were “no papers found.” Cal. State Papers Dom. (1603 – 10), p. 256. Search and seizure of Catholics’ papers continued throughout the Jacobean age. The Mayor of Sandwich having seized both an Irishman called Luke Ford and his papers en route to Ostend in 1619, Lord Zouch directed him to have “the Minister of the town […] persuade […] Ford to take the Oath of Allegiance,” and to free him if he should comply, since his papers contained “nothing mischievous.” Cal. State Papers Dom. (1619 – 23), p. 32, 36. In a 1613 case, however, judge and Master of the Rolls Sir Julius Caesar showed considerable compunction about what he viewed as correct procedure in the case of one Anderton, deceased, a Catholic recusant, whose books had been “sealed up and inventoried” by the “Bishop of Chester”; Anderton’s goods, Caesar wrote to Secretary of State Sir Thomas Lake, could not “legally be sequestered” until the accused had actually been convicted. Cal. State Papers Dom. (1611 – 18), p. 210. These types of seizures continued under Charles I. In 1626 Secretary Conway issued a “Warrant to search for and apprehend Father Muskett, Father Smith, and Father Wordington, Jesuits, seminary priests, or persons dangerous to the state; and also to seize all seditious books, papers, massing stuff, and other reliques found in any place where they may be concealed, and to bring both persons and all such stuff before Lord Conway.” Cal. State Papers Dom. (1625 – 26), p. 215. 17 Cal. State Papers Dom. (1603 – 10), p. 250. 18 Cal. State Papers Dom. (1603 – 10), p. 243, 246 – 247, 266.

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went missing in the subsequent centuries.¹⁹ In various ways, therefore, Wilson and Munck were at the heart of politics and espionage before their instalment in the State Paper Office. As the following discussion will show, Wilson continued his intelligence work in parallel with running the archive. There is considerable confusion in the secondary sources caused by Wilson having the same name as Elizabeth’s Secretary of State Dr Thomas Wilson, who, on the younger Wilson’s own account, was Keeper of the SPO in the late Elizabethan age.²⁰ This has led Schmidt, for example, to conclude that the two Wilsons were the same person, and suggest that the younger Wilson began in the post of Keeper in 1578.²¹ In some sources the elder Wilson is thought to have been the younger Wilson’s father – as stated by Fussner – or uncle.²² Pollard as well as Ailes and Mair state that there is no evidence for the latter contention, but do not mention the source in which a later Keeper of the State Papers, Thomas Raymond, stated that the younger Wilson was the nephew of the older Wilson and took over his place in “about 1605.”²³ While the younger Wilson later mentioned that he had helped Dr. Thomas Wilson to organise the State Papers when he himself was a teenager, Ailes and Mair emphasise that in this account he did not claim any family relationship with the older man.²⁴ However, Wilson did so in The State of England, for which he claimed to have derived his financial information from records “collected by an uncle of mine which not long since was Principal Secretary to the Queen.”²⁵ It therefore seems possible to conclude, barring a lie on Wilson’s part, that the younger Wilson was indeed the nephew of Dr Thomas Wilson. This short treatise from 1600 bears closer examination. It was written in the context of Wilson’s work as a “foreign intelligencer,” so that the purpose may have been to secretly brief Cecil on the intricate situation regarding the succession to the English throne.²⁶ However, supposing that James knew about it (his ignorance of Selden’s work may suggest otherwise), Wilson’s unequivocal and bombastic embrace of the Divine Right of Kings and ultimate support of James’s claim to the throne may have facilitated his appointment as Keeper of the SPO: “lett it be knowne that this Kingdome is an absolute Imperiall Monarchy held nether of Pope, Emperor, nor any but [of ] God alone, and so hath bene ever since the

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Cal. State Papers Dom. (1603 – 10), p. 256. Ailes and Mair. Schmidt, “Thomas Wilson, Tudor Scholar-Statesman,” p. 212. Fussner, p. 76; Ailes and Mair. Pollard, “Wilson, Thomas”; Ailes and Mair; SP 45/20 f. 136 r. Ailes and Mair. “The National Archives SP 12/280,” p. 2. Pollard, “Wilson, Thomas.”

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year of the World 2855, which was 1108 yeares before Christ.”²⁷ (It is tempting to see Wilson’s civilian background in these remarks, so antithetical to commonlaw beliefs.) In this cynical, vigorous, and unrefined work, Wilson reveals himself a shrewd calculator of political circumstances. Written at the end of Elizabeth’s reign, the treatise provides a singular insight into the competition for the throne, and has the colloquialism and pithiness of an intelligence briefing paper. “There are 12 Competitors that gape for the death of that good old Princess the now Queen, the Eldest Prince in yeares and raygne throughout Europe or our knowne World.”²⁸ Wilson lists the English competitors briefly and dismisses them summarily on the ground that they are ‘bastards’ (indeed in some particularly unfortunate cases ‘double bastards’), or because of historical treasons committed by their families.²⁹ He notes that the Queen’s cousin James VI of Scotland is the contender “nerest in bloud” to her.³⁰ His discussions of the labyrinthine family trees of the Continental claimants (whom he treats with noticeably more respect than the English candidates) are clearly informed by his time spent as a spy on the Continent.³¹ Indeed, Popper sees this text as informed by Wilson’s Continental sojourns, during which he obtained “highly desirable relazioni (synoptic overviews of polities arranged according to precise categories – such as royal power, religion, and commerce – to ensure precise recording of all salient information) for several realms,” and suggests that Wilson’s subsequent career under the Cecil interest was the reward for his composition of The State of England, “a relazione of England” drawn from various different quarters.³² Wilson notes “Thus you see this Crowne is not like to fall to the ground for want of heads that claime to weare it, but upon whose head it will fall is by many doubted, but I doe assure myselfe that the King of Scotland will carry it.”³³ He follows this statement with a listing and robust rebuttal of the various legal objections to James’s claim.³⁴ Following this discussion of the succession, Wilson provides a lively précis of England’s diplomatic relations with other states and the varying threats posed by them (“Scotland poore but trusties, Spayn stronge but far of, the Lowe Countryes and Germany assured, Ireland rebellious but unable to hurt, France content yett to

27 28 29 30 31 32 33 34

Wilson in Fisher, p. 1. Wilson in Fisher, p. 2. Wilson in Fisher, p. 2 – 3. Wilson in Fisher, p. 2. Wilson in Fisher, p. 4. Popper, “Archives and the Boundaries of Early Modern Science,” p. 91. Wilson in Fisher, p. 5. Wilson in Fisher, p. 6 – 9.

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lyve in quyett”) which again testifies to his experience as diplomat and spy, and foreshadows his special concern for diplomatic papers as Keeper of the SPO.³⁵ (His particular interest in Ireland is also signalled by the substantial section on the country in this work.)³⁶ Thus, with Wilson’s tenure, it was already clear that the Keepership of the SPO would be a highly political function. Indeed, given its extremely confidential nature, with responsibility for the Crown’s secret papers, this is not surprising. Wilson continued in his role of consigliere after beginning as Keeper, involving himself in numerous legal, financial, and other matters of considerable and sensitive importance to the Crown and its most highly-placed servants. Despite his frequent pleas for additional offices, he appears in fact to have exercised numerous extra functions during his career. His activities outside the SPO must be placed in these various contexts. In 1613 and 1625 he was Commissioner of Annoyances for Middlesex; Justice of the Peace for Hertfordshire from 1615 – 21, and for Middlesex from 1616 – 21, then exercising both offices again from 1625 until his death in 1629, while he was also JP for Westminster from 1618 – 29.³⁷ In 1617 he was Commissioner of Sewers for Hertfordshire and in 1627 for Westminster; he exercised the function of gaol delivery for London’s Newgate Prison from 1619 until his death, and of oyer and terminer (issuing commissions for circuit judges) for Middlesex and London from (respectively) 1619 and 1629 until his death, and for Hertfordshire in 1622.³⁸ Furthermore, he was responsible for game preservation in Middlesex in 1622 and for overseeing new buildings in London and Westminster in 1624; involved in the survey of the Tower liberties in 1626; and, in a direct connection to the event that sparked the key constitutional crisis that led to the Petition of Right, a collector of the Forced Loan for St Martin-in-the-Fields and Westminster from 1626 – 27.³⁹ Above and beyond this, the State Papers suggest that Wilson enjoyed a continued close proximity to the Crown and a wider sphere of action than the SPO, engaging in espionage alongside or indeed as part of his accessioning of diplomatic/ intelligence papers to the SPO. This contrasts with the received, partially self-constructed image of Wilson as an isolated and put-upon figure, drowning in documents in his archive. These involvements also highlight the inchoate nature of Stuart administration in the era before the advent of a professional civil service.

35 36 37 38 39

Wilson in Fisher, p. 14. Wilson in Fisher, p. 15 – 18. Moseley and Sgroi, “Wilson, Thomas.” Moseley and Sgroi, “Wilson, Thomas.” Moseley and Sgroi, “Wilson, Thomas.”

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An examination of Wilson’s activities will serve to illustrate these points, though the attempt to lure Sir Walter Ralegh into self-incrimination in 1618, the zenith of his employment as a fixer for the Crown, is investigated later. Wilson seems to have kept alive his network of spy contacts from his career on the Continent, collecting and analysing letters from abroad and briefing his superiors on them. In 1608 he forwarded correspondence “from Spain and Italy” to Cecil, apparently including an intercepted letter by James’s hated Jesuitical nemesis Robert Parsons with the comment that “The latter looks like Parsons’ hand.”⁴⁰ Wilson assisted his patron Cecil by supervising the building of Hatfield: the State Papers contain many letters on the subject, while the Cecil Papers (the part of the State Papers that remained in the Cecil family’s possession) demonstrate that Wilson played an intimate role in Cecil’s financial and other interests, receiving intelligence on Cecil’s enemies and their intrigues against him. Wilson also attempted to assist in the enforcement of the censorship. On the 14th of May 1610 he wrote to the “Warden of the Company of Stationers” that “The Lord Treasurer commands him to suffer nothing to be printed” about the death of the French King Henry IV – a religiously-motivated assassination by a Catholic – “without sanction from his Lordship.”⁴¹ In this, however, he was defied, the stationers writing back “that they would not stay the impression of the French King’s death, unless my Lord write,” which Cecil promptly did the next day.⁴² (This was just one of several occasions on which Wilson was frustrated by other officials.) In 1616 Wilson supplied the Lord Chancellor with important news from the Royal visit to Oxford, including an apparently eyewitness report of Villiers’ elevation to Viscount in which the King played his part “with great alacrity.”⁴³ In 1617 he communicated the King’s commands “to the Constables of Sandon, Kelshall, and other towns in Hertfordshire” concerning various annoyances to the Royal hunt: the constables were to order “occupants of arable land not to plough their lands in narrow ridges, nor to suffer swine to go abroad unringed and root holes, &c., to the endangering of His Majesty and the Prince in hawking and hunting,” while they were also to remove the high fences between fields “which hinder His Majesty’s ready passage.”⁴⁴ Wilson’s legal expertise was called on in June 1618, when Secretary Naunton asked him to find some way to make “the suit of the Artizan Skinners […] pass 40 41 42 43 44

Cal. State Papers Dom. (1603 – 10), p. 450. Cal. State Papers Dom. (1603 – 10), p. 609; Encylopaedia Britannica, “Henry IV summary.” Cal. State Papers Dom. (1603 – 10), p. 609. Cal. State Papers Dom. (1611 – 18), p. 391 – 392. Cal. State Papers Dom. (1611 – 18), p. 488.

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for the use of Chris. Villiers” (as this would give James an income of £300 a year) but only if it could be achieved “without prejudice.”⁴⁵ In July 1618 Wilson helped Sir Carew Reynell by rewriting his letter to James about the potential benefits of usury, so that it “would give his Majesty an edge to the business, rather than a battle with objections.”⁴⁶ Also in 1618 Wilson appears to have been “one of the Commissioners for Suits,” writing memoranda on meetings, the suits presented, and the decisions reached.⁴⁷ In that year Wilson sent James digested briefings of intelligence letters concerning Japan and Jesuitical activities there, written to Wilson by Mr Cox, the East India Company’s chief factor.⁴⁸ James said indignantly that the description of the great riches and grandeur of the Japanese rulers “were the loudest lyes he had ever heard” and demanded an appointment with the intelligencer himself to confirm them, upon which Wilson informed him that Cox’s return to England was imminent.⁴⁹ In 1622 Wilson sent Cecil digested news about the Palatine emergency (the condition “of Heidelberg, Mannheim, and Frankenthal,” the retirement of the Bohemian King to Sedan, and the Spanish King’s opinion on the crisis), as well as a failed English attempt “to persuade the King of France to leniency towards the Protestants,” the killing of English settlers in Virginia “by the native Indians,” and the murder of the Turkish sultan, alongside domestic news.⁵⁰ In 1619 Wilson made a “Memorandum […] of the allowances made to officers of the King’s works in April 1609, and of certain regulations observed by them,” a case in which he probably relied on the State Papers for his information.⁵¹ In May 1619 he was a party to correspondence about the issues involved in granting “forfeitures of recognizances,” which looks very much like a policy discussion.⁵² On the 12th of February 1621, Wilson provided notes for a speech to be given in Parliament on the controversial question of supply, probably by the King or his representative (though it is unclear whether he was actually asked to do this), which was to ask ominously “whether the back cannot bear the burden, or whether it is unwilling to put forth its strength to bear it.”⁵³ Also in 1621, he provided a “Statement […]

45 46 47 48 49 50 51 52 53

Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal.

State State State State State State State State State

Papers Papers Papers Papers Papers Papers Papers Papers Papers

Dom. (1611 – 18), p. 544. Dom. (1611 – 18), p. 551. Dom. (1611 – 18), p. 557. Dom. (1611 – 18), p. 531 – 532. Dom. (1619 – 23), p. 108; Cal. State Papers Dom. (1611 – 18), p. 531 – 532. Dom. (1619 – 23), p. 424 – 425. Dom. (1619 – 23), p. 42. Dom. (1619 – 23), p. 44. Dom. (1619 – 23), p. 223.

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of the inconveniences arising from the want of an exchange in the trade with Dantzic, in corn.”⁵⁴ Wilson seems to have had little compunction about potentially annoying his sovereign (or indeed others) with his boldness, as suggested by his 1619 offer to correct, by referring to “the best chronologers,” the “defects” in “a chronological table […] by His Majesty” before publication of the volume to which it was to be appended.⁵⁵ He overreached himself on at least one occasion. In 1619 he researched in the Rolls in a matter concerning a property transaction in which, he concluded, the King had been cheated, and also found further information relevant to the ongoing dispute with the Palavicino family about the money owed them by the Crown.⁵⁶ (The State Papers similarly contain his later 1620 “Memoranda […] on the jewels pawned by the States to Queen Elizabeth, her loan to them of 100,000 l, the payment of Palavicino’s debt, &c.”)⁵⁷ Wilson suggested that by now the affair was an attempted deception by the Palavicinos, and that if the parties to both matters “are called in question, it will bring the King more money than is expected from Flanders.”⁵⁸ This letter of the 15th of December 1619 to the Master of the Rolls, Sir Julius Caesar, apparently provoked an infuriated visit by the latter to the SPO on the same day, leading Wilson to write an immediate letter of complaint back that he was “extremely hurt at being called, in presence of servants, an intruder, and officious, for meddling in this business.”⁵⁹ Wilson claimed that the Master of the Rolls had suggested that he conduct the research in the first place, and pointed out that he had done Caesar the courtesy of sharing his findings with him first (instead – it is implied – of approaching the King directly).⁶⁰ Moseley and Sgroi imply that this incident and Wilson’s earlier assignment to entrap Sir Walter Ralegh were somehow connected and that Caesar was reacting to Wilson’s behaviour in the previous context, but these episodes in fact appear to be completely unrelated – it seems that Caesar was straightforwardly infuriated by Wilson’s incursion on his own territory.⁶¹ Earlier the pair had worked constructively together on legal matters for the Crown, Caesar writing to Wilson in 1618 that he would “confer

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Cal. State Papers Dom. (1619 – 23), p. 211. Cal. State Papers Dom. (1619 – 23), p. 100. Cal. State Papers Dom. (1619 – 23), p. 103. Cal. State Papers Dom. (1619 – 23), p. 129. Cal. State Papers Dom. (1619 – 23), p. 103. Cal. State Papers Dom. (1619 – 23), p. 103. Cal. State Papers Dom. (1619 – 23), p. 103. Moseley and Sgroi, “Wilson, Thomas.”

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with him at the Rolls the next day” on a suit submitted to James by a Monsieur Boisloré.⁶² In 1622, as one of the JPs for Middlesex, Wilson was commissioned to act against commercial poaching (with dogs) of the King’s deer by insolent “cooks, victuallers, and others.”⁶³ In 1626 he was one of the commissioners (alongside Sir Robert Cotton) detailed “to ascertain the facts respecting the placing and removal of the mark-stone on Tower Hill,” an assignment in which archival research would certainly have been key, and which was probably connected to his involvement in ascertaining the extent of the Tower liberties.⁶⁴ It was probably in Wilson’s function as a gaol deliverer that Conway ordered him in 1627 “To send Oliver Luke, impressed, and for safe custody committed to the Gatehouse, to the Court at that place.”⁶⁵ Wilson’s activities seem to have raised his profile, so that some perceived him as an influential person: for example, in 1620 John Harding asked Wilson for “his exertions for his enlargement, of which he now has hopes.”⁶⁶ Even towards the end of his life and career, Wilson may been involved in extracurricular intimidation on behalf of the Crown. After “a religious enthusiast” called Lucy Martin (“wife of John Martin, tailor”) handed Charles I “A paper denouncing the sins of the court and country” on Palm Sunday 1626, Wilson – together with the Bishop of Durham – is reported to have been involved in her interrogation.⁶⁷ Also in 1626, Wilson wrote a report on a bizarre episode in which some English Catholics were arrested for attending daily Mass at the French ambassador’s residence, Durham House.⁶⁸ As one of the ambassador’s immediate neighbours Wilson was ideally situated to survey these goings-on, as he seems to have demonstrated with a hand-drawn map.⁶⁹ There are further incidents in the early Caroline period in which Wilson appears to have provided the Privy Council with certificates that various individuals had taken the Oath of Allegiance.⁷⁰ In 1627, Wilson forwarded to Villiers “letters and intelligence received from a gentleman of Munster in Ireland”

62 63 64 65 66 67 68 69 70

Cal. State Papers Dom. (1611 – 18), p. 581. Cal. State Papers Dom. (1619 – 23), p. 352. Cal. State Papers Dom. (1625 – 26), p. 471. Cal. State Papers Dom. (1627– 28), p. 306. Cal. State Papers Dom. (1619 – 23), p. 149. Cal. State Papers Dom (1625 – 26), p. 301, 309. Cal. State Papers Dom (1625 – 26), p. 261. Cal. State Papers Dom (1625 – 26), p. 261. Cal. State Papers Dom (1625 – 26), p. 422, 424.

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which appear to have been sent directly to him at the SPO, suggesting that James’s intelligencers abroad knew about its function as a repository for such material.⁷¹

71 Sainsbury, p. 238 – 239.

22 The establishment of the State Paper Office Beginning with the late Tudor period, the State Papers supersede the records of the law courts as the key source of information on English history, with the rise of the Secretary of State to become the Crown’s main executive officer.¹ This development was a two-stage process: in the late Middle Ages the office of the King’s Secretary became responsible for co-ordinating diplomatic matters, and in the Henrician age domestic business (notably the carrying-out of the Reformation) was added to the role under Thomas Cromwell.² From this point on, the office was “the middleman in diplomatic, political and administrative affairs, and as the person in close touch with the king […] the natural instrument of the royal prerogative.”³ Riordan evokes the office’s importance with the image of “the spider in the center of the web of government.”⁴ The Secretary of State also sat on the Privy Council, and was the Crown’s representative in the Commons.⁵ The State Papers can therefore be seen as the records “of a proto civil service,” so that later historians came to view them as “the all-important source of information for the 16th and 17th centuries.”⁶ The Secretary of State was the bureaucratic channel of communication between monarch and subjects, responsible for drafting royal correspondence and overseeing “the initial stages of formalising grants and pardons,” a function summarised by Sir Walter Mildmay in the Elizabethan era as “the eare and mynd of the prince, yea her penne & mouth.”⁷ Because the Secretary of State’s office was responsible for overseeing diplomacy, it was also early modern England’s espionage and intelligence headquarters.⁸ As a result, in Wilson’s time as Keeper of the SPO, the core of the State Papers “was the government’s diplomatic correspondence and foreign treaties, and, closely related to this, its espionage.”⁹ Wilson’s diplomatic and intelligence-gathering background likely played a role in his selection for this position, and assisted him in carrying it out. His accessioning lists provide an idea of the materials that he added to the State Paper Office, with a particular focus on treasonous plots (as examined later), but it is interesting to note that the

1 Elton quoted in Riordan, “The State Papers and the writing of history,” p. 70; Hall, p. 82 – 83. 2 Riordan, “The State Papers and the writing of history,” p. 69 – 70; Riordan, “The King’s Library of Manuscripts,” p. 182. 3 Greir Higham quoted in Ailes and Mair. 4 Riordan, “The King’s Library of Manuscripts,” p. 182. 5 Ailes and Mair. 6 Riordan, “The State Papers and the writing of history,” p. 70; Hall, p. 83. 7 Mildmay quoted in Ailes and Mair. 8 Ailes and Mair. 9 Riordan, “The State Papers and the writing of history,” p. 70. https://doi.org/10.1515/9783110791464-024

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earlier papers contained in it already included – for example – detailed information on the military response to the Spanish Armada.¹⁰ Other highlights of the pre1600 holdings include correspondence with the Holy Roman Emperor, evidence connected with the attainder for treason against Catherine Howard, “lists of ciphers used by English ambassadors in foreign countries,” and an overview of “names of noblemen, &c., of Scotland, prisoners, and in whose custody they remained.”¹¹ Before Wilson’s tenure the SPO was already a repository for the seized papers of political and religious opponents: in 1604 the State Papers contain a “Statement of the books, papers, lists, &c” discovered on a “schismatic puritan” in Exeter called Melancthon Thomas Jewell, “who had been silenced by the Bishop of Exeter.”¹² However, it remains unclear whether, until the formal establishment of the State Paper Office, these extremely important records had a defined institutional home.¹³ It has been thought that some were kept in the Palace of Whitehall alongside the Records of the Signet and the Privy Council.¹⁴ F. S. Thomas merely notes vaguely that in the Jacobean era “the papers which had been hitherto kept in chests were reduced into the form of a library.”¹⁵ In the mid-sixteenth century, the State Papers were supposed to be kept in chests in the monarch’s private study, apparently (according to Beale) within a designated chamber, though it is unclear whether this was a separate room within the study itself; in any case, the secretaries felt shy about ‘trampling’ in the study for fear of rousing the wrath of the unpredictable Henry VIII, with the result that they “must have been almost compelled to carry off their State Papers to their private dwellings.”¹⁶ Later in the century Beale complained that this special repository for the State Papers had not been maintained after Henry VIII’s death, which meant that on the demise of Secretary of State Sir Francis Walsingham “all his papers and books, both public and private, were seized on and carried away” by his heiress and executrix Ursula St Barbe.¹⁷ In truth, despite these various previous attempts to corral the State Papers, whether in a specific room and/or in a chest or chests, by the time of the SPO’s formal establishment in the early seventeenth century the storage situation

10 11 12 13 14 15 16 17

Tytler, Life of Sir Walter Raleigh, p. 74 – 76. Sainsbury, p. 224. Cal. State Papers Dom. (1603 – 10), p. 181. Hall, p. 33. Hall, p. 33. Thomas, Notes of Materials, p. 41. Wernham, p. 20. On the separate room, see also Edwards, Libraries, p. 179. Mattingly, Renaissance Diplomacy, p. 230; Stewart, p. 241.

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seems to have become diffuse. In his overview of the archive’s development, Wilson notes that the State Papers eventually proliferated to the point “that not a chest nor scarce a great room could contain them.”¹⁸ Due to rapid personnel turnover, embezzlement of papers became a serious issue, so that “it was thought necessary that a certain place should be appointed for them, and a fit man chosen for registering and keeping them in order, and to be tied by oath for the secrecy and safe keeping of them.”¹⁹ However, due to the doubt that surrounds this defensive outlining of the SPO’s venerability – a response to an attack on Wilson’s position by Secretary Conway – Wilson’s portrayal of this formalised background must be taken with some scepticism.²⁰ 1578 has often been cited as the date of the State Paper Office’s formal establishment.²¹ (Vine and Edwards, however, argue that the office had its beginnings under Henry VIII; Edwards finds documentary evidence for its continuance under Mary in the form of a description from 1554 of “a packet remaining in the Office of State Papers.”)²² Both Hall and Riordan argue that an official founding year of 1578 is unverifiable.²³ It derives from one reference made by Wilson to a grant of office under the Great Seal of England by letters patent in his response to Conway, which Wilson himself had then scratched out, and Riordan believes that Wilson’s statement has been misinterpreted: “The date 1578 is based on the misreading of a letter […] in which Sir Thomas Wilson states: ‘It is 45 yeares since I knewe it an office then established’; the date 1578 is derived from subtracting forty-five years from 1623, the supposed date of the letter.”²⁴ Riordan suggests that Wilson is reminiscing about his personal acquaintanceship with the office rather than its official creation.²⁵ Hall argues that the deletion indicates that Wilson – always of a legalistic turn of mind – had not succeeded in finding the grant itself.²⁶ According to Hall, the first definite grant of office by letters patent was in 1603 (the first year of James’s reign) to Sir Thomas Lake, who would later become James’s Secretary of State from 1616 – 19.²⁷ The remuneration of £50 per year is for Lake’s “Keeping, airing and digesting […] Records of matters of State,” and the 18 Sainsbury, p. 235. 19 Sainsbury, p. 235. 20 Sainsbury, p. 235. 21 For example in Popper, “From Abbey to Archive,” p. 250; Broeker, “Jared Sparks, Robert Peel and the State Paper Office,” p. 141; Thrush, “The Government and its Records, 1603 – 1640”; Toomer, p. 53. 22 Vine, p. 194; Edwards, Libraries, p. 181. 23 Riordan, “The King’s Library of Manuscripts,” p. 182; Hall, p. 32 and 34. 24 Riordan, “The King’s Library of Manuscripts,” p. 192 fn. 7. 25 Riordan, “The King’s Library of Manuscripts,” p. 192 fn. 7. 26 Hall, p. 33 – 34. 27 Hall, p. 34; Thrush, “Lake, Sir Thomas I.”

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grant itself is stipulated to be in the dispensation of “the Secretary of State.”²⁸ This is significant not just because of the official royal recognition of the office, but also because it is “at last a clear statement of the position of the office […] as being an employment within the patronage of the Secretary of State.”²⁹ According to Thrush, Lake had been carrying out the work informally – and without remuneration – since 1597.³⁰ An informal beginning for the SPO as far back as the Henrician period, but with intermittent slumbers, is probably the answer to the conundrum. Despite Popper’s insistence that the office was officially chartered by Elizabeth, he admits that it seems to have “languished until 1606,” at which point, according to Popper, Wilson was appointed Keeper by Cecil.³¹ Regardless of which monarch oversaw its origins, the office’s development was consistent with similar contemporary movements “in France, Spain, and Florence” as well as “by the papacy” for “archival reforms” aimed at ensuring “the accessibility of documents” needed for key governmental business.³² These reforms demonstrated the growing significance of archives “as instruments of politics” across Europe in the early modern period.³³ In 1610 Thomas Wilson and Levinus (or Levinius) Munck were officially appointed Keepers by letters patent, though according to Hall there is no surviving trace of this patent “and the cancelled original has been filed instead.”³⁴ Hall speculates that as Wilson’s name here appears second, Munck was in fact the Keeper and Wilson had only a reversionary interest.³⁵ Hall argues that Munck, as Cecil’s private secretary, “had a prior claim to the new office.”³⁶ Given the chaotic nature of the Stuart administration, however, it seems likely that Wilson exercised the office beforehand on an informal basis beginning in 1606, with the actual work probably carried out “by Wilson in virtue of a mutual understanding.”³⁷ The Cecil interest obtained the position for him with an income of £30 a year, and Wilson began work as Lake’s deputy.³⁸ This grant also contained “the proviso that the grantees might be at any time removed” on Cecil’s recommendation, emphasising

28 29 30 31 32 33 34 35 36 37 38

Hall, p. 34; Thrush, “Lake, Sir Thomas I.” Hall, p. 34. Thrush, “Lake, Sir Thomas I.” Popper, “From Abbey to Archive,” p. 250. Popper, “From Abbey to Archive,” p. 256. Popper, “Archives and the Boundaries of Early Modern Science,” p. 88. Ailes and Mair; Hall, p. 35. Hall, p. 35. Hall, p. 35. Hall, p. 35. Moseley and Sgroi.

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that the position, in the administrative structure, was subordinate to the Secretary of State.³⁹ In 1614 Munck and Wilson jointly surrendered the patent, because Munck had resigned.⁴⁰ Thereupon a new, definitely valid grant was re-made to Wilson and to Ambrose Randolph (or Randall), Wilson’s son-in-law, described as “Keepers and Registers of o(ur) Papers and Recordes concerning matter of State and Counsell.”⁴¹ Hall mentions the little-noticed but highly interesting fact that Randolph was the son of the famous Thomas Randolph, Elizabeth’s spy and intriguer at the court of Mary, Queen of Scots.⁴² There was a rival, prior candidate for Randolph’s post called Edward Collingwood; Stewart suggests that Wilson’s machinations had succeeded in excluding Collingwood in favour of his own son-in-law, with whom he had concluded complicated financial and familial arrangements, including the investment of £300 by Randolph to buy out Munck and even the espousal of Wilson’s daughter to Randolph.⁴³ In any case, this 1614 grant installed Wilson as head Keeper and recapitulated the 1610 grant’s aim that the State Papers should be collected “into a sett form of Lybrary” in some convenient location in Whitehall Palace, so as to give the King and his Secretaries easier access to the papers and enable the Secretaries to better serve the king.⁴⁴ However, Randolph seems to have made little practical contribution to the office’s daily work, later admitting to having lived “like a drone.”⁴⁵ Randolph’s lack of industry ultimately appears to have sunk Wilson’s ambitions of preferment, since there was little hope of Randolph bestirring himself to take up the slack. (Randolph’s non-appearance almost defeated his own chances of continuing in the post after Wilson’s death.)⁴⁶ Wilson was simply too good at his job to be promoted out of it, as Secretary Naunton explained to him in 1618: he thought that Wilson would “not be removed easily from the Sparta he has so adorned, unless Mr. Randolph apply diligently to that service.”⁴⁷ Randolph’s unhelpfulness at work may have been exacerbated by significant bad feeling between the two men over family finances, just one aspect of Wilson’s chaotic private affairs. It seems that Wilson began borrowing money from Ran-

39 40 41 42 43 44 45 46 47

Hall, p. 36. SP 45/20 fs. 36 – 38; Ailes and Mair. SP 45/20 f. 37 r; Ailes and Mair; Cal. State Papers Dom. (1611 – 18), p. 248. Hall, p. 35 fn. 5; Henderson, “Randolph, Thomas.” Stewart, p. 246; see also Sainsbury, p. 225. SP 45/20 f. 37 r; Hall, p. 35 – 36. Stewart, p. 250. Stewart, p. 250. Cal. State Papers Dom. (1611 – 18), p. 517.

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dolph early, apparently asking him for £20 in a letter of 1614.⁴⁸ In about 1620 Randolph wrote to Wilson accusing him of “sundry breaches of promise, in respect to the manor of Dalmonds, and other money matters” and refusing “to live with him.”⁴⁹ In 1621, Wilson wrote to Randolph stating that he was having “much difficulty in procuring money to discharge the debt for which Randolph is security,” but promising to “settle his estate of Dalmonds on him and his heirs general” in exchange “for a reasonable consideration,” and additionally promising to “transfer Hoddesdonbury to him” if Wilson’s “promised foreign employment” should materialise.⁵⁰ The next year familial relations between the two men seem to have deteriorated further, with a letter from Wilson about his own debts and private matters that retorted “on him [Randolph] the charge of breaking the marriage covenants between them.”⁵¹ In 1625 the finances of both the kingdom and the Wilson family had reached a new nadir, with a begging letter from Randolph to Wilson in which he reported that he had been unable to obtain “money from his cousin,” to which Wilson replied that “He had laboured as for his life to get money, but had failed,” and that he had been promised by “the Lord Treasurer and Chancellor” that, should any money appear, “the King must be served first” but then Wilson “was one of the first that should have his part.”⁵² He added that “The money for his land in Ireland” had been “deferred.”⁵³ Most startling of all, in November 1626 Wilson seems to have entered into a pact with a man referred to only as “L.” to inveigle Randolph out of his post in the SPO and replace him with “L,” who in turn agreed to pay Wilson £700 “to procure his son-in-law, Ambrose Randolph, to resign all his right and interest in the Office […] and to obtain a new patent with the name of L. instead of Ambrose Randolph.”⁵⁴ The State Papers from Wilson’s lifetime are dotted with further evidences of his ramshackle finances: the 1608 grant to him by the King of a financial interest in the marriage of James’s ward Thomas Baxter; the 1618 indenture of sale of his private home in St Martin-in-the-Fields; various attempts to register patents for himself in 1612; and even his debtor’s bonds.⁵⁵ The most striking incident occurred in 1612 and illustrates the predatory and labyrinthine nature of the English financial system at the time. In a petition to the King for help, Wilson related that he

48 49 50 51 52 53 54 55

Cal. State Papers Dom. (1611 – 18), p. 248. Cal. State Papers Dom. (1619 – 23), p. 205. Cal. State Papers Dom. (1619 – 23), p. 304. Cal. State Papers Dom. (1619 – 23), p. 339. Cal. State Papers Dom (1625 – 26), p. 141. Cal. State Papers Dom (1625 – 26), p. 141. Sainsbury, p. 238. Cal. State Papers Dom. (1611 – 18), p. 118, 581; Cal. State Papers Dom. (1619 – 23), p. 91.

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had asked James to grant him rents and other financial benefits from Wilson’s own property which he had recently bought in Hertfordshire, but that he (Wilson) had not been able to push the petition through to the stage of a grant under seal, due to falling seriously ill “of a quartayne feaver.”⁵⁶ James’s cup-bearer John Hale (or Hall) got wind of the fact that the grant had not been executed, and it is at this point that the tale becomes difficult to unravel.⁵⁷ Wilson’s petition suggests that Hale had heard of Wilson’s debts and claimed one debt via a patent that had been granted to Edward Abbott, but then discovered that this patent would not suffice to carry the debt and so obtained a new patent of Wilson’s debts to other parties.⁵⁸ However, the relevant State Papers calendar suggests that Hale had succeeded in obtaining a grant of the rents and arrears from Wilson’s property while the latter lay ill.⁵⁹ In any case Wilson decided, to keep Hale quiet, to give him £200 on condition “that I might have such discharge of my land as my learned counsell shold devise,” but after accepting part payment Hale seems to have discovered that others were willing to give him a higher price for Wilson’s debts.⁶⁰ The result was a public verbal confrontation, as Wilson related: “I comeing on Twesday last to talke with him quietly about it, in your majestyes howse, and repeating howe the composition was, he presently even in one of your majestyes gallerys most obprobriously and disgrace fully gave me the lye, in the hearing of divers, and thretneth presently to sease my land, he yett never shewing me any right he hath.”⁶¹ Wilson therefore petitioned James for reparation from Hale “of the wrong and disgrace” that he had suffered, and reminded James of his service in the SPO in “reducing those things to order oute of extreame confusion, and never haveing had or made any benefyte therby, but only 30 pounds a yeare which your majesty geveth me.”⁶² Hall/Hale seems to have attacked Wilson again later on: in 1623 the Privy Council wrote to the Exchequer Barons “To free Sir Thos. Wilson from an unjust suit commenced against him by John Hall, the ground of the suit being service done for His Majesty, by command of Council.”⁶³ Later, in 1625 – 26, Wilson was persecuted by one of his creditors, the “Widdowe Cowell in London caled Cowley,” who embarrassed him

56 Cal. State Papers Dom. (1611 – 18), p. 134; Institute of Historical Research, “1612, Thomas Wilson seeks a reward for sorting out the king’s records and papers.” 57 Institute of Historical Research. 58 Institute of Historical Research. 59 Cal. State Papers Dom. (1611 – 18), p. 134. 60 Institute of Historical Research. 61 Institute of Historical Research. 62 Institute of Historical Research. 63 Cal. State Papers Dom. (1619 – 23), p. 589.

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by writing to Secretary Conway to demand satisfaction of his debt of £34 “borrowed of her some yeares [struck through and replaced with ‘a good whyle’] since.”⁶⁴ It is important not to depict the chaos of Wilson’s finances as something exceptional for the times: the Crown’s own fiscal policy throughout this era is notorious for similar spontaneity and disorder. While it may seem odd that Wilson would file his private family correspondence in the official State Papers, this is merely another demonstration of the lack of boundaries between private and public in the early modern administration. The language used by James in the grant of office to Wilson and Randolph from 1614 is worth examining for what it tells us about the status of the records from the King’s own perspective. James’s description of the records (“Papers and Recordes concerning matter of State and Counsell”) suggests their vital importance to governmental operations.⁶⁵ It also indicates that the records were dispersed at the time: in addition to expecting the Keepers to preserve and catalogue the papers already in Whitehall, the King wishes them to incorporate “such papers as heretofore remained in the Custodie of Sr. Thomas Lake Knight [the previous Keeper of the office] and such as were the papers of o(u)r. right trustie and right wellbeloved Cosin and Councellor Robert Earle of Salisbury o(u)r. late Principal Secretary as of such other papers w(hi)ch. hereafter shalbe delivered over into the said Library by aine the Principall Secretaries of us or of or. Heires, and Successors of this o(u)r. Realme of England.”⁶⁶ Thus the Jacobean era, despite the frivolity with which it is associated, did witness the introduction of a certain administrative seriousness in the establishment and operation of the SPO on a firm legal footing. In 1615 Wilson seems to have attempted a merger of the State Paper Office with the Exchequer repositories, to create a sort of national super-archive and enhance his own position. This was prompted by a visit to Arthur Agarde, Exchequer record-keeper, to discuss the accessioning into the SPO of some documents that were in Agarde’s possession.⁶⁷ Wilson was initially disconcerted to find Agarde dead, “the good mans boddy breathless.”⁶⁸ However, he quickly spotted the threat (from Sir Robert Cotton) and opening (for himself and his son-in-law) presented by Agarde’s passing. On the very day when Wilson had found Agarde’s corpse and seen it buried, he “took the opportunity to go through his manuscripts,” and

64 65 66 67 68

SP 45/20 f. 140 r. SP 45/20 f. 36 r. SP 45/20 f. 36 r. Ailes and Mair. Wilson quoted in Ailes and Mair, and Stewart, p. 249.

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wrote to Randolph to encourage him to apply for Agarde’s position.⁶⁹ This would not only strengthen the influence of Wilson, Randolph, and the SPO (“thereby we may make our own office perfect and do the King and State general service by it”), but also pre-empt Cotton from using his influence over the new incumbent.⁷⁰ Wilson appears to suggest that Cotton already had a client in the Exchequer whom he would attempt to insert into Agarde’s job: “Sir Robt. Cotton will claim to have one there at his devotion, but how dangerous this would be to the State, knowing what man he is, as also how prejudicial it will be to their office to let him have command there.”⁷¹ In this letter Wilson bitterly refers to Cotton’s “having such things as he hath coningly scraped together” (perhaps a reference to Cotton’s habit of borrowing SPO documents and never returning them) and “thrusting himselfe into those things [tha]t belonges to me […] to doe in his Ma[jes]ty’s service,” thereby putting Wilson “out of all implo[y]ment.”⁷² (This remark is probably a bitter allusion to Cotton’s great success as an Establishment reference archivist.) Wilson also wrote to Secretary Winwood to warn him that Cotton was planning to claim various materials in Agarde’s possession under the terms of Agarde’s estate, including “a booke intituled the Kynges booke of Recordes in opposic[i]on against the Pope […] seeking to ympeache the kynges prerogative.”⁷³ However, this volume of primary sources encapsulating “exemptions of the Kings of England from the power of the Pope” was not part of the government records proper but had in fact been transcribed by Agarde himself, an arsenal of anti-Papacy precedents that formed a large part of his life’s work and suggests his own political awareness of these issues’ central importance to the Crown.⁷⁴ Wilson had evidently known about and coveted this volume for some time. Ever attuned to James’s constitutional preoccupations, he no doubt thought that accessioning it would give his own archive greater prestige and influence. In his letter to Winwood he alludes to the political danger of not accessioning such sources for the Crown – if they are not “kept in good custody by His Majesty’s officers sworn to the due conservation of them,” then they “may be suppressed when we may have most need of them” – and darkly insinuates that Cotton exercised undue influence over Agarde in the making of the latter’s will.⁷⁵ In fact, however, Stewart notes that these manuscripts were specifically excluded from the bequest to Cotton in Agarde’s will, and that Agarde had

69 70 71 72 73 74 75

Stewart, p. 249. Ailes and Mair; Stewart, p. 249. Sainsbury, p. 226. Ailes and Mair; Stewart, p. 249; Cappon, p. 153. Stewart, p. 247– 248. Sainsbury, p. 212. Sainsbury, p. 226.

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stipulated that they should remain in the Exchequer records office: Wilson was (perhaps deliberately) misrepresenting the will in an attempt to siphon materials into his own repository.⁷⁶ It does not appear that anything came of Wilson’s machinations in this instance.

76 Stewart, p. 248 – 249.

23 Francis Bacon, George Villiers, and records classification When George Villiers caught the eye of James I in 1614 with his famously dainty legs, he probably did not anticipate that his rapid ascent to near-absolute control and influence as the King’s new favourite would elicit records management advice from Sir Francis Bacon.¹ With great power came huge amounts of paper, and Bacon recommended to Villiers something akin to a content-based filing system: Villiers’ secretary should first winnow the extraordinary number of petitions to the Crown, and underline the key parts of the important petitions for Villiers’ perusal.² Villiers should then spend an hour each day examining these petitions, “and sort through and organize them according to their contents” and thereby sort them “‘into several files, according to the subject matter.’”³ Vine paraphrases Bacon’s advice as follows: “What Villiers needed, in other words, was an efficient filing system […] The key to managing his new role, Bacon implies, was classification.”⁴ While it is initially disorienting to encounter the most glamorous and notorious Stuart favourite in a records management context, Villiers may in fact have felt completely at home. Though Villiers had captivated the King “solely by charm, wit and beauty,” and was an unprincipled and inconsistent statesman, his surprising efficiency and talent in everyday administration (as well as an instinct for magnanimity towards his enemies) soon brought him to a pinnacle far above that attained by previous Royal favourites.⁵ By 1619 the great families were all swarming to him for favour.⁶ No doubt Bacon hoped, with this detailed records management advice, to ingratiate himself with the new power behind the throne. According to Vine, Bacon’s filing scheme was consistent with many other contemporaneous projects of bringing order to various document repositories, including Wilson’s own reorganisation of the State Paper Office, the biggest, most monumental project of its kind.⁷ Vine notes that Wilson’s ordering of the SPO’s documents according to “subject, chronology, and geography” is similar to the scheme suggested by Bacon to Villiers, but he situates Wilson’s organisational activities within the context of Secretary of State Robert Cecil’s attempt to usher in a

1 2 3 4 5 6 7

Haivry, p. 26; Vine, p. 191. Vine, p. 191. Bacon quoted in Vine, p. 192. Vine, p. 192. Trevelyan, p. 112. Trevelyan, p. 122. Vine, p. 193.

https://doi.org/10.1515/9783110791464-025

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“wide-spread and deep-seated transformation in record-keeping,” suggesting Cecil’s influence behind Wilson’s classification, sortation, and binding of the archival materials, as well as the provision of “new rooms in the palace at Whitehall for the repository itself.”⁸ However, Villiers may also have been involved. He was the official intermediary between Wilson and the King once the SPO had “been placed under his superintendent care,” as Wilson wrote in a letter from 1618, in which he tried to enlist Villiers’ help with his accessioning problem and added a plaintive request for Villiers to come up and see him some time, “as he once promised.”⁹ When Wilson needed practical assistance, his petitions to the King sometimes led to action from Villiers (the next chapter contains an example in which Villiers solved difficulties with the SPO’s accommodation). It is therefore not beyond the bounds of possibility that Villiers encouraged Wilson’s ongoing classification feats and that, in the process, they were indirectly influenced by Bacon’s similar filing scheme. Fisher’s dismissive attitude to Wilson’s contributions at the SPO is not shared by more recent writers. Ailes and Mair note his extraordinary efforts over many years in reorganising the State Papers.¹⁰ Vine emphasises that he was “the first person to attempt a systematic organization of its collections.”¹¹ Popper focuses on the way that Wilson’s intellectual description matched the physical arrangement in the archive and facilitated ordered accessioning.¹² He cites the church historian Gilbert Burnet’s impression that before Wilson’s tenure the SPO had “few documents and less authority,” and adds that Cecil’s engagement “allowed Wilson to expand the purview of his office and aggressively seek documents.”¹³ Wilson is thought to have created the two main series ‘Domestical’ and ‘Foreign,’ a distinction still in use today.¹⁴ In 1613 he reported that he had previously arranged the papers based on “subjects, heads and years” but that these volumes must now be taken apart and re-arranged into “countries, years and heads,” which he anticipated would take “a year or two laborious paynes” – a somewhat resentful-sounding missive which raises the possibility that this re-arrangement had been imposed on Wilson by outside forces, so that all his previous effort was for naught.¹⁵ In a detailed catalogue made following this re-arrangement, Wilson

8 Vine, p. 194 – 195, 197. 9 Sainsbury, p. 229. 10 Ailes and Mair. 11 Vine, p. 193 – 194. 12 Popper, “From Abbey to Archive,” p. 261 – 262. 13 Popper, “From Abbey to Archive,” p. 263. 14 Ailes and Mair; Thrush, “The Government and its Records, 1603 – 1640.” 15 Sainsbury, p. 225.

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explained that the SPO’s foreign papers were now arranged by country (Gallia, Hibernia, Italia, Germania, and so on).¹⁶ The domestic papers were divided under the headings “Regalia, Legalia, Ecclesiastica, Militaria, Politica, Criminalia, and Mechanica.”¹⁷ Popper states that these were drawn from the traditional categories of the Venetian diplomatic relazioni. ¹⁸ Riordan and Edwards briefly mention the domestic categories of Wilson’s filing system, but more detail is useful for the purposes of this book.¹⁹ The arrangement highlights the constitutional and political preoccupations of the new Stuart era. In an interesting echo of The State of England, the first category – Regalia – contains records concerning “his Ma(jes)tie’s title to the Crowne of England and his prerogative,” while the very first item in the category “Legalia” which follows it is “copies of ancient and modern acts and orders of Parliament extracts on records.”²⁰ These two categories are profoundly significant. Wilson was attempting to make precedents concerning the prerogative easily accessible to James, and the Crown was keeping its own collection of records on Parliament – obviously it was clear that both classes might come in very useful. Further, it is entirely possible that the class of records on the prerogative contained unique sources not available to the Parliamentary researchers in the public records, and that this may have been calculated to put the Crown at an advantage. The category Criminalia is also highly evocative of the turbulent political circumstances, and displays the government’s specific focus. Rather than crime in general, “In the stage of Criminalia are contayned all the busines of Treason’s fellonies, and other offences stare chamber matters, examinations, informations, and Confessions of Preestes and recusants and such like.”²¹ As Riordan notes, this category was mostly preoccupied with treasonous offences.²² (However, there is also an emphasis on the suppression of Catholics, another sign of the times.) Wilson’s description makes clear that the records of Star Chamber, the prerogative law court used to persecute political opponents of the Crown, were contained in the Crown’s private collection of manuscripts and were therefore – unlike legal records more generally, which were part of the ‘public records’ – inaccessible to external enquirers.

16 17 18 19 20 21 22

SP 45/20 f. 90 (or 165) r. SP 45/20 f. 90 (or 165) r; Ailes and Mair. Popper, “Archives and the Boundaries of Early Modern Science,” p. 91. Riordan, “The King’s Library of Manuscripts,” p. 187; Edwards, Libraries, p. 184 – 185. SP 45/20 f. 90 (or 165) r and v. SP 45/20 f. 91 (or 166) r. Riordan, “The King’s Library of Manuscripts,” p. 187.

24 Practical problems at the State Paper Office: Records storage, Jacobean court intrigues, and money matters Wilson’s tenure at the SPO was the first to be dignified with the honour of “a proper office […] fitted up for the first time in some building adjoining the Privy Garden in Whitehall.”¹ Hall describes this accommodation as consisting of “several rooms,” which suggests a sustained interest by the Crown in formalising the SPO’s bureaucratic structures.² He also adds that Wilson added to the suite “by bargaining for a larder belonging to the Earl of Worcester on the lower floor.”³ Closer examination shows that this episode was far more involved than Hall makes it appear. Wilson found himself required to offer various bribes to secure co-operation, from the Lord Privy Seal (Worcester) and Lord Chamberlain (to actually obtain possession of the room), all the way down to the Lord Privy Seal’s undercooks and kitcheners. He left behind a list of the items and the associated expenditure, providing an arresting picture of the everyday corruption required to have an official act carried out: I gave to Mr Sadlier, my Lords Secrry, to gett the graunt of it from his Lord [Privy Seal], a suite of satten and satten lace unto it, wch cost me 12 li. (pounds) […] after I had obteyned it, I presented to my Lord himself divers bookes; one, of the picturs of all the Princes and famous men of the world, cutt in brass, and verry fayrely bound and guilt; and the King’s works, bound in crimsen velvett; and Hackluitt’s works of voyages, in two vollumes […] I gave to my Lo: Chamberlaine, for obteyning his good will to assigne it unto me, divers rare Italian bookes; as, Parallele Militare, fatti di armi famosi, from the begining of the world tyll this tyme, in 2 volumes; Diodati his new Italian Bible, bound in black velvett; and divers other bookes, verry fayrely bound and guilt; wherupon His Lo: sent Mr Maxwell to putt me in possession of the roome.⁴

(The Lord Chamberlain seems to have been holding the room hostage until he had received a sumptuous enough present from Wilson.) The list of expenses does not stop there: “I gave to Mr Leech, for procureing his Lords favour, a payre of gloves, worth 20’ [shillings] and divers books; as, Cor: Tac. [Cornelius Tacitus] with Lipsius his notes, and others […] I gave Mr Martin, my Lo: 1 2 3 4 is

Hall, p. 36 – 37; Toomer also notes that the SPO was located in Whitehall, p. 53 – 54. Hall, p. 37, continuation of fn. 3 from p. 36. Hall, p. 37, continuation of fn. 3 from p. 36. Records Commission, State Papers Published under the Authority, Vol. I, p. xvi, fn. 1. This passage also discussed by Edwards, Libraries, p. 183 – 184.

https://doi.org/10.1515/9783110791464-026

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of Worcesters cooke, for his good will not to oppose, 20’ [shillings] and promised to give him so much yearly.”⁵ Finally, Wilson “gave to the rest of the under cookes and kytchiners, amongst them, 20’ [shillings].”⁶ Apart from the question of securing the room, Wilson had yet further costs, first in apparently removing the Lord Privy Seal’s furniture from the room and then in fitting up the room for his own purposes: “I bestowed, in accom’odating my Lord of Worcesters kytchin wth dressers, and other things, and makeing the dore and partition of pales in the passage, 20’ [shillings] […] I bestowed of the roome, in making upp the walls, doors and locks, and two partitions, fowre pounds.”⁷ Wilson concluded bitterly that quite apart from the books (which exceeded the money sums in value), he had therefore had to pay “outt of my own purse for it, 20 li [pounds].”⁸ This was evidently a completely normal and expected procedure, and it is also clear how finely calibrated the worth of each bribe was, depending on the recipient’s position in the governmental and social hierarchy. Even after all this, Wilson continued to have considerable practical difficulties in connection with the new office. This is suggested by an unsigned warrant of the 7th of June 1615, “To our loving frends the Surveyor and Comptroller of his Ma(jes)tie’s workes & other the officers of the same.”⁹ It gives an order pursuant to Wilson’s entreaty “to have a more convenient payre of staiers built, for coming to the said office of the papers & records, for ye passages through the gardaine & gallery are often shutt up, & duble locked, that hee cannot have access thither many times when there is occasion for his Ma(jes)tie’s service.”¹⁰ It adds that it is also not convenient for Wilson’s servants to keep traipsing through the garden and other areas in an apparently on-call arrangement, and asks for there to be built somewhere in the office “some small roome or two for such of his servants to lodge, and writ in, as hee doth emploie in his Ma(jes)tie’s service.”¹¹ The order asks for an estimate for the building works and is endorsed with a warrant to proceed on the verso, which suggests that it was carried out.¹² Later, Wilson also struggled with removing the records into new accommodation in the Holbein Gate. (This connected the east and west parts of the Palace of

5 Records Commission, Vol. 6 Records Commission, Vol. 7 Records Commission, Vol. 8 Records Commission, Vol. 9 SP 45/20 f. 39 r. 10 SP 45/20 f. 39 r. 11 SP 45/20 f. 39 r. 12 SP 45/20 f. 39 r and v.

I, I, I, I,

p. p. p. p.

xvi, xvi, xvi, xvi,

fn. 1. fn. 1. fn. 1. fn. 1.

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Whitehall.)¹³ A mysterious undated draft letter from Wilson, not addressed, suggests that he may have exploited and negotiated the irritation of two high-ranking noblemen in order to advance the interests of the SPO. On first glance, it is a panicked missive to a senior courtier whom Wilson has inadvertently annoyed: the Duke of Lennox.¹⁴ Wilson begs to provide “a true information in a matter wherin I perceive my self to be wronged.”¹⁵ He notes that it appears that the Duke of Lennox had blamed him (Wilson) for having put ideas into James’s head: “It is conceived as it seemes t(ha)t I shold be the first motive to his Ma(jes)tie for removing the office of the papers into those roomes w(h)ich were next adioyning whereof y(ou)r Grace possesseth part, & I shold doe it for my owne better convenience.”¹⁶ Wilson protests that “it were a strange presumption & indiscretion in […] me to move any thing upon any pretext whatsoever that might any way disaccomodate your Grace, being so neare unto his Ma(jes)tie in blood and otherwaise, & the greatest officer in his court, besides my owne perticuler affection & devotion to y(ou)r Grace, but it furr from me to have any such want of respect or witt.”¹⁷ (At this point an alert reader becomes suspicious at such fulsome protestations of innocence: this wide-eyed style contrasts sharply with the cynical spy of The State of England.) Wilson explains that approximately three weeks “before ever I dreamed of any such thing” he had received a letter from Villiers explaining that James was worried that “his papers & records for busines of state being matters of greatest moment and importance” were not safe in their wooden accommodation, which was “subiect to embezling & other dangers,” and that the King had asked Wilson to survey the stone tower next door to see whether “all the busines of that office” could be moved into one large room there, and if not (i. e. if that room was not big enough) whether the chamber next to the latter could be used as well.¹⁸ Wilson then set off to show the Duke of Lennox this letter from Villiers, “but not finding youe at home I returned this answeare to my lord of Buckingham, that his Ma(jes)tie thenn shewed his Princely prudence & providence in takeing these things soe into his consideration, lyke as other wise Princes w(hi)ch I alledged whoe doe allowe the strongest and securest places they have for matters of this quality.”¹⁹ (The fact that Lennox was not at home seems very convenient for the achievement of this fait accompli.)

13 14 15 16 17 18 19

Thomas, A History of the State Paper Office, p. 8. Hall, p. 37, fn. 1; Sainsbury, p. 230. SP 45/20 f. 46 r. SP 45/20 f. 46 r. SP 45/20 f. 46 r. SP 45/20 f. 46 r. SP 45/20 f. 46 r.

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As for the tower itself, however, Wilson had considered that “both the roomes wold be little enough & too litle, unless I cold devise to place the busines of some perticuler forraine countryes in the little turretts adioyning, w(hi)ch turrets I had not then seene.”²⁰ Wilson assures the nobleman that “This was the substance of the l(ette)re I received and myne answeare therunto.”²¹ Since then Wilson had received orders from James to show Lord Chambert and Secretary Naunton the proposed accommodation, which he had done, “& I wold be verry glad if his Ma(jes)tie continued resolute in the matter & it might be done w(i)thout disaccomodatering y(ou)r Grace, w(hi)ch I thinke may bee if a part of the roome underneathe where the passage is betwist the 2 galleries may be enclosed & allowed to putt in the papers of elder tymes & then the roome above your Grace w(i)th the turretts may hapily be made to containe the rest being built upp to the topp w(i)th shelves & presses, and as matters shall increase & require more roome there may be addition by raising up a roome over the gallery next the Tiltyard.”²² Wilson suggests that this proposal to surround the Duke of Lennox with archival storage would be a compromise agreeable to both parties: “this my lord is the best way (that) I can devise to give his Ma(jes)tie & your Grace satisfaction if his resolution hold to have them removed from where they are. Soe w(i)th my humble service & duly recommended to your Grace I rest ever Your Graces much devoted & desirous to doe your service.”²³ It is a masterful piece of archival intrigue. According to Thrush, Wilson had enlisted Villiers’ help to obtain these rooms on the ground that the records would be less vulnerable to theft (as suggested by his reference to embezzlement) than they were in their previous location.²⁴ However, Hall insinuates that this official reason was disingenuous and that the decision was immediately prompted by the annoyance of the Earl of Carlisle, who had, in the interim, taken over Worcester’s apartments, and that the removal to the Holbein Gate (which Wilson coveted) was achieved by “the interest of Buckingham [Villiers] employed on behalf, probably, of the Earl of Carlisle himself.”²⁵ If the tangled background outlined by Hall is true, this, combined with Wilson’s letter to Lennox, suggests that Wilson was a skilled political operator, able to exploit the connection between Carlisle and Villiers for his own ends – in order to obtain better accommodation for his archive – and then pretend total innocence to Lennox.

20 21 22 23 24 25

SP 45/20 f. 46 r. SP 45/20 f. 46 r. SP 45/20 f. 46 r. SP 45/20 f. 46 r. Thrush, “The Government and its Records, 1603 – 1640.” Hall, p. 37, continuation of fn. 3 from p. 36.

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Hall, who does not notice the controversy that the records removal evidently caused, suggests that the State Papers were finally moved into the Holbein Gate in 1619 (though Thrush and Thomas both specify 1618), which serves to approximately date this letter.²⁶ Thomas adds that “entire possession” was not achieved until 1618, which may be an oblique reference to the Duke of Lennox’s attitude.²⁷ (Hall remarks that the location of the papers prior to 1619 is difficult to pinpoint, due to the confused nature of the sources.)²⁸ According to Thomas, the new accommodation “consisted of two rooms, three closets, and three turrets.”²⁹ However, given Wilson’s later complaints about being confined to one room, it is not certain that the SPO actually obtained all this space during his tenure. Joseph Williamson later explained that in 1618 “the papers […] were removed to where they now are” – a single room – and that James had promised Wilson that if more space were needed he “would add another.”³⁰ When the Holbein Gate was demolished in the eighteenth century, the turrets were found to contain various documents, consistent with the scheme in Wilson’s letter.³¹ (At some point just after George III’s accession in 1760, the Secretary of the Board of Trade had one turret “broken open by a sledge hammer” and discovered some important “books of the Privy Council, before the restoration.”³² This led to the 1764 Records Commission, which found that the State Papers had suffered much from damp and hordes of weevils.)³³ The removal of the State Papers to the new accommodation is thought to have been completed by the time of the fire that tore through the former Banqueting Hall of Whitehall Palace on the 12th of January 1619, near their pre-Holbein Gate repository.³⁴ Hallam states that the removal missed the fire by “only a matter of weeks” and that Wilson, “exultant at this narrow escape,” immediately informed James of this good fortune.³⁵ Wilson rejoiced at James’s “timely providence” in moving the State Papers to the new repository, exclaiming that “Since his Majesty’s prophetical presage of the blow in the powder treason there was never such a pre-

26 Hall, p. 36 – 37; Thomas, A History of the State Paper Office, p. 8; Thrush, “The Government and its Records, 1603 – 1640.” 27 Thomas, A History of the State Paper Office, p. 8. 28 Hall, p. 36. 29 Thomas, A History of the State Paper Office, p. 8. 30 Sainsbury, p. 252. 31 Ailes and Mair. 32 Sainsbury, p. 222. 33 Sainsbury, p. 222 – 223. 34 Hallam, “Nine Centuries,” p. 37; Thomas, A History of the State Paper Office, p. 8. 35 Hallam, “Nine Centuries,” p. 37; Thrush, “The Government and its Records, 1603 – 1640”; Ailes and Mair.

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vention of so great a mischief as this would have been” – ultimately there was “Not so much hurt sustained as the worth of a blank paper.”³⁶ This account is complicated by the later Keeper John Tucker’s report that the “hasty removing” of the records, which was effected by throwing them out of the windows into blankets, meant that “many were lost and some burnt.”³⁷ It is possible that the removal was carried out at some point before the fire, and that the slapdash method of using blankets meant that some records were overlooked and left behind. The later SPO Keeper Thomas Raymond complained that this intervention, which he portrayed as a reaction to the fire, had resulted in damages and losses to the State Papers.³⁸ James apparently did not respond to the fire by having fireproof storage built for Wilson’s records (though he did so for the House of Lords’ archives).³⁹ Wilson does not seem to have been happy for long with the new accommodation, and soon attempted to expand it. In June 1619 his draft letter to the King complains “of the smallness of the room to which by the King’s commands the Office of State Papers is of late contracted,” and points out that the accommodation that he now wants “is already built and of no use at all, and is near adjoining the room he now has,” so that Wilson could use this space “for his lodging” and keep the office in the other chamber.⁴⁰ It is not clear what, if anything, came of this, since later he complained again of “the exceeding toil he has been these two last years forced unto by the confusion that His Majesty’s papers were put into by the sudden removal of them out of the place where he had so well settled them into this straight and inconvenient room where now they are, all his pains have not yet reduced them into so good an order as they were in before.”⁴¹ So not only was the new accommodation uncomfortable, but the move had also undone much of the progress that he had made in arrangement. Wilson’s bill of 1629 showed that he had incurred significant wasted expense in furnishing the previous office (“which rooms are now Lord Carlisle’s lodgings”) with shelving, desks, and “wainscotted cupboards of 240 feet long and 10 feet high,” and then for fitting up the new office after the records removal – costs which had not been reimbursed.⁴²

36 37 38 39 40 41 42

Sainsbury, p. 231. Ailes and Mair. SP 45/20 f. 136 r; Thomas, A History of the State Paper Office, p. 8; Ailes and Mair. Thrush, “The Government and its Records, 1603 – 1640.” Sainsbury, p. 232. Sainsbury, p. 233. Sainsbury, p. 239.

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Money matters A heartfelt plea by Wilson on the subject of salary appears in a draft petition dated September, probably from 1612 and apparently intended for the Lord Treasurer: “I understand that yo(u)r Lord(ship) hath still in yo(u)r disposing, the 40 £ a yeare that is allowed for such as the Lords Thr(easur)ers […] may assigne to those that take paynes in searching, & abstracting, of records for his Ma(jes)tie’s service.”⁴³ Wilson adds that his previous “most deare Lord and M(aste)r” had died, which appears to be a reference to the former Lord Treasurer Cecil.⁴⁴ Wilson wheedles the Lord Treasurer to be pleased for Cecil’s “sake, (not for any desert of my[ne]) to conferr this benefitt upon mee (being an old crazie man, like him that left it).” The identity of the other crazy old man, by which Wilson appears to be referring to one of his predecessors in the post of Keeper and not Cecil, is obscure. In the early seventeenth century the word ‘crazy’ did not yet refer to insanity but to a state of frail physical health, so that Wilson is here attempting to make himself appear especially pathetic.⁴⁵ Hall suggests that if the office of Keeper had been paid before the official establishment of the SPO – and interprets Wilson’s testimony as showing that the payment amounted to £40 p. a. – this payment was in fact for “the extra-official task of reducing the early State Papers to order.”⁴⁶ Wilson here also laments the fact that the Lord Treasurer has not seen fit to give him any extra commissions: “nothing ever soe much greeved my soule as that yo(u)r Lord(ship) hathe not been pleased all this while, to think mee worthy of any of yo(u)r commandem(en)ts I having ever had so great a desire, and made soe many proferrs, to doe yo(u)r service, but I account the cause to bee myne owne unworthynes.”⁴⁷ This ingratiating passage is strikingly reminiscent of the letter to Lennox, discussed above, in which Wilson attempted to defuse the conflict over the records removal to the Holbein Gate. This plea appears to have been initially successful. Wilson was awarded a £40 annuity in 1612 “for transcribing State Papers &c,” as well as the “Clerkship of the Imposts,” but according to his own account he lost the Clerkship – and this sepa-

43 SP 45/20 f. 40 r. 44 SP 45/20 f. 40 r. 45 Health issues were indeed a recurring problem for Wilson, who received a sympathetic letter in 1607 from a Dr. William Branthwaite condoling with him on his “agueish sickness” and providing suggestions on how to bear it with the help of “Dr. Diet, Dr. Quiet, and Dr. Merryman.” Cal. State Papers Dom. (1603 – 10), p. 370. 46 Hall, p. 34. 47 SP 45/20 f. 40 r.

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rate additional SPO income – in 1614 when Suffolk was appointed Lord Treasurer.⁴⁸ Moseley and Sgroi suggest that the appointment of Ambrose Randolph in place of Munck in 1614, in addition to a lump sum payment to Wilson of £300, were intended as compensation for Wilson’s loss of the Clerkship.⁴⁹ James’s grant of 1614 stipulates that Wilson and Randolph are entitled to all appurtenances of the office (“Commodities Profits and Emolumentes”) as well as an actual salary of three shillings and four pence per day equally divided between them to be paid out quarterly by the Treasurer and Chamberlains of the Exchequer, the same amount envisaged in 1610 for the payment of Wilson and Munck.⁵⁰ Per head, this was “just £30 a year.”⁵¹ When converted to today’s money using The National Archives’ currency converter, this amounts to slightly more than £4000 p.a. each. Even if they enjoyed the benefit of grace-and-favour accommodation, it would have been a challenge to live on that allowance, supposing that Wilson and Randolph were unable to make the office pay through feecharging. Indeed, the possibilities for doing so had not been properly thought through when the Crown established the office. As Fussner notes, it was obviously impossible to force Privy Councillors to pay high use fees.⁵² Given the highly restricted use of the State Papers by persons outside the government, in contrast to the Tower repository, it can immediately be seen that this archive was on a very insecure financial footing. The ongoing financial embarrassment that Wilson claimed to suffer in the post means that his various research and accessioning proposals must be interpreted with a pinch of cynicism: he was continually in search of ways to force the Crown to pay him something extra, in parallel with his attempts to transcend the State Paper Office entirely and obtain a more lucrative and prestigious post. (However, this does not mean that his suggestions did not accurately reflect early seventeenth-century governmental preoccupations.) That the traditional discretionary £40 income had been designated for specifically archival duties explains why, in an even more pitiful draft letter beseeching the King for help in 1615, Wilson emphasises this aspect: he has “taken great paines for manie yeares in reducing yo(u)r Ma(jes)tie’s said papers and records (insert: out of extream confusion) into a good and due forme, as your Ma(jes)tie and most of the Lords of yo(u)r Councell have seene.”⁵³ Wilson is “still bound to con-

48 49 50 51 52 53

Cal. State Papers Dom. (1611 – 18), p. 610; Pollard, “Wilson, Thomas”; Moseley and Sgroi. Moseley and Sgroi, “Wilson, Thomas.” SP 45/20 fs. 36 v, 37 v. Thrush, “The Government and its Records, 1603 – 1640.” Fussner, p. 78. SP 45/20 f. 45 r.

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tinuall attendance att Whitehalle, where the office of the said papers and records is nowe established for his further proceeding in the said service for such things as are from time to time to bee brought in and to bee readie there upon all occasions of yo(u)r Ma(jes)tie’s service, to produce such things as the same shall require either to the Lords and others of Yo(u)r Ma(jes)tie’s privy cousell or such as yo(u)r Ma(jes)tie shall appoint.”⁵⁴ Despite these salient facts he “nether hathe nor never had any allowance for the same but only 30 £ a year wages without any other benefit therby.”⁵⁵ Therefore Wilson hopes that “yo(u)r Ma(jes)tie wilbe pleased out of yo(u)r princelie bountie to yo(u)r painefull & dilligent servants, to grant him some smale diett (insert: of 2 dishes of meat a meale) for himself and his servants or ells such reasonable allowance for the same, as to (your Ma(jes)tie and) the lords of yo(u)r most honnorable houshold shall seeme fitt.”⁵⁶ The next letter of complaint to James about Wilson’s pay interestingly illuminates the business and conditions at the SPO. Wilson had previously written to the “Lord Marquis of Buckingham and Mr. Secretarie Naunton” about the need to augment the income associated with the SPO.⁵⁷ As it was, Wilson only received the official stipend of £30 a year “w(i)thout Diet or other benefitt” (i. e. no food allowance).⁵⁸ The renewed reference to food shows that no response had been made to Wilson’s earlier request for meat. (Fussner appears to have overlooked this letter altogether, misstating Wilson’s income as £30 per annum with an additional £60 food allowance.)⁵⁹ Wilson goes on to explain that out of this tiny income, he has to budget for “continually keeping 2 clerkes to transcribe, abstract and collect, such things as are continually required for y(ou)r Ma(jes)tie’s service, besides all my owne paynes, and one other servant to bynd upp the Papers into books.”⁶⁰ He continues that he is reluctant to ask the King “for anie thing out of y(ou)r owne meanes, & therfore I propounded to have some fee of all such as y(ou)r Ma(jes)tie shall hereafter bestow honor uppon, for keeping a due & faire Record therof.”⁶¹ In the conclusion Wilson reminds James that he “was graciously pleased at your being att Abthorp this progress to give me answere by my Lord Marquis of Buckingham that you were verry willing to doe anie good for me or the place I serve in, but that you wold do noe such buisines this progress, but that att

54 55 56 57 58 59 60 61

SP 45/20 f. 45 r. SP 45/20 f. 45 r. SP 45/20 f. 45 r. This letter is also mentioned by Ailes and Mair. SP 45/20 f. 43 r. SP 45/20 f. 43 r. Fussner, p. 78. SP 45/20 f. 43 r. SP 45/20 f. 43 r.

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yo(u)r returne I shold have eyther that I desire or as good a thing.”⁶² Wilson’s patience is running out: “I humblie beseeche yo(u)r Ma(jes)tie that I may now understand yo(u)r gratious furder pleasure in this my humble suite for ye advancem(en)t of this pore place, out of w(hi)ch yo(u)r Ma(jes)tie will daily see greater effects of good service then hetherto there hath beene.”⁶³ On occasion Wilson combined his petitioning with primary source research in order to remind the Crown of his added value, such as when (probably in 1618) he wrote to Villiers with “a collection of papers, copies of which have been sent to the Ambassador in Flanders, proving that the Archduke’s towns owe the King 100,000 l” and hoping that Villiers would “remember his suit.”⁶⁴ (This very involved undertaking, for which Wilson later submitted a bill, included a historical overview “collected out of the papers” of how the debt had grown, the individual liabilities of the Archduke’s various “states and towns,” and ripostes to “objections made by the commissioners of the States.”)⁶⁵ Given the frequency and plaintiveness of Wilson’s letters, it is possible that James knighted him on the 20th of July 1618 in an attempt to pacify him.⁶⁶ It appears that at some point after this Wilson was successful in re-obtaining the discretionary income for arrangement and description in the gift of the Lord Treasurer. In 1623 Wilson petitioned the Lord Treasurer again in a request for three years’ worth of this pay, now calculated at £50 per year.⁶⁷ He requests it in consideration of “this painefull place” in which he has had “extraordinary paynes and charges of himselfe, and his clerkes” for accessioning, transcribing and translating, in addition to outgoings “for wood and cold paper and partchment and other charges in binding of all materiall papers into bookes to prevent the embeaslony thereof.”⁶⁸ (Safeguarding against embezzlement was clearly a continuing preoccupation for Wilson.) Since the new Lord Treasurer had taken over his “great and troublesome place,” Wilson has had no such allowances, although they were customary: “Sir John Bingley Sir Robert Pye and Mr Willard can certifye your Lord(ship) that it hath beene paid by the L(o)rd Threasurers […] when it was required.”⁶⁹ Wilson notes that he has previously petitioned the current Lord Treasurer for this allowance, and “you were pleased to make answer that you would

62 63 64 65 66 67 68 69

SP 45/20 f. 43 r. SP 45/20 f. 43 r. Cal. State Papers Dom. (1611 – 18), p. 609. Sainsbury, p. 232. Pollard, “Wilson, Thomas.” SP 45/20 f. 52 r. SP 45/20 f. 52 r. SP 45/20 f. 52 r.

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consider of it,” but clearly the matter had gone no further.⁷⁰ Wilson goes on that he has no other financial benefit “by the said paynfull office for himself his two clerkes, and one to bind up the bookes but only his poore fee w(hi)ch wold (?) nothing neare contervaile the labour & charges thereof.”⁷¹ Though Wilson was apparently still receiving his tiny salary of £30 a year, he was obviously having to pay his assistants out of his own pocket. He had also recently been very ill and accumulated significant medical expenses, “driven to great need by his chargeable sickness.”⁷² Wilson attempted to augment his finances by lobbying for extra offices. There was an abortive plan to appoint him as Master of Cambridge University’s Trinity Hall, probably in 1615.⁷³ He petitioned James on numerous occasions for the Mastership of Requests. In June and August 1616 he asked to replace the ailing Sir Roger Wilbraham in the role upon the latter’s imminent death.⁷⁴ According to Stewart, in lobbying for the position he complained that he did not want to “bee buried amongst dead papers.”⁷⁵ Wilson reminded the King of his twenty-six years’ State service, ten of which had been spent ordering the State Papers out of “extreme confusion,” and gave as his reason for wanting the Mastership that it would provide him with access to the King so that he “could oftentimes present to him such matter out of his papers as would be not unworthy of consideration, there not being so much use made of them ‘as the treasure therein hidden’ deserves” – a prospect which James clearly did not find as enticing as Wilson had hoped.⁷⁶ Wilson reiterated his request for at least some food should this application be unsuccessful, asking for a “diet at Court” on top of his £30 p.a.⁷⁷ He lobbied again for the position in 1617, apparently in March, once it had been promised to him the previous year but ultimately given to Sir Lionel Cranfield, and once more lamented the waste of his own talents in “being always buried amongst the papers” – such remarks suggest, as Stewart writes, that Wilson’s repeated petitioning was motivated not only by financial considerations but also by disillusionment about the nature of archival work.⁷⁸ In October 1617 Wilson petitioned to be 70 SP 45/20 f. 52 r. 71 SP 45/20 f. 52 r. 72 Sainsbury, p. 234. 73 Cal. State Papers Dom. (1611 – 18), p. 341. 74 Cal. State Papers Dom. (1611 – 18), p. 374, 390. 75 Wilson quoted by Stewart, p. 245. 76 Cal. State Papers Dom. (1611 – 18), p. 390. 77 Cal. State Papers Dom. (1611 – 18), p. 390. 78 Cal. State Papers Dom. (1611 – 18), p. 445; Stewart, p. 245. Wilson’s social and professional disappointment is echoed by some of Friedrich’s frustrated early modern Continental archivists. Friedrich, Die Geburt des Archivs, p. 139.

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given the position after the new incumbent, Sir Daniel Dun, adding that he had been promised it three times already, and reminding the King and Villiers of his qualifications for the post and his service “abroad and at home.”⁷⁹ In a later petition for the Mastership of Requests, possibly from 1622, he noted that Villiers had promised it “to him six years before,” and summarised his various services to the Crown, including “his embassy in Spain 1603 – 4” and his seventeen years’ service in the SPO; at the same time he additionally petitioned for a knighthood for Randolph as his son-in-law, joint SPO keeper, and the son of the ambassador (and secret agent) Thomas Randolph.⁸⁰ (He reminded James that the latter had been “long time ambassador with him in Scotland”.)⁸¹ All these overtures proved unsuccessful: in a letter apparently from 1623, Wilson complained that his fee did not cover even a tenth of the expense of running the SPO, and that although he had thought of “divers suits” for extra income, others had “found the way to get them out of my mouth,” so that he had been forced to liquidate his own assets and savings to survive.⁸² Indeed, Wilson was highly inventive in trying to find other revenue streams, proposing various additional projects to the Crown. These included a scheme (possibly from 1617) for “the creation of an office in which the chartularies of the dissolved abbeys and monasteries shall be transcribed and kept for searches” (many of the originals, of course, had come into the Cotton collection).⁸³ This would have the practical benefit of avoiding “needless litigations […] for want of access to the title deeds” and also “prevent their alienation from the Crown.”⁸⁴ This comment may have been an implicit criticism of Cotton’s collecting activities, by which Wilson may also have been trying to suggest that litigants were being frustrated in finding title deeds by them. (Despite Cotton’s famous generosity, it may not have been obvious to searchers that the records relevant to their legal cases were now located in a private gentleman’s collection.) Another notion was “the creation of an office of ‘register of honour,’ to be filled by himself, so as to obviate the frequent disputes for precedence among knights and their ladies” – clearly the strange little scheme described by Wilson in the letter to James cited previously, in which those honoured by the Crown

79 Cal. State Papers Dom. (1611 – 18), p. 489. 80 Cal. State Papers Dom. (1619 – 23), p. 473. 81 Sainsbury, p. 234. 82 Sainsbury, p. 236. 83 Cal. State Papers Dom. (1611 – 18), p. 508; Pollard, “Wilson, Thomas”; Fussner, p. 149; Hall, p. 39, fn. 1. 84 Cal. State Papers Dom. (1611 – 18), p. 508; Pollard, “Wilson, Thomas.”

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would have to pay Wilson a fee for maintaining an accurate record of the fact.⁸⁵ In a petition apparently from 1618 concerning this project, for which he attempted to enlist Villiers’ support on the ground that it would also benefit the SPO, Wilson complained to James that his income was “only 30 l. per ann.”⁸⁶ Though Hall does not cite any primary sources, he appears to suggest that Wilson was successful in establishing both the chartularies search office and the “register of honour,” which Hall portrays as “branch offices” of the SPO.⁸⁷ Another draft letter, probably also from 1618, to the King – in which Wilson complained of having lost the clerkship of imposts and the extra £40 a year for archival work, and petitioned for either their return or the establishment of the register of honour – is accompanied by an additional draft, from which it appears that the Pages of the Bedchamber had heard of Wilson’s idea and were petitioning to establish the register of honour themselves, even though they already received three pounds and ten shillings from each new knight.⁸⁸ Wilson argued the advantages of adding the register to the SPO and seems to have included a draft warrant for its establishment and his own appointment to it, with a fee of five pounds for recording each new knight.⁸⁹ Wilson even suggested founding a news gazette like those already published “in Germany, France, Italy, and Spain,” with a patent – to be shared with a “Mr. Pory” – to print it and also “to be ‘overseers of all books of humanity which shall be printed.’”⁹⁰ The gazette idea came to fruition under the Restoration-era Keeper Sir Joseph Williamson, who employed the SPO’s clerks in publishing a newspaper called the Gazette (eventually the famous London Gazette) and carrying on correspondence with “subscribers in the provinces.”⁹¹ A letter from Wilson to an unnamed official is undated, annotated only “the 13th of” but probably from around 1624, since in it Wilson also asks for a warrant to seize the papers of the King’s Secretary for the Latin Tongue (a warrant granted in 1624).⁹² It illuminates the chaos of Jacobean personnel procedures, dependent on promises, influence, and the monarch’s changeable affections. Here again, Wilson has cause to be aggrieved. He has heard that many are interested in obtaining the 85 Pollard, “Wilson, Thomas”; Edwards, Libraries, p. 186. 86 Cal. State Papers Dom. (1611 – 18), p. 609. 87 Hall, p. 39. 88 Cal. State Papers Dom. (1611 – 18), p. 610. 89 Cal. State Papers Dom. (1611 – 18), p. 610. 90 Cal. State Papers Dom. (1619 – 23), p. 330; Pollard, “Wilson, Thomas.” 91 Hall, p. 39 – 40. Edwards suggests that the Gazette did not originate with Williamson but that he took it over, by devious means, from the previous editor Roger L’Estrange, who seems to have used it as a propaganda weapon against the anti-Royalist interest. This background is uncertain and requires further investigation. Edwards, Libraries, p. 191 – 192. 92 SP 45/20 f. 74 r.

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position of Secretary for the Latin Tongue, and some even claim that they have been promised it.⁹³ This is despite the fact that it was well-known that “his Ma(jes)tie had once graunted it to me when Sir Thomas Smith dyed as a fitt additant to my poore and paynefull office that I serve in,” but that Sir Thomas Lake (a previous favourite of James’s) had snatched the office away from Wilson.⁹⁴ (The fact that Wilson’s expertise in Latin was sufficiently well-known that he had been chosen to translate James’s A Premonition into Latin must have made this circumstance particularly galling to Wilson.) Similarly – Wilson continues his complaint – although the King had then promised Wilson the next position available at the Requests, “Sir Lionell Cranfeild and others” had deprived him of this opportunity.⁹⁵ Apparently in reference to the Secretary for the Latin Tongue position, Wilson concludes sadly that “I am in noe hope to gett it nowe, and therefore I become a suitor to your h(ono)r for Mr Dickenson, whom I thinke you knowe to be the fittest man about the court for it.”⁹⁶ He adds reproachfully “I humbly crave pardon that I am soe bold to begg for others not having the heart to aske any thing for my selfe, who have served his Ma(jes)tie and this state before above thirty yeares paynefully and carefully and yet never gott any thing nor never hope unlesse it come from his Ma(jes)tie’s own graciousnes or your h(ono)r’s goodness; for of all others I have little hope of good, but come good come ill, or come what will, I will ever be” etc. ⁹⁷ A bill for Wilson’s outstanding expenses over a period of seven years appears to have been presented during the reign of Charles I, as it contains a reference to “his late Majestie.”⁹⁸ Fussner dates it to 1628.⁹⁹ Wilson lists all the duties that he has undertaken in the SPO, including regularly lighting fires to keep the papers from rotting.¹⁰⁰ From this letter it appears that it was not just James’s disinterest that played a role in Wilson’s financial troubles, but also simple inefficiency in other parts of government. He was not paid for the wainscoted cupboards, shelving, and desks that he had been commanded to install by Suffolk, then Lord Treasurer: “to him I gave the bills, and an other coppie of them to Mr Basill then sur-

93 SP 45/20 f. 74 r. 94 SP 45/20 f. 74 r. 95 SP 45/20 f. 74 r. 96 SP 45/20 f. 74 r. 97 SP 45/20 f. 74 r and v. 98 SP 45/20 f. 102 r. 99 Fussner, p. 78. 100 SP 45/20 f. 102 r.

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veyor of the workes, but they both dyed before I was payed and soe I never had it, all which cost amounteth to 120 £.”¹⁰¹ By now, Wilson’s overall bill was £825.¹⁰² Fussner notes that in an earlier petition to Charles, Wilson “had observed that out of his allowance he had been forced to keep three clerks, ‘two to write and register such things as are called for by the secretaries, privy councillors, ambassadors, and others […] and one more to bind up those papers that are material into books, whereof I have already made up at least 500 great books of all business of all several kingdoms and states.’”¹⁰³ However, a close examination of this earlier letter from 1625 suggests that Wilson was not quite as destitute as he liked to make out, even though his financial burdens were extreme.¹⁰⁴ “It is true, that his late Ma(jes)tie did give me 100 £ a yeere, during my life, but that was for my service done in Spayne” (a reference to Wilson’s diplomatic and espionage career).¹⁰⁵ Here Wilson – recently recovered after “months of a lingering ague” at home in Hertfordshire – bitterly returns to the theme of the discretionary extra income in the gift of the Lord Treasurer.¹⁰⁶ The last one (Middlesex) “did still put mee of, with fayre wordes, bidding mee still to have patience, untill there were more mony, and my allowance should be the greater, soe that he drive mee of with fayre promises, untill himselfe went out of the office. And my Lord Tres(u)rer that nowe is, since his coming to the place, hath payed mee nothinge thereof.”¹⁰⁷ In a later appeal to the Lord Treasurer, Wilson’s complaints again evoke the chaos of the Stuart financial administration, but also imply that he had for a time been successful in obtaining an allowance for food: he “never had any rewarde but only that which is allowed to him for this office which is an hundred £ fee and sixty pounds a yeare towards his diete, firinge and other charges and extraordinarie service there, all which hath been duly paied him all the saied time untill now of late of which sixty pounds p annum he is full seven yeares and more unpayed and a year and three quarters of his fee besydes near two hundred pounds more for other services and layinge out which he hath been commanded to do.”¹⁰⁸ This total yearly salary of £160 seems to have been adopted for later Keepers.

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SP 45/20 f. 102 r. SP 45/20 f. 102 v; Fussner, p. 78. SP 45/20 f. 139 r; Fussner, p. 78. SP 45/20 f. 139 v. SP 45/20 f. 139 r. Hall makes a brief reference to this “political pension,” p. 38. Sainsbury, p. 238. SP 45/20 f. 139 r. SP 45/20 f. 99 r.

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Wilson’s personal financial situation worsened as he aged, as demonstrated by a later petition to Charles I. By this point Wilson “hath spent the greatest part of his owne meanes left him by his father & frends.”¹⁰⁹ Wilson is asking, in consideration of the Crown’s now considerable debt to him, “to be made an Irish Earl.”¹¹⁰ Then he would never trouble the King again, and would be content to get the money owed him “out of the customes of Ireland, or out of such meanes as he shall fynde.”¹¹¹ Wilson’s ambition to profit from colonial endeavours was not limited to Ireland; he was also one of the Virginia Company’s original subscribers and keenly followed “discoveries in the East Indies.”¹¹² This undated petition is the last such plea preserved in the SPO’s internal papers, and in it, Wilson looks back with bitterness over a career in the Crown’s service spanning more than forty years.¹¹³ Stewart has analysed the Wilson family’s personal correspondence and found that in 1629 Wilson was so much in debt that he came close to selling the Keepership itself, but at the last moment, a fatal stroke prevented him from doing so – to the joy of his own daughter.¹¹⁴ In 1632 (Sainsbury has 1633) Wilson’s widow Margaret made a claim for £100 back pay owed him by the Exchequer, apparently to pay her attorney Robert Long.¹¹⁵ These various examples show Wilson’s dependence on the grace and favour of prominent officials such as Villiers and the Lord Treasurer, and illustrate the popular view of James as a monarch with little interest in the business of government, preferring to spend extravagantly on frivolities and favourites (most notoriously on Villiers). Edwards comments that Wilson’s petitioning in the reigns of both James and Charles confirms a characteristic syndrome of miserliness and unfairness combined with “capricious and reckless bounty.”¹¹⁶ The futility of Wilson’s wheedling attempts to obtain better posts and more money, the worthlessness of official promises, and the corruption that he encountered and in which he also engaged, all seem to bear out Trevelyan’s contemptuous assessment of the Jacobean Establishment, in which “the public servant had to purchase his position by a life of bribery and sycophancy.”¹¹⁷ Trevelyan suggests that in this era English political life was shaped more by “personal relations” than at any time “before or since,”

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SP 45/20 f. 100 r. SP 45/20 f. 100 r. SP 45/20 f. 100 r. Also mentioned by Edwards, Libraries, p. 186. Pollard, “Wilson, Thomas.” SP 45/20 f. 100 r. Stewart, p. 250; Moseley and Sgroi. SP 45/20 f. 194 r (pencilled 104 B). Edwards, Libraries, p. 185 – 186. Trevelyan, p. 110.

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with a government lacking in rational bureaucratic structures, “a chaos of personal intrigue.”¹¹⁸ The issue of Wilson’s financial woes is worth investigating at such length because of the direct impact that these distractions had on the fulfilment of archival functions. This pressure was not only psychological but also practical, since Wilson was expected to pay his staff directly. Indeed, he was evidently forced to invest considerable energy and time needed for SPO work in repeatedly petitioning James and Charles. Hall points out that in general, when archives-keepers were not paid “a living wage,” or paid irregularly, they were usually to “be found devising some other means of subsistence to the grave detriment of their charge.”¹¹⁹ Underpayment would dog English archives for centuries. When Sir Harris Nicolas criticised appalling preservation conditions in 1830, the explanation given was that the record officers “received inadequate salaries from the Crown.”¹²⁰

118 Trevelyan, p. 110. 119 Hall, p. 38. 120 Hall, p. 24.

25 The political uses of history and the Crown’s records In addition to his other proposals, Wilson also undertook – and suggested – literary work for the Crown. These ventures were of great political significance. In 1609, before Wilson’s official beginning at the SPO (but while he was probably working there on an informal basis), James involved him in the Latin translation of his work A Premonition of his Majesties, to all most Mightie Monarches, Kings, free Princes and States of Christendome, a long explanatory preface to the previous year’s An Apologie for the Oath of Allegiance: the two works were now issued together.¹ The following discussion focusses only on the Premonition, described by Harris Willson as “the most ambitious work James ever attempted.”² It was also very un-regal in its language and disconcerted James’s English courtiers with “its violent tone.”³ The two works were occasioned by conflict between James and the Roman Catholic Church (“I thinke my selfe as good a man as the Pope, by his reverence”) over the Oath of Allegiance for Catholic subjects that James had introduced after the discovery of the Gunpowder Plot.⁴ Where religious terrorism is concerned, James is at pains to distinguish between good and bad Catholics: the Oath is designed to separate “Papists of quiet disposition, and in all other things good Subiects, and such other Papists as in their hearts maintained the like violent bloody Maximes, that the Powder-Traitors did.”⁵ While James is outraged by the various Breves issued against the Oath by Pope Paul V to prevent English Catholics from taking it, and by the repudiations of it that immediately appeared in English and Latin (“Thus may a man see how busie a Bishop the Deuill is”), his greatest ire is reserved for Robert Parsons, the English Jesuit priest in exile who has dared to attack the late Queen Elizabeth and make hurtful and gratuitous personal remarks about himself.⁶ The bulk of James’s defence is, however, historically-based, and his mocking reference to Parsons as an ‘Historian’ may be intended to highlight his own contrasting careful use of primary sources (as Harris Willson notes, here James had

1 2 3 4 5 6

James I, An Apologie and a Premonition; Harris Willson, p. 48. Harris Willson, p. 44. Harris Willson, p. 49. James I, p. 4. James I, p. 9 – 10. James I, p. 11; Harris Wilson, p. 41.

https://doi.org/10.1515/9783110791464-027

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a great deal of research assistance from learned Anglican divines).⁷ After a pan-European overview designed to show that secular power had elected popes and invested bishops throughout history up until “this moderne noueltie” of the claim to temporal power, James continues his argument by providing a detailed examination of English precedents in which monarchs and churchmen ignored the Pope’s wishes, especially cases in which the monarch insisted that the jurisdiction of the English courts trumped that of Rome.⁸ He then invokes a civil law principle to rebut perceived flaws in the argument from (inconsistent) precedents, to defend – in this instance – Edward Coke against Parsons: “euen by the ciuill Law, in the case of violent intrusion and long and wrongfull possession against mee, it is enough if I proue that I haue made lawfull interruption vpon conuenient occasions.”⁹ Since Wilson was involved in the Latin translation of this work, with its political uses of historical sources and its argument for a particular view of the English constitution as against the Church’s claims, he was privy to James’s political and constitutional preoccupations. This familiarity may have emboldened Wilson to make a proposal for a commission that would similarly weaponise historical research in the Crown’s current political interest, and also supplement Wilson’s income. In this undated draft letter (annotated in pencil 1618/9) Wilson reminds James that when the monarch first visited the Paper Office and saw “the Multiplicity & masse of business, that there was of yo(u)r Kingdom of Ireland, more than of all other Contryes, you were pleased to say, (and that truely) that wee hadd more a dooe, with Ireland than w(i)th all ye World besids.”¹⁰ A later list compiled by Wilson allows comparison of the Irish records’ extent with the materials on other countries. There were 120 bound volumes concerning Hibernia, while the holdings for France consisted of only twenty-three “great Bookes.”¹¹ (The records on Germany were truly meagre: there were three books of correspondence with the Emperor and with the “Princes of t(he) sole countries” starting in the reign of Elizabeth, one book containing negotiations with the Protestant princes, and three books “of the busines of the hanstownes in generall and particulerly of Lubeck Dansig Stade Hambrough and Embden.”¹²) Nevertheless, Wilson continues, the huge amounts of material on Ireland have mostly lain fallow and unused, despite the fact that “all other things in that place”

7 Harris Willson, p. 44 – 47. 8 James I, p. 22 – 25, 27– 31. 9 James I, p. 32. 10 SP 45/20 f. 30 r (alternatively 50 A). 11 SP 45/20 f. 166 v. 12 SP 45/20 f. 167 v.

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had seen “continuall use for yo(u)r service,” and Wilson considers it “a groat pitty” that “such a Treasure should be allwayes hydden.”¹³ With “ye advise and helpe of some of my verry iudicious frends,” Wilson wants to resume the official history of Ireland and bring it up to the present day.¹⁴ However, “before wee wade too farr in the buisiness,” Wilson wants permission to “comunicate such things in my custody as I shall thinke necessary” to his collaborators and discuss the project with men, such as Sir James Ley (who had been a judge in Ireland), “who by their experience as y(ou)r witnesses can helpe mee w(i)th the circumstances of those things, whereof my Papers doe give mee but a bare Relacion.”¹⁵ This letter, which is an access request to show State Papers to third parties, suggests that the envisioned project was to be based on both primary sources and oral interviews. If James sponsors the project, Wilson promises that it will be “done incorruptafide [in uncorruptible faithfulness] as Cor. Tac. [Cornelius Tacitus] p(ro)miseth of his History.”¹⁶ Wilson then breaks into grammatically and orthographically idiosyncratic Latin which seems to promise that the project will be absent of hate, anger, or lust (apparently also without love, though the linking word cannot be deciphered), but truthful (sine ira aud odirunt absentandi libidine uscham sine amore, alio quam veritatis).¹⁷ This appears to be a mangled elaboration of the opening of Tacitus’s Annals, which promises to treat the related events without anger or partiality.¹⁸ The allusion is consistent with the early modern veneration for Tacitus discussed previously, and if James did not financially support Wilson’s project – which remains unclear – this may have been due to nervousness about the moralising tendencies of Tacitean historiography vis-à-vis the ruling class. (It was probably too early for James to have been aware of the threat posed by Tacitean Saxonism in the context of the Ancient English Constitution.) Wilson is so excited by the project that he has already started work, without waiting for James’s permission: “I have […] sent to Mr. Sec(re)t(ary) Calvert ye Preface & Introduction thereunto w(hi)ch wee have already fframed; w(hi)ch though it be but the Frontispiece to ye building that wee purpose to make, yet if your Ma(jes)tie please to cast yo(u)r gracious Eye upon itt at yo(u)r best Pleasure, you may therby considere what ye cost may be.”¹⁹ He concludes with a request to be

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SP 45/20 f. 30 r (alternatively 50 SP 45/20 f. 30 r (alternatively 50 SP 45/20 f. 30 r (alternatively 50 SP 45/20 f. 30 r (alternatively 50 SP 45/20 f. 30 r (alternatively 50 Tacitus, Annales, 1. SP 45/20 f. 30 r (alternatively 50

A). A). A); Lee, “Ley, James.” A). A). A).

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informed of whether James approves the group project.²⁰ The reference to cost suggests a strong pecuniary motive. Wilson may have thought that launching an expensive and prestigious official history project, and involving his highly placed friends, would put psychological pressure on James to pay him not only his outstanding expenses, but also extra remuneration for the extraordinary effort of such an undertaking. Despite Wilson’s previous nailing of his colours to the mast of Tacitean objectivity, he concludes in a manner suggesting that the Crown’s political interest will be uppermost in the history. He prays “God long to preserve yo(u)r Ma(jes)tie to See ye great happines (?) both ye Kingdoms & all other yo(u)r Dominons have ever enioyed under yo(u)r happy Govenm(en)t.”²¹ He thus indirectly reassures James that the history will contain no suggestion of Irish unhappiness. The directness, friendliness, and occasional colloquialism of this communication are striking and suggest a significant degree of familiarity between James and Wilson. (The latter’s register contrasts with the later Civil Service Mandarin employed by nineteenth-century Keepers in their communications with Cabinet members.) Extensive searching turns up no definitive answer as to whether Wilson ever wrote his history of Ireland. (He had a long-standing interest in the country, authoring, in 1615, a plan for its “military government.”)²² The most likely candidate appears to be an unfinished work entitled The Chronicle of Ireland, 1584 – 1608 and attributed to Sir James Perrott, for which materials from the State Paper Office were used: indeed the editor of the twentieth-century edition of the work, Sir Herbert Wood, was firmly convinced that this was the history that Wilson had planned.²³ Wilson’s proposal raises the question: what was the earlier official history of Ireland to which he referred? The Irish Royal Society of Antiquaries suggest that it may have been “Stanyhurst’s contribution to Holinshed,” while Wood suggests other contributors to Holinshed’s Chronicles such as “John Vowell or Hooker.”²⁴ However, there is another possible candidate, considering Wilson’s legal background – the work published in 1612 by Sir John Davies, Attorney-General of Ireland, entitled A Discoverie of the True Causes why Ireland was never entirely Subdued, nor brought vnder Obedience of the Crowne of England, vntill the Beginning of

20 SP 45/20 f. 30 r (alternatively 50 A). 21 SP 45/20 f. 30 r (alternatively 50 A). 22 Pollard, “Wilson, Thomas.” 23 Author unknown, “Review of The Chronicle of Ireland,” p. 274; Herbert Wood, “Preface,” p. v-vi. Many thanks to Michael Riordan for sending me a copy of this Preface. 24 “Review of The Chronicle of Ireland,” p. 274; Herbert Wood, p. vii.

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his Maiesties happie Raigne. ²⁵ It is a revealing case study of the official uses of history and primary source research under James I. This work has been previously mentioned in the context of its role in English legal imperialism; Burgess notes that Davies “made extensive use of civil law principles in his attempt to import English common law to Ireland.”²⁶ Ireland had been a great problem for the Tudors, with a disloyal and violent Anglo-Norman aristocracy intent on their own political infighting.²⁷ The Irish Nine Years’ War, otherwise known as Tyrone’s Rebellion and mainly centred on Ulster, had finally been won by England in early 1603 – the triumph to which Davies alludes in his book’s title – followed by James’s attempt to colonise the North of Ireland.²⁸ Viewed in this context, Davies’ work of both military and legal-comparative history is highly programmatic. He applies a Tacitean Germania framework, so that the Irish stand in for the noble but uncivilised Teutons and the Anglo-Norman aristocracy for the decadent Romans. The Irish, Davies notes, are an ancient Christian nation, lacking “neither wit nor valour” and loving “Musicke, Poetry, and all kinde of learning,” with a land rich in resources “necessary for the Ciuill life of man,” yet they lack the outward (i. e. English) signs of civilisation.²⁹ Before the time of Henry II, “they did neuer builde any houses of Bricke or stone […] Neither did any of them in all this time, plant any Gardens or Orchards […] [nor] liue together in setled Villages or Townes.”³⁰ He is particularly shocked that he can find only one deer park in the whole of Ireland.³¹ Davies asks why the Irish do not pursue these civilised interests, instead of being idle, devious, and gossipy? and answers himself indignantly that it is not their fault.³² They are equal to the English in their physical and mental potential but have been terrorised and exploited by a rapacious, warring elite – thus, although Davies unquestioningly accepts negative English stereotypes of the Irish, he rejects the idea that these characteristics are intrinsic.³³

25 Davies, A Discoverie. 26 Burgess, p. 80. 27 Elton, England under the Tudors, p. 30 – 31. 28 Pole, Customs in Conflict, p. 1. 29 Davies, A Discoverie, p. 169 – 170. 30 Davies, p. 169 – 170. It is not clear whether Davies means to echo Tacitus’ comments on the Germans so closely: “The fact is that although their land is fertile and extensive, they fail to take full advantage of it because they do not work sufficiently hard. They do not plant orchards, fence off meadows, or irrigate gardens.” Tacitus, Germania. 31 Davies, p. 163. 32 Davies, p. 174 – 177. 33 Davies, p. 2, 174 – 177.

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Davies argues for the necessity of extending the Crown’s legal purview over Ireland and wresting control from the Anglo-Norman aristocracy, based on Jean Bodin’s “civil law maxim that ‘a king is not sovereign where others give law without reference to him.’”³⁴ The Anglo-Norman settlers had quickly recognised that it was in their interest to exclude the native Irish from the protections of the English common law and to maintain a state of constant war in order to receive further delegations of power from the Crown, whose interest “they had ceased to advance.”³⁵ According to Davies, they convinced the Crown that “the Irish inhabiting the Lands fully Conquered and reduced, being in condition of slaues and Villaines, did render a greater profit […] then if they had bin made the Kings Free-subiects.”³⁶ He arrives at these conclusions through a close analysis of “the Parliament Rolles […] from the fortith yeare of Edward the thirde, when the Statutes of Kilkenny were enacted, till the raigne of King Henry the eight,” and finds consistently that the “degenerat and disobedient English” are “called Rebelles; but the Irish which were not in the Kings peace, are called Enemies […] as if the Irish had neuer bin in condition of Subiectes, but alwaies out of the protection of the Law.”³⁷ Various segregationist “heauie paenall Lawes” forbade the English “to marry, to foster, to make Gossippes with the Irish; or to haue anie Trade, or commerce in their Markets or Fayres.”³⁸ (This was despite repeated Irish petitioning to be “admitted to the benefit of the [English] Law.”)³⁹ Davies suspects that these measures express not only the intention on the part of the Irish government under the English Crown “to make a perpetuall separation and enmity betweene the English and the Irish,” but also an ultimately genocidal aspiration “that the English should in the end roote out the Irish.”⁴⁰ The Irish very naturally denied the Crown their fealty and, as they were banned from town environments and denied the opportunity to buy English common-law freeholds with certainty of tenure, took to a wild existence in the backwoods and mountains governed by their own – to Davies’ eye chaotic – laws.⁴¹ The English-Irish war which went on for four hundred years “would haue lasted to the Worlds end” if the re-conquest had not been com-

34 Pawlisch, “Abstract: The cases of gavelkind and tanistry: legal imperialism in Ireland, 1603 – 1610”; Pole, p. 88. 35 Pocock, p. 61. 36 Davies, p. 147. 37 Davies, p. 111. 38 Davies, p. 111 – 112. 39 Davies, p. 114 – 116. 40 Davies, p. 112. 41 Davies, p. 117– 118.

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pleted at the end of Elizabeth’s reign and the Irish had not been “protected and gouerned by the Law” since the beginning of James’s.⁴² Davies attempts to exonerate the Crown of any responsibility for this disaster and to “lay the fault vppon the Pride, Couetousnesse, & ill Counsell of the English planted heer, which in all former ages haue bin the chiefe impediments of the final Conquest of Ireland.”⁴³ This contradicts the numerous historical instances that he details, when the Crown failed to assert itself against a rogue aristocracy or respond effectively to Irish appeals for rights, or used the Anglo-Norman settlers as a proxy mercenary force (instead of sending its own army) and then rewarded them with vast grants of land, “whole Provinces and Kingdoms.”⁴⁴ (Davies points the contrast to the Roman custom of rewarding victorious generals only with “Honorable Offices and Triumphes” or William the Conqueror’s care to give his followers “sundry Lordships and Mannors” rather than entire shires.)⁴⁵ The primary source research involved was considerable. Davies seems to have been given free reign to use the records in the Tower repository together with further records held in “Westminster,” and Dublin Castle.⁴⁶ However, despite the official nature of Davies’ project, there is no indication that he used the Irish State Papers – otherwise Wilson would likely not have made the suggestion to mine them for his own history. The sources that Davies cites include agreements between the English Crown and various Irish kings, and financial records in the form of the Dublin Castle pipe rolls, which he uses to show that the Crown did not pay sufficient wages to soldiers stationed in Ireland (so that the latter committed depredations on the local English and Irish populations).⁴⁷ Davies uses his careful analysis of the pipe rolls to undermine the figures contained in previously accepted histories of Ireland, such as Walsingham’s: “the Pipe Rolles […] are of better credite then any Monkes story.”⁴⁸ (This insult to Walsingham, a Benedictine monk of the late Middle Ages, probably suited the official anti-Papist mood.)⁴⁹ Davies debunks further received inaccuracies in a mediaeval manuscript and Holinshed’s Tudor chronicles concerning the revenues and customs of Ireland, by poring over “the Accompt of the profits of Vlster yet remayning in Breminghams Tower,” and 250

42 43 44 45 46 47 48 49

Davies, p. 112 – 113. Davies, p. 144. Davies, p. 156. Davies, p. 156 – 157. Pocock, p. 59. Davies, p. 15 – 18, 27– 30. Davies, p. 37– 39; Encyclopaedia Britannica, “Thomas Walsingham.” Encyclopaedia Britannica, “Thomas Walsingham.”

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years’ worth of pipe rolls containing customs accounts.⁵⁰ He also examines the Patent Rolls in the Tower of London to deduce the puny numbers of an English fighting force in Ireland during the reign of Richard II.⁵¹ Apart from the long saga of military and financial failures, Davies expends great archival research efforts on his other main theme, the abortive attempts to endow the native Irish with rights at English common law, citing the Patent Rolls from the reign of King John and a charter of Henry III.⁵² The failure of these attempts is demonstrated by numerous further records showing that “the meere Irish” continued to be considered “Aliens,” including numerous court cases from the Common Plea rolls in Dublin Castle to show that the Irish were prevented from bringing “any actions at the common Lawe” without purchasing a “Charter of Denization.”⁵³ Davies’ most ambitious use of primary sources comes in his pinpointing of the historical moment when the English planters in Ireland became traitorous to the Crown: “by comparing the ancient Annalles of lrelaud with the Records remaining heere, & in the Tower of London, I do find that this generall defection, fell out in the latter end of the raign of king Edward the second, and in the beginning of the raigne of King Edward the thirde.”⁵⁴ This change occurred over a space of thirty years containing various, cumulatively critical incidents (or “diuers mischieuous accidents”) – which Davies lists and analyses – so that ultimately “the whole kingdome was in a maner lost.”⁵⁵ By examining the primary sources, Davies then identifies a brief recovery from the thirty-sixth year of Edward III’s reign to the beginning of Richard II’s, when the revenue of the Crown was “accounted for,” the King’s writ ran, and the common law was enforced in “Vlster, Munster, and Conaght.”⁵⁶ This short period of civilised efficiency is also agreed upon by “all the Discourses that I haue seene of the Decay of Ireland,” but Davies, not satisfied with secondhand accounts, meticulously confirms them with statutes, pipe, and plea rolls.⁵⁷ Though clearly in the interest of the government and Davies’ contemporary drive, as Attorney-General of Ireland, to replace Irish landholding forms with common-law property tenures via the courts, the Discoverie is far from simplistic or superficial, though Pole suggests that it is seriously anachronistic in its implication

50 51 52 53 54 55 56 57

Davies, Davies, Davies, Davies, Davies, Davies, Davies, Davies,

p. 39 – 41. p. 43. p. 100 – 101. p. 102 – 108. p. 185 – 186. p. 186. p. 216 – 217. p. 216.

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that the problems highlighted by the primary sources still characterised early modern Ireland.⁵⁸ In fact, “the Gaelic Irish were no longer regarded as aliens in the later sixteenth century,” and the “legal and social disabilities” identified by Davies had “applied in late medieval Ireland rather than his own day.”⁵⁹ However, Wilson’s own work The State of England raises doubt that he would have been capable of reaching Davies’ level of scholarship or imaginative sympathy (even if disingenuously motivated by Davies’ great professional project, in the service of the Crown’s attempt to undermine the great Anglo-Norman landowners, of extending freehold tenures to their “tribal underlings”).⁶⁰ Wilson’s interest in Ireland seems to have been actuated by purely self-centred, pecuniary motives. Indeed, he attempted to benefit from the English re-conquest of Ulster by petitioning “for a grant of two thousand acres” there in 1618, in the hope of joining the very settler class whom Davies excoriated, and his scheme to harvest Irish customs revenues has previously been mentioned.⁶¹ Wilson’s suggestion of this research project is interesting because it shows him identifying one of the Crown’s most topical and pressing concerns – the recovery of Ireland and the imposition of a unitary legal system upon it – in order to tempt James into approving an up-to-date official Irish history using the rich and hitherto unexploited resources of the SPO. Both Davies’ work, and Wilson’s attempt at a similar programmatic research project, highlight the contemporary political uses of archives in the Stuart age.

58 59 60 61

Pole, p. 3, 92. Pole, p. 92. Pole, p. 97. Pollard, “Wilson, Thomas.”

26 Records accessioning and power politics during Wilson’s tenure One of the chief archival challenges that Wilson faced was actually accessioning papers, a duty to which he was bound under the Keeper’s oath of office.¹ While the SPO’s internal papers mainly consist of catalogues and inventories of records made by the industrious Wilson, they also contain numerous draft warrants for the seizure of official papers from recalcitrant officials. Although a few Crown servants bequeathed their State Papers to the SPO, Ailes and Mair note that Wilson had problems “with secretaries of state and other officials, who refused to deliver to him public documents to which he considered the state entitled.”² Popper attributes this unco-operative attitude to the development, under the influence of Archbishop Matthew Parker’s archival activities during the Reformation, of office archives kept by statesmen to facilitate their work; having discovered the usefulness of such collections for day-to-day business, they were naturally reluctant to surrender them to the SPO.³ Fussner complains that no effort was made to move mediaeval records to the SPO, and that these remained “in the old repositories at Westminster and the Tower of London.”⁴ This is entirely logical, however, since the Secretary of State as the key executive officer, for whose records the SPO was primarily intended, was a Tudor innovation. Given that the SPO (although already present in an unofficial guise) was only formally established in the Jacobean age, it was not yet accepted practice to accession working papers to it. A couple of examples will illustrate the consequences. The famous Elizabethan spy and diplomat Sir Nicholas Throckmorton’s “papers and negociations” from his missions to France and Scotland only reached the State Paper Office via a bequest from Sir Henry Wotton in 1637, after they were given to him by Throckmorton’s son.⁵ Following the Restoration Sir Joseph Williamson reported that “Most of the private business of Queen Elizabeth’s reign came to the hands of the Earl of Leicester, especially all the Queen’s own letters in matters of secret importance”; these papers were apparently abstracted by Leicester’s secretary, father of the future Privy Council clerk Sir Richard Browne, and eventually came to the famous writer John Evelyn as a result of his having married the latter’s daughter, though in the interim “a great part had perished by time and 1 2 3 4 5

SP 45/20 f 130 r. Ailes and Mair. Popper, “From Abbey to Archive,” p. 258; Fussner, p. 71. Fussner, p. 74. Sainsbury, p. 241.

https://doi.org/10.1515/9783110791464-028

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the distraction of the wars, &c.” during Sir Richard Browne’s exile from England as a Royalist.⁶ Thus Wilson was trying to effect a significant bureaucratic change, and was clearly at a hierarchical disadvantage relative to the highly-placed noblemen whose papers he wanted. He expected to accession the records “of all senior office-holders,” not just “those of the secretaries of state.”⁷ Wilson’s ambition to accession Privy Council papers came up against particular obstacles, as he explained in 1622: these records had been partially accessioned to the office before James’s reign on the understanding that “the Keeper of the Council chest” was allowed to retain as many as would fit “into a moveable chest,” but now that dedicated rooms had been allocated to them in Whitehall Palace, effectively eliminating the constraint on retention represented by the chest, very few of these papers had been offered to the SPO.⁸ Officeholders’ reluctance to give up their documents may be connected to the phenomenon observed throughout this book, i. e. official records seizures from the government’s political opponents and Crown servants in disgrace – seizures often administered and held by the SPO. While officials who were not in disgrace seem to have had enough political autonomy, in practice, to retain their working papers in the absence of a specific warrant, it is likely that the stigma of these official records seizures worked against the SPO’s regular accessioning. Given the context of the Jacobean court, with its gossip and intrigue, their reluctance to surrender their papers – with the negative implications for their reputations – is understandable. Furthermore, the practice of buying government offices or obtaining them through patronage fostered a perception that the papers generated in the course of business also belonged to the office-holder. Indeed, Thrush observes that most public servants viewed their papers, particularly their correspondence, as their “private property.”⁹ Hall misleadingly describes Wilson’s searches and seizures of manuscripts “belonging to attainted or discredited courtiers” as an attempt “to curry favour with the Court.”¹⁰ This misses the extent to which the SPO operated as a centre

6 Sainsbury, p. 245. In 1671 there was a strange episode in which a Thomas Brathwaite offered Williamson a collection of “manuscript books” that “a dying neighbour” had given him. These were likely only miscellaneous collections of transcriptions, rather than originals; they included such sensational documents as Mary, Queen of Scots’ death warrant and an account of the Earl of Essex’s execution. Sainsbury, p. 246 – 247. 7 Ailes and Mair. 8 Sainsbury, p. 234. 9 Thrush, “The Government and its Records, 1603 – 1640.” 10 Hall, p. 38.

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for intelligence-gathering at the will of the Crown, indicated by the reference to ‘matters of secret.’ As Stewart terms it, “archival ambulance chasing” after the papers of dead or dismissed Crown servants was part of the official modus operandi, in practice Wilson’s chief avenue of accessioning.¹¹ Ailes and Mair explain that “The process was for a warrant to be issued upon the death or resignation of crown officials” to accession their papers – though as Wilson noted, apparently in 1617, he had struggled over the past five years to accession at all.¹² Wilson could not even always rely on the convention of records seizures from disgraced individuals.¹³ When Carr (the Earl of Somerset) was brought down in 1615 by the Overbury scandal (in which Cotton was also implicated), Secretary of State Winwood seized Carr’s manuscripts “rather than an irate Wilson.”¹⁴ Another example arose in 1624: Lord Treasurer Middlesex was impeached and lost his position because of corruption, but his papers were not accessioned to the SPO and are still in private possession today.¹⁵ The threat which, in Wilson’s perception, the private collector Robert Cotton posed to the SPO has already been considered. However, Cotton was not the only danger. Another private collector, Ralph Starkey – described by Pollard as an “archivist,” by Cavill as “an antiquarian collector and commercial copyist,” and by Sir Simonds D’Ewes “as ‘an ignorant, mercenary, indigent man’” – seems to have been equally buccaneering in his acquisition of records.¹⁶ Sharpe states that Cotton had encouraged Starkey’s studies and even gave him a home in 1625.¹⁷ Though officially a London merchant, Starkey’s “energies were […] chiefly devoted to the collection and transcription of state papers and other manuscripts,” and he had managed to acquire “many important and confidential papers that had formerly belonged to William Davison, Queen Elizabeth’s secretary of state.”¹⁸ Wilson obtained a warrant of the 10th of August 1619 to search Starkey’s house for Davison’s records and seize them all – in total forty-five bundles of papers in a large sack.¹⁹ Starkey retained other documents up until his death, including important collections on “the laws, customs, and constitution of England,” Privy Council acts from the

11 Stewart, p. 244. 12 Ailes and Mair; Riordan, “The King’s Library of Manuscripts,” p. 18; Sainsbury, p. 229. 13 Thrush, “The Government and its Records, 1603 – 1640.” 14 Thrush, “The Government and its Records, 1603 – 1640.” 15 Thrush, “The Government and its Records, 1603 – 1640.” 16 Pollard, “Starkey, Ralph”; Cavill, p. 91. Intriguingly, Cavill notes that Starkey had presented James with a self-compiled treatise on the Anglo-Saxon origins of Parliament before his accession. 17 Sharpe, Sir Robert Cotton, p. 35. 18 Pollard, “Starkey, Ralph.” 19 Pollard, “Starkey, Ralph”; Stewart, p. 245.

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reign of Henry VI, and key documents for the reign of Edward VI.²⁰ These other records eventually came into the private Harleian Collection and from thence to the British Library.²¹ It may at first glance seem strange that a London merchant should be interested in collecting constitutionally-significant materials, but in fact this was entirely consistent with the involvement of the capital’s mercantile class in the controversies generated by the Crown’s customs policy, as discussed earlier. The cataloguing of Coke’s papers in the SPO in 1622 followed the official seizure of his papers by Cotton and Wilson. Wilson’s inventory seems to have been a result of his archival appraisal as to which of Coke’s papers concerned State business, and this is likely the reason why he described them as those that were “fitt to be kept” in the SPO.²² (Indeed, Wilson appears to have actively appraised papers as a matter of course, explaining in 1625 that the 500 bound volumes produced during his tenure contained “the papers that are material” – a phrase that suggests a legal approach to appraisal.)²³ Wilson remarks that after he had made this first list of the papers, they were “sorted into other heads by Sir Robert Cotton in my presence” (which sounds like a complaint about Cotton’s interference) and that the Lord President of the Privy Council came to peruse them “dyvers tymes,” clearly hunting for evidence against Coke.²⁴ These working papers, as described by Wilson’s list, provide an arresting impression of Coke’s activity in prosecuting the great treason cases of the age.²⁵ Altogether the list contains details of papers relating to approximately twentyseven conspirators or suspected conspirators – suggesting the nervousness, as well as the ruthlessness, of the Crown’s grip on power.²⁶ Throughout, Wilson is careful to stress the prominence of records relating to ‘traitors,’ while the emphasis on Parliamentary records is also significant. Wilson describes “A great buckram bagg about the pouder treason” (additional records concerning Catesby and Percy are listed separately), and “A black buckram bagg of the proceedings against Sir Walter Rawley” – Wilson’s part in the 1618 intrigue against Ralegh is discussed later.²⁷ There was also “A smale bundle concerning the ladie Arebella”: Arbella Stuart, the second claimant to the English

20 21 22 23 24 25 26 27

Pollard, “Starkey, Ralph.” Pollard, “Starkey, Ralph.” Ailes and Mair; Stewart, 244. Sainsbury, p. 238. Sainsbury, p. 234. SP 45/20 f. 92 r and v. SP 45/20 f. 92 r and v. SP 45/20 f. 92 r and v.

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throne after James.²⁸ (Ralegh had been accused of implication in a plot to replace James with her, while she herself died in imprisonment in the Tower of London in 1615.)²⁹ The “booke of Pechams business” must be concerned with the treason proceedings against the elderly clergyman Edmond Peacham, as described earlier.³⁰ Further highlights included “A bundle of instructions concerning the presidency and councell of Wales” and some “ancient records” on Parliament, as well as “A litle bundle about the intended marriage with France,” “A blacke buckram bagg concerning the business of the late Earle of Essex,” and the proceedings against Carr in the Overbury affair.³¹ The list does not appear to contain the three manuscripts which, Coke later complained, were never returned to him, so that it cannot be determined whether the working papers in this inventory were accessioned to the SPO or included in the thirty-four manuscripts which were restored to Coke – however, “A calender of the records of Rich the 1st of the Excheq(ue)r” may be an inaccurate reference to Lambarde’s Pandect, which Coke named to Parliament in his speech on the missing manuscripts.³² Here again, confusion between the Tower and the SPO is evident: by rights this finding aid for the Exchequer records belonged in the Tower repository. (Incidentally, it is far from clear why Coke should have had in his possession “A bundle concerning his Majestie’s title to diverse lands of Westmerland Hartford Sufolke Abergavenny Dacres and others.”)³³ That Wilson seems to have sent James this list of Coke’s papers is interesting, suggesting that he expected James to be pleased with this recovery of records that, even in an officially secretive time, would have been particularly restricted, and that he hoped to keep them permanently in the SPO. Wilson’s oath of office had emphasised his obligation to keep the State Papers secret, and given the murk and scandal surrounding (for example) Sir Walter Ralegh’s prosecution, the Crown would clearly have had an interest in securing these papers for itself.³⁴ It is worth examining the circumstances of Wilson’s accessioning from those who, given their institutional connection with the SPO, should have been forthcoming. Although Sir Thomas Lake was Wilson’s predecessor, Wilson obtained Lake’s papers, like those of Secretaries of State Winwood and Naunton and despite their obligations to deliver them under Wilson’s grant of office, only through “ag-

28 29 30 31 32 33 34

SP 45/20 f. 92 r; Encyclopaedia Britannica, “Arabella Stuart.” Steen, “The Correspondence of Lady Arbella Stuart.” SP 45/20 f. 92 r. SP 45/20 f. 92 r and v. SP 45/20 f. 92 v. SP 45/20 f. 92 r. SP 45/20 f 130 r.

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gressive pursuit.”³⁵ (Lady Winwood’s willingness to lend “Carleton any of her late husband’s books and papers that he wishes” cannot have helped matters.³⁶ Later she reported being unable to locate “her late husband’s papers on his Holland negotiations.”³⁷) Clearly the language of the Royal patent was not enough to guarantee success. Furthermore, Secretaries of State Albertus Morton and George Calvert point blank refused to give up their papers at all, again despite their formal duty to do so.³⁸ Wilson seems to have ultimately prevailed in the case of Calvert.³⁹ According to Sainsbury, Wilson’s difficulties eventually led to a late Jacobean Royal order to the Secretaries of State to surrender their papers to the SPO before they left office, and the problems with Morton were addressed by a specific warrant from Charles I in 1625 (after Morton had died).⁴⁰ This duty to deliver papers seems to have solidified over the first three decades of the seventeenth century. The wording of James’s initial permission to accession from Cecil, given in the letters patent of 1610 and quoted by Stewart, seems to have made this only a discretionary decision on Cecil’s part. He was to give Wilson “some such papers as he shall think fit to depart with, being either such as he hath collected of his own times, or such as were left to him from his late father” (William Cecil, Lord Burghley, Elizabeth’s Secretary of State).⁴¹ (Emphasis added.) This wording, combined with the fact that Cecil was Wilson’s direct supervisor, put the latter in a weak position. Wilson was not content with this, however, and on Cecil’s death in 1612, he obtained a warrant from the Privy Council to force “the late earl’s secretaries to hand over to him Salisbury’s papers, as a result of which he was able to bring away from Salisbury House, in the Strand, large quantities of official documents.”⁴² Wilson still did not succeed in obtaining all the State Papers in the possession of the Cecil family to which the SPO had a claim, and a large portion of the rest, as previously noted, is still at Hatfield House.⁴³ These struggles were in spite of the fact that the SPO was directly under Cecil’s administrative authority as Secretary of State, so that he might have been expected to set 35 Popper, “From Abbey to Archive,” p. 262. 36 Cal. State Papers Dom. (1611 – 18), p. 585. 37 Cal. State Papers Dom. (1611 – 18), p. 597. 38 Popper, “From Abbey to Archive,” p. 262. 39 Riordan, “The King’s Library of Manuscripts,” p. 183; Sainsbury, p. 241. 40 Sainsbury, p. 213. 41 Quoted in Stewart, p. 243, and briefly in Thrush, “The Government and its Records, 1603 – 1640.” 42 Thrush, “The Government and its Records, 1603 – 1640”; Stewart, p. 243; Riordan, “The King’s Library of Manuscripts,” p. 183. 43 Thrush, “The Government and its Records, 1603 – 1640”; Stewart, p. 238; Fussner, p. 63; Ailes and Mair.

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an example of supporting its work. On the contrary, the Earl of Northampton complained in 1612 that Cecil, whom he referred to as “the little Lord,” had “made his own cabinet the treasurie of the state’s whole evidences and intelligences,” with the result that a letter from the French King of vital relevance to the dispute with France over its “claim to detain English troops beyond six months” could not be found.⁴⁴ Sometimes Wilson met with outright hostility, such as when he was informed “that his office was needless” by Secretary of State Sir Edward Conway in 1623; Conway’s servant Peasly joined in with the sneer “that it was a new office.”⁴⁵ It is unclear what had prompted this attack. Wilson had sent Conway a catalogue of the State Papers on the 30th of January, noting that this was “as promised,” but given that Wilson also spontaneously promised Villiers research that the latter had never requested, Wilson’s action may in fact have been an unsolicited commemoration of Conway’s appointment to the post of Chief Secretary on the very same day, and could well have irritated him.⁴⁶ Conway’s papers were not finally accessioned (into what was by then the Public Record Office) until more than two centuries later.⁴⁷ Opinion is divided as to Wilson’s success in accessioning government papers from unco-operative officials. Ailes and Mair suggest that Wilson was not very good at asserting himself compared with the later Keeper William Boswell – though they admit that Boswell also had the advantage of being a Privy Council Clerk – and that this may be one reason why the State Papers for the Jacobean era are sparse and scattered between The National Archives (the PRO’s successor), the British Library’s collection, and private possession.⁴⁸ This evaluation of Wilson’s personality conflicts with Hall’s assessment that Wilson’s “bitter jealousy of other official antiquaries and […] strong sense of self-importance proved of inestimable service in recovering and securing the State Papers of his own time.”⁴⁹ Wilson’s success should be judged in his particularly difficult context. He “spent much of his time battling the proprietary instincts of senior office-holders,” and Thrush notes that the actual survival of many of the State Papers that he accessioned is probably attributable to his efforts.⁵⁰ This is likely a reference to Wilson’s assiduousness in preservation, binding up documents into volumes and lighting

44 45 46 47 48 49 50

Cal. State Papers Dom. (1611 – 18), p. 145. Sainsbury, p. 235. Cal. State Papers Dom. (1619 – 23), p. 485; Sainsbury, p. 234. Thrush, “The Government and its Records, 1603 – 1640.” Ailes and Mair. Hall, p. 38 – 39. Thrush, “The Government and its Records, 1603 – 1640.”

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fires to keep away damp and rot. As ostensibly the first actively-accessioning Keeper, Wilson had no institutional tradition to support him: his creation of it made the accessioning of later Keepers such as Boswell somewhat easier. Wilson was dogged in his pursuit of accessioning warrants. One example is his attempt to obtain records of the King’s diplomatic letters in the possession of James’s former Secretary of State for the Latin tongue: “I would intreate your h(onou)r that you would procure his Ma(jes)tie to signe this warrant inclosed to S(i)r Robert Aiton and others the executors of Mr Reade the late Secretary for the latine tongue” to deliver up minutes of correspondence “to forrayne Princes or others” that Reid had retained.⁵¹ This letter is undated, but probably originates from 1624 and was likely sent to the Secretary of State. Wilson was successful: in response the Crown issued a warrant in June 1624, requiring Reid’s executors to cooperate with Wilson, and he accessioned the correspondence.⁵² The warrant echoes the language of Wilson’s letter, that Reid had possessed “all the minuts of our (let)tres written to forrayne Princes or others ever since he served us in that place” and that all of these were to be delivered to Wilson at the SPO “to be ready upon any occasion of our service. “⁵³

Diplomatic instruments Though the Secretary of State was the co-ordinator of the Crown’s diplomacy, as already noted, there is uncertainty as to whether diplomatic documents in the strict sense (i. e. treaties and instruments, as opposed to correspondence) belonged in the State Paper Office, given the terms of the patent under which it was created. Palgrave provided his own analysis of this patent in the mid-nineteenth century.⁵⁴ He believed that it shows no intention to deposit the Crown’s diplomatic instruments in the SPO; they had traditionally been kept in the Exchequer repositories.⁵⁵ Palgrave found evidence for this contention in the transactions that followed the grant of office to Wilson.⁵⁶ For example, in 1621 Wilson transferred to the Exchequer “various treaties with France, with the United States [probably a reference to the United Provinces of the Netherlands], and with the Emperor,” dating from the

51 52 53 54 55 56

SP 45/20 f. 74 r; Sainsbury, p. 236. SP 45/20 f. 76 r; Sainsbury, p. 237. SP 45/20 f. 76 r. Palgrave, Antient Kalendars, vol. 1, p. xxiv-xxv. Palgrave, Antient Kalendars, vol. 1, p. xxiv-xxv. Palgrave, Antient Kalendars, vol. 1, p. xxiv-xxv.

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early sixteenth century up to 1619.⁵⁷ Also in 1621, Chief Secretary of State Calvert delivered James I’s 1621 treaty between himself and Christian IV of Denmark to the Exchequer, while in 1623 Principal Secretary of State Naunton, who had borrowed diplomatic instruments from the Exchequer Treasury “relating to the transactions between Queen Elizabeth and the United States,” returned them not to the SPO but to the Exchequer repository.⁵⁸ Palgrave himself was incensed by the depositing of diplomatic instruments in the SPO, and felt that the SPO’s founding had broken the traditional “transmission of the Treaties to the Treasury, their proper and legal place of custody, and where, according to antient precedent, they ought to rest.”⁵⁹ He does not seem to have considered the practical argument that if the diplomatic correspondence of the Secretaries of State was kept in the State Paper Office, it made sense that the diplomatic instruments of the Crown should be kept there as well – particularly as they were frequently needed for business of State. The confusion may have been exacerbated by the rise in importance of another type of record: diplomatic treaties between other European powers to which England was not a party. This is suggested by a warrant in 1618 to Wilson to obtain “coppies of all such treaties […] as you shall understand to be necessarie for our service.”⁶⁰ The Crown had been informed (by Wilson) “that there are wanting in the office of o(u)r Papers and Records for buisiness of state […] divers treaties both of Alliance, Amity, and Entercourse w(hi)ch have passed in former tymes & of late betwixt o(u)r neighbour Princes and States, wherof both o(u)rself and o(u)r Counsells may have use for our service uppon divers occasions.”⁶¹ Clearly English ambassadors on the Continent could not act appropriately without knowing the relations between other states, as Wilson himself knew based on his former diplomatic career, and, as previously noted, James had been conducting a charm offensive in order to win other European monarchs over to his side, as against the Papacy. Here an interesting parallel can be drawn between the case of James who – unlike his more warlike predecessor – wished to live peaceably with all other European powers, and Venice’s earlier transition to “determined neutrality” after 1529, a change which, de Vivo explains, led to energetic “transcribing and indexing” of “treaties relating to foreign policy” so that the Venetian arsenal of diplomatic documents could be kept “in full order.”⁶²

57 58 59 60 61 62

Palgrave, Antient Kalendars, vol. 1, p. xxiv. Palgrave, Antient Kalendars, vol. 1, p. xxv. Palgrave, Antient Kalendars, vol. 1, p. xxii. SP 45/20 f. 48 r. SP 45/20 f. 48 r. De Vivo, “Ordering the archive in early modern Venice,” p. 242.

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The letter from Wilson which prompted this warrant survives in draft form and must, again, be interpreted against the background of his financial difficulties. Wilson complains of his “pore and painfull office wherein I serve yo(u)r Ma(jes)tie w(hi)ch is now a full duble apprentishipp and more,” suggesting that he had a pecuniary motive in pointing out the lack of foreign treaties.⁶³ The warrant, indeed, includes an order to the Treasury to recompense Wilson “for y(ou)r charges & paynes” in copying them.⁶⁴ Although Wilson had been very active in accessioning, and “did think I had brought it by this tyme to that pass that there was litle wanting in it [the SPO] w(hi)ch was necessarie for y(ou)r Ma(jes)tie’s service,” he had recently received a letter from France in which James’s ambassador had requested copies of the treaties of alliance between France and Frederick V of the Palatinate.⁶⁵ This letter had alerted Wilson to a new opportunity, namely the necessity of accessioning copies of treaties between neighbouring powers “that y(ou)r Ma(jes)tie may at all tymes […] knowe in what tearmes each […] standeth with another.”⁶⁶ Wilson adds that he has few treaties in the office, except those to which the Crown of England was a party: an observation that bears out Palgrave’s contention that the SPO was diverting diplomatic instruments away from the Exchequer repository.⁶⁷ There follows a crossed-out passage – “saving one great booke w(hi)ch was my Lord Chancellor Hatton’s of all the ancient treaties betwixt the Princes of Italie” – a deletion which may indicate that Wilson could no longer find the volume.⁶⁸ Wilson adds that he has already written to James about this matter and received the reply that the King wished to defer discussing it “until you cold speak w(ith) y(ou)r servants w(hi)ch were then both absent.”⁶⁹ His obstinacy in repeating the request was probably motivated by the financial aspect. Wilson promises James that the end result will be “that your Ma(jes)tie shall see this place (as you have promised to make it) the absolutest and worthiest office of that kynd that Christendome can shewe.”⁷⁰ The next sentence, which is crossed out, makes a concrete request “to understand yo(u)r Ma(jes)tie’s pleasure & to have warrant and licence to deale w(i)th Amb(assado)rs and Agents of forraigne countries here resident for my furderance & beter information how to recover

63 64 65 66 67 68 69 70

SP 45/20 f. 49 r. SP 45/20 f. 48 r. SP 45/20 f. 49 r. SP 45/20 f. 49 r. SP 45/20 f. 49 r. SP 45/20 f. 49 r. SP 45/20 f. 49 r. SP 45/20 f. 49 r.

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these things.”⁷¹ The crossing-out suggests that Wilson had second thoughts. Perhaps he recognised that visits by the Crown’s archives-keeper to all the London embassies in search of third-party treaties might strain diplomatic relations. In this project, Wilson may have seen an opportunity to unite his two main areas of expertise, archives and intelligence gathering. Indeed, the letter from James’s ambassador underlines that Wilson was exposed to foreign – as well as domestic – high politics in the course of his archival work. Apparently also in 1618, and connected to the SPO’s function as an arsenal for diplomacy, Wilson drafted a letter to James for permission “to make a collection of books relative to the law and chronology of foreign countries, to be kept in a room newly built of stone, near the Office” – but whether Wilson envisioned a small reference library of actual printed books or instead another large state-sponsored research project, like the Irish history, is not clear.⁷²

71 SP 45/20 f. 49 r. 72 Sainsbury, p. 229.

27 Archives and intrigue: Wilson and the judicial persecution of Sir Walter Ralegh One aspect of Wilson’s involvement in high political intrigue has been mostly overlooked in the secondary sources on his own biography – with brief mentions by Fisher, Moseley and Sgroi, and Pollard – and that is his attempt to incriminate Sir Walter Ralegh, an assignment which also sheds significant light on Ralegh’s last days. It appears from the primary sources that up until close to the end Ralegh’s doom was not yet sealed, as the Crown struggled to find more reliable evidence against him. This episode took place in the autumn of 1618, after Wilson had been knighted on the 20th of July.¹ (The two events may have been connected.) Ralegh had been convicted, in the notorious and highly suspect trial of 1603 (previously mentioned in the section on Coke), of treasonous conspiracy to put Lady Arbella Stuart on the English throne.² (Ralegh’s vehement insistence on the production of the witnesses, instead of reliance on what they were reported to have said, contributed to the development of the hearsay rule in English court proceedings.)³ Ralegh had then been confined to the Tower prison until 1616 with a suspended sentence, but enjoyed widespread popular sympathy.⁴ Toomer states that during this imprisonment in the Tower Ralegh pursued his own research, and that it was in this context that John Selden became friends with him while visiting the Tower himself to examine the public records – raising the question of where, exactly, Ralegh was held in relation to the repository and whether he was allowed free access to the records, although a prisoner.⁵ In any case, Ralegh lent Selden “the Laws of Oleron and a treatise on the Office of the Admiralty,” for which Selden thanked him in his new edition of Fortescue.⁶ The decision to carry out the death sentence in 1618 was widely seen as a political favour to Spain, outraged by Ralegh’s semi-piratical excursion to Venezuela in search of gold, in the course of which his lieutenant had “burned a Spanish settlement.”⁷ The strength of English public feeling in support of Ralegh since his unfair trial may have motivated the Crown to dredge up some definitive evidence of

1 2 3 4 5 6 7

Pollard, “Wilson, Thomas.” Latham, “Sir Walter Raleigh.” Wigmore, “The History of the Hearsay Rule,” p. 450, 458. Latham. Toomer, p. 179 – 180. Toomer, p. 179 – 180. Latham.

https://doi.org/10.1515/9783110791464-029

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further offences in order to justify the execution: hence the idea of insinuating Wilson into Ralegh’s confidences. Wilson was probably selected for the task because of his proven skills in espionage – indeed, Fisher situates the incident within his career as a spy.⁸ On Ralegh’s arrest his person was searched and his “ores, plans, MSS., jewels, &c” were inventoried on the 10th of August.⁹ Ralegh was held in the Tower of London, and Wilson lived with him from the 11th of September to the 15th of October, to wheedle him into making incriminating revelations with which to charge him post-arrest.¹⁰ (This is, of course, yet another case of relevance to the contemporary controversies over judicial rights.) The order of the Privy Council on the 10th of September was worded as a commission “to go to the Tower, and take charge of Sir Walter Raleigh, to remain constantly in his company, and keep him safe and close prisoner, to suffer no person whatever to have access to him, or to speak to him, except in his own hearing, and that only in case of necessity, and to communicate to them anything that occurs worth notice.”¹¹ Pollard notes that there is no evidence “for the suggestion […] by one of Ralegh’s biographers that the real object of Wilson’s employment was Ralegh’s assassination,” by which is meant Ralegh’s murder while still a prisoner, not his ultimate execution.¹² The latter certainly was the objective of the entire project. This episode, like much else connected with Wilson, had its sinister and comical aspects. Wilson related, with ghoulish self-importance, that “his arrival produced an impression on the officers of the Tower as well as Ralegh, that ‘a messenger of death had been sent.’”¹³ According to Stebbing, at the beginning Wilson suggested that only torture could extract the truth from Ralegh, whom he viewed as a liar and a hypocrite.¹⁴ Contrary to Pollard’s depiction, Wilson does not seem to have enjoyed the deployment – indeed Naunton comforted him on the 14th of September with the thought that he would “not be long troubled with” Ralegh, whom Naunton also described as a “hypocrite.”¹⁵ First Wilson was frustrated on the 12th of September by the Tower Lieutenant’s refusal to surrender the keys to Ralegh’s sleeping quarters, so Wilson requested “apartments where Sir Walter might sleep

8 Fisher, p. vi. 9 Cal. State Papers Dom. (1611 – 18), p. 565. 10 Pollard, “Wilson, Thomas”; Jardine, Criminal Trials, Vol. I, p. 489. Jardine describes Wilson as “a man of refinement and learning” but also “inhumanity, meanness, and cunning.” 11 Cal. State Papers Dom. (1611 – 18), p. 568. 12 Pollard, “Wilson, Thomas.” 13 Stebbing, Sir Walter Ralegh: A Biography, p. 347. 14 Stebbing, p. 347. 15 Pollard, “Wilson, Thomas”; Cal. State Papers Dom. (1611 – 18), p. 570.

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in a room within his,” but found that all the best accommodations in the Tower had been commandeered by the Countess of Shrewsbury and the Earl of Northumberland, the latter unwilling “to give up a brick tower” in which his son stayed on occasional family visits.¹⁶ Ralegh refused to move into a room above Wilson so that he would hear Ralegh moving during the night, and Wilson feared that this was because Ralegh’s current room featured two windows, from which he suspected Ralegh of throwing letters.¹⁷ Ralegh, in bed with sores, was reported as saying that “the King may do as he pleases with him, no man being more willing to die.”¹⁸ On the 14th of September Ralegh refused, after some initial havering, to provide any confession of an offer of employment from the French, and related the various plots against him by Suffolk and Northampton.¹⁹ Ralegh commented that he thought that there were circumstances in which a Christian – like the brave Romans – might commit suicide, but did not think that he had “courage left to try.”²⁰ Apparently alarmed by this, the Lieutenant wanted to remove all of Ralegh’s drugs, and Ralegh pointed out that he could still kill himself by dashing his head on a post.²¹ Despite his apparent despair, Ralegh simultaneously attempted to obtain intelligence by spreading the rumour that the French Ambassador had a boat at readiness to help him escape.²² On the same day Wilson succeeded in obtaining an order to have Ralegh moved to the brick tower and the servant who dressed Ralegh’s sores replaced by one of his own; medical personnel were to see Ralegh only in the “presence of Wilson or his servant.”²³ In his briefings to Naunton, Wilson related that Ralegh was thinking of writing James a letter and providing Wilson with a “sealed copy” that he could read once James had received it.²⁴ Wilson lied to Ralegh that his dealings with the French had already been confessed by Ralegh’s accomplices, but Ralegh refused to fall into the trap, although he apparently still held out hope of escaping to France.²⁵ Wilson reported that Ralegh was causing his own ailments by sprinkling his body with “aqua fortis.”²⁶ He thought that fear of assassination by Spain was preventing Ralegh from confessing his agreement with the French, 16 17 18 19 20 21 22 23 24 25 26

Cal. State Papers Dom. (1611 – 18), p. 569. Cal. State Papers Dom. (1611 – 18), p. 569. Cal. State Papers Dom. (1611 – 18), p. 569. Cal. State Papers Dom. (1611 – 18), p. 569. Cal. State Papers Dom. (1611 – 18), p. 570. Cal. State Papers Dom. (1611 – 18), p. 570. Cal. State Papers Dom. (1611 – 18), p. 570. Cal. State Papers Dom. (1611 – 18), p. 569 – 570. Cal. State Papers Dom. (1611 – 18), p. 570. Cal. State Papers Dom. (1611 – 18), p. 570. Cal. State Papers Dom. (1611 – 18), p. 570.

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but that if the Spanish match were to fail there would be a French match and Ralegh would then “have marred his market, by betraying the trust which perhaps they have put in him.”²⁷ Wilson apparently found the contract to watch Ralegh onerous, since on the 16th of September James agreed to allow Wilson’s wife to cover his absence.²⁸ James also gave “permission to Raleigh to write to him, if he will do it with a sincere desire to satisfy only His Majesty, without respect to other parties, and not play with him as he did with the Lords.”²⁹ The Lieutenant told Ralegh that he would be killed if he did not tell the truth in the letter this time, which Ralegh promised to do.³⁰ On the next day Wilson forwarded a list of Ralegh’s possessions to Naunton, including “chemical stuffs of all sorts,” and related that he had “wormed out of him that the French agent was brought to his house by La Chesnay.”³¹ Ostensibly private correspondence between Sir Walter and Lady Ralegh at this time suggests that Wilson had succeeded in gaining the Raleghs’ trust, but it would be naive to take these statements on face value, since the couple knew that their letters would be read.³² On the 18th of September Wilson forwarded Ralegh’s letter to James, calling Ralegh an “arch-hypocrite” but stating that in the letter Ralegh had “laid open all the secrets of his heart.”³³ (Wilson encountered some more unco-operative official behaviour on the 18th of September, composing – but apparently not sending – a complaint about “the insolent conduct of Greaves,” the Privy Council doorkeeper, who had refused to disturb a sitting of the Council with a message from Wilson.)³⁴ Ralegh’s statement to the King that Wilson had assured him of Royal mercy, should he confess, provoked official consternation, as evidenced by a flurry of correspondence on the 21st of September. Wilson wrote the King defensively that he had “not been so indiscreet as to promise Raleigh any favour, as on authority from His Majesty; but has merely used the hope of mercy as a bait, being the only one that could draw him on to confess anything” – a very fine distinction indeed, and not one which anyone could have expected the desperate prisoner to make.³⁵ In response to Naunton, who had written “that he thought Wilson would only hold

27 28 29 30 31 32 33 34 35

Cal. State Papers Dom. (1611 – 18), p. 571. Cal. State Papers Dom. (1611 – 18), p. 571. Cal. State Papers Dom. (1611 – 18), p. 571. Cal. State Papers Dom. (1611 – 18), p. 572. Cal. State Papers Dom. (1611 – 18), p. 572. Cal. State Papers Dom. (1611 – 18), p. 573. Cal. State Papers Dom. (1611 – 18), p. 573. Cal. State Papers Dom. (1611 – 18), p. 573. Cal. State Papers Dom. (1611 – 18), p. 574.

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out hopes to him, as was usual in examining prisoners,” Wilson stated that he “Never gave Raleigh any hopes of mercy as coming from the King, but only as from himself,” adding, in a manner which suggests a certain degree of worry, that he would “explain all” when he saw the King, and warning that the Tower Lieutenant was “jealous” of Wilson and would “try to raise prejudices against him.”³⁶ He continued transmitting transcripts of his conversations with Ralegh about the latter’s dealings with the French and hopes to make another expedition to Guyana.³⁷ Ralegh was reported to have commented that before his imprisonment in the Tower he had used to comb his hair for an hour a day, but that he would not bother to do so any more “till he knew whether the hangman should have his head.”³⁸ However, on the 23rd of September Sir Edward Harwood wrote to Carleton that Ralegh was struggling “hard for life”; the King was currently with the Queen, who, it was thought, would soften him towards Ralegh, although the recent French ambassador’s secretary had been arrested for conniving at Ralegh’s escape.³⁹ On the 24th Wilson persuaded Ralegh to send the King another letter: in it Ralegh defended himself against the Spanish charges, noted that the Spanish had killed “twenty-six unarmed English” during his excursion, highlighted his loyalty in returning home from an expedition which had exhausted his estate and killed his son (instead of selling up and moving abroad), and concluded by throwing “himself on His Majesty’s wisdom and goodness.”⁴⁰ Neither the information provided by Ralegh about the French visit nor his written communication satisfied James, who ordered Lady Ralegh and the family’s servants to be questioned, which Wilson promptly did on the 25th – while he also wrote to Naunton that he feared that Ralegh’s letter to James had contained “but mountebank’s stuff.”⁴¹ Wilson’s notes of his discussions with Ralegh on the 26 – 28th of September show Ralegh in a suddenly bullish mood, dismissive of piracy charges and threatening a political backlash against his execution “if the Spanish match held,” since “it would make Spain very unpopular” among his numerous “friends and allies.”⁴² He also rejected the idea of killing himself, expressing an intention to “die in the light,” and regretted having confessed to the French connection, probably – Wilson suspected – because he would thereby lose the Queen’s favour; in a separate development, she was reported to have “begged his life” of the King, as had the Bish-

36 37 38 39 40 41 42

Cal. Cal. Cal. Cal. Cal. Cal. Cal.

State State State State State State State

Papers Papers Papers Papers Papers Papers Papers

Dom. Dom. Dom. Dom. Dom. Dom. Dom.

(1611 – 18), (1611 – 18), (1611 – 18), (1611 – 18), (1611 – 18), (1611 – 18), (1611 – 18),

p. 575. p. 575. p. 575. p. 575 – 576. p. 576. p. 577. p. 577.

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op of Winchester as a deathbed favour and for the sake of Elizabeth I’s regard for Ralegh.⁴³ A letter by Wilson to the King on the 30th of September defends himself, again, from charges of indiscretion “in his dealings with the arch impostor,” and boastfully outlines the information that he, in contrast to the Commissioners, had succeeded in extracting from Ralegh: “First, his regret that, by confronting the French agent, he should lose the agent’s friends; second, his resolution to have taken the Spanish Plate fleet, if he could; third, his contradictions in talking of the Spanish match; fourth, his sometimes desiring to die, and sometimes urging that he could do the King better service than in his grave.”⁴⁴ He brought the enclosed “contradictions in the discourses of Raleigh” to James at the Privy Council Chamber, “which the Lords told me he redd unto them the next day, and apprehended.”⁴⁵ Wilson also included a sceptical note about Ralegh’s claimed scientific discoveries, including the invention of “copper furnaces” that could turn “salt water into fresh” and his theory that vitriol caused “all greenness on the earth.”⁴⁶ On the 3rd of October Harwood reported to Carleton that James was “much inclined to hang Raleigh, but it cannot handsomely be done, so he is likely to live out his days.”⁴⁷ The next day Wilson wrote to the King that the prisoner had become “reserved with him,” since Ralegh had “failed by bribes or flattery to bring him over to his designs” and refused to let himself be trapped into confessing a long-standing conspiracy with the French against the Spanish.⁴⁸ An exasperated Wilson now demanded to be released from watching Ralegh and instead be allowed to process the new accession of State Papers for “the last six or seven years” that had just been transferred to the SPO by Sir Thomas Lake: Wilson felt that he could better serve the King in this archival work than by staying with the “arch impostor.”⁴⁹ However, Naunton refused to give this missive to the King on the ground that the latter was overwhelmed with other business.⁵⁰ Also on the 4th of October, Wilson became alert at the mention of “writings” in intercepted correspondence between the Raleghs and wanted to “go to Lady Ra-

43 44 45 46 47 48 49 50

Cal. State Papers Dom. (1611 – 18), p. 577– 578. Cal. State Papers Dom. (1611 – 18), p. 579. Cal. State Papers Dom. (1611 – 18), p. 579. Cal. State Papers Dom. (1611 – 18), p. 579. Cal. State Papers Dom. (1611 – 18), p. 582. Cal. State Papers Dom. (1611 – 18), p. 583. Cal. State Papers Dom. (1611 – 18), p. 583. Cal. State Papers Dom. (1611 – 18), p. 583.

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leigh, and get the writings mentioned in it.”⁵¹ These appear to have been documents that Ralegh wanted relating to his South American expedition ship the Destiny, but Lady Ralegh had only a profit shares agreement left, all the other papers having been delivered to Secretary Calvert.⁵² Wilson’s motivation in hunting the documents is obscure. He may have been hoping for incriminating material, was already in the rapacious accessioning mood that came over him after Ralegh’s death, or both. Ralegh, it seems, was anxious to settle his financial affairs and pay out his ship share-holders correctly, and this motivated his request for the documents.⁵³ On the 15th of October Wilson was released from guarding Ralegh, who was to be put in the charge of the Tower Lieutenant while Lady Ralegh was to be set free altogether.⁵⁴ Wilson’s departure was interpreted as a sign that Ralegh was in very grave danger again.⁵⁵ Ralegh seems to have understood it in the same way; perhaps also on the 15th of October, he wrote his last wishes concerning his finances in a note which Wilson copied, and endorsed with the statement that Ralegh had written the note “in his owne hand” and given it to Wilson “for discharging of his conscience.”⁵⁶ Wilson’s removal may have been occasioned by the arrival of a letter from Spain to a Spanish diplomat in London on the 26th of September, ordering him to remind James of his promise to Gondomar to either punish Ralegh and his men or extradite them to Spain, as well as to sacrifice their possessions and, if these were not sufficient compensation, those of Ralegh’s sureties.⁵⁷ On the 24th of October Chamberlain relayed to Carleton the rumour that the King might pardon Ralegh if he turned witness on abuses in sales of lands and conveyancing of jewels that had taken place on James’s accession to the throne, and which would reflect badly on leading statesmen including Salisbury (Cecil) and Suffolk.⁵⁸ However, on the 22nd or 24th of October Ralegh was called to a secret enquiry and told that he would be executed on the old charge of high treason, despite the desperate intercession of the Queen.⁵⁹ Jardine suggests that the lack of an of-

51 Cal. State Papers Dom. (1611 – 18), p. 583. The consistent lack of privacy that the Raleghs suffered was not an anomaly: in the 1615 case of Carr in the Overbury affair, Carr had been refused writing materials to set down stipulations concerning “his private affairs,” and he rejected the offer that “the Lieutenant of the Tower should write for him.” Cal. State Papers Dom. (1611 – 18), p. 332. 52 Cal. State Papers Dom. (1611 – 18), p. 583. 53 Cal. State Papers Dom. (1611 – 18), p. 583. 54 Cal. State Papers Dom. (1611 – 18), p. 585. 55 Cal. State Papers Dom. (1611 – 18), p. 587. 56 Cal. State Papers Dom. (1611 – 18), p. 585. 57 Cal. State Papers Dom. (1611 – 18), p. 577. 58 Cal. State Papers Dom. (1611 – 18), p. 586. 59 Jardine, p. 361; Cal. State Papers Dom. (1611 – 18), p. 588.

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ficial record of these proceedings is attributable to the Crown’s fear “of popular feeling.”⁶⁰ None of Wilson’s attempts to extract evidence for the new charges had worked. Even when the warrant for Ralegh’s execution was drawn up for the King’s signature on the 28th of October, there seems to have been lingering doubt as to whether it would actually be carried out – this is suggested by Naunton’s remark to Carleton that the warrant “had better not be talked about, as it is ‘de futuro contingente.’”⁶¹ On the same day Ralegh was taken to the Court of King’s Bench on a writ of scire facias to present his own case (an apparent concession to procedural justice that, given the wider diplomatic background, was likely disingenuous), but his argument against the carrying-out of a sentence that had been so long suspended did not succeed, and from there he was taken to the Gatehouse to await execution next morning.⁶² Ralegh, whose mood became manically merry as his end drew near (with more black hairdressing-related humour) famously turned his execution on the 29th of October into a piece of subversive political theatre with his courageous, self-exonerating speech from the scaffold.⁶³ (Ralegh thanked God for being brought out of darkness to die in the light – which, of course, echoes his earlier conversation about suicide with Wilson.)⁶⁴ There followed a long controversy, as the London masses seethed and sorrowed, which quickly became a national scandal that endures today. The day afterwards the city was “full of the worthy end of Sir Walter Raleigh,” his final speech having convinced everyone of his innocence of all charges, whether the original or the new.⁶⁵ (Relations with the French were also strained, and the English government directed James’s ambassador to show them the last part of Ralegh’s speech describing his dealings with their agent, which they had disowned.)⁶⁶ By the 21st of November the clamour in London had increased: Chamberlain reported to Carleton that “The town is full of Sir Walter Raleigh; some ballads are suppressed; a declaration is preparing, contradicting many of his last assertions, but it will not be believed, unless well proved; some verses on him are ascribed to the King and Sec. Naunton.”⁶⁷ The French were

60 Jardine, p. 361. 61 Cal. State Papers Dom. (1611 – 18), p. 587. 62 Cal. State Papers Dom. (1611 – 18), p. 588. 63 Cal. State Papers Dom. (1611 – 18), p. 591; Green, “Walter Raleigh’s execution and its afterlife through archives.” 64 Green. 65 Cal. State Papers Dom. (1611 – 18), p. 588. 66 Cal. State Papers Dom. (1611 – 18), p. 588. 67 Cal. State Papers Dom. (1611 – 18), p. 597.

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thought unlikely to co-operate on sharing intelligence in future.⁶⁸ Ralegh’s triumphant departure from this world created dissension at court; James is reported to have said to Ralegh’s accuser Lewis Stukeley, when he protested the truth of his allegations, “I have done amiss; his blood be upon thy head.”⁶⁹ However, James succeeded in his objective of pleasing Spain, the Spanish King expressing delight to the English ambassador in December at the news of Ralegh’s execution and intending to “write and thank the King for it.”⁷⁰ On the 2nd of November, while Ralegh’s ship and its contents were being received and inventoried in Plymouth, Wilson – who had spotted a prime accessioning opportunity – lobbied James to have some of Ralegh’s manuscripts transferred to the SPO.⁷¹ These included Ralegh’s handwritten “treatise on the art of war,” “a great MS. book in parchment, near a yard square, containing the descriptions of all countries in the world” as well as “an account of all the seaports in the world,” some hand-drawn “sea charts” which Ralegh had left behind him in the Tower and three West Indian sea charts which, Wilson surmised, Ralegh would not have sold for less than £300, and which had already been scooped up by Calvert.⁷² Wilson also suggested the seizure of Ralegh’s “very fair books” (300 – 400 volumes, including works of history), to be catalogued and added to James’s library.⁷³ (Here Wilson appears to be operating with a clear distinction between unique manuscripts/archive and books/library). On the 4th of November James obliged Wilson with a warrant to seize Ralegh’s books – these, however, were to be left in the Tower – mathematical instruments and globes (to be sent to the King himself ), since these possessions “could be of small use to his surviving wife.”⁷⁴ By the 7th of November Wilson had already catalogued all the books, by James’s order, and seized the navigational and mathematical instrument, at least some of which were ultimately given to the Navy.⁷⁵ Wilson’s aggressiveness caused great distress to Ralegh’s widow. Apparently on the 8th of November, she begged their mutual acquaintance Lady Carew to use her influence with Wilson to make him “cease the pursuit of her husband’s library, instruments, &c; which were all he had to leave to his poor child,” wherewith, she

68 69 70 71 72 73 74 75

Cal. State Papers Dom. (1611 – 18), p. 597. Cal. State Papers Dom. (1611 – 18), p. 591. Cal. State Papers Dom. (1611 – 18), p. 603. Cal. State Papers Dom. (1611 – 18), p. 589 – 590; Sainsbury, p. 230. Cal. State Papers Dom. (1611 – 18), p. 589 – 590; Sainsbury, p. 230. Cal. State Papers Dom. (1611 – 18), p. 589 – 590; Sainsbury, p. 230. Cal. State Papers Dom. (1611 – 18), p. 590. Cal. State Papers Dom. (1611 – 18), p. 591; Pollard.

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hoped, Ralegh junior would dedicate himself to study.⁷⁶ She related that “Sir Thomas Wilson hath already fetched away all his mathematical instruments, one of which cost 100 l when it was made. I was promised them all again, but I have not received one back.”⁷⁷ Lady Ralegh accepted that if there were some books among the collection that the King could not acquire elsewhere, then of course he should have them, but she had heard “that Byll, the bookseller, hath the very same.”⁷⁸ Ralegh – a polymathic Renaissance man – was an avid antiquarian scholar and “a purchaser of ancient records and rare charts.”⁷⁹ This reputation had probably alerted Wilson to the importance of his manuscripts. Of course, Ralegh’s manuscripts had no business in the SPO at all, given its official accessioning mandate: Wilson seems to have regarded them almost as trophies for the Crown, given the alacrity with which he acted to seize them from Ralegh’s widow. James, on the other hand, appears to have been most interested in the instruments. The State Papers contain Wilson’s directions on how to use “an equinoctial dial,” apparently made at James’s request and likely intended to provide help in using Ralegh’s instrument or a copy of it.⁸⁰ James apparently forgot about Ralegh’s library; in November 1619 Wilson asked for “a final decision on what is to be done about Sir Walter Raleigh’s books.”⁸¹ (When he billed James for cataloguing the library, he described this as having been done by James’s “express command” and noted that the collection actually comprised 600 – 700 volumes.)⁸² Wilson later complained that the Crown never paid him for the Ralegh espionage contract. In his bill to Charles I for outstanding services rendered, amongst the prosaic items involved in maintaining an archive – the daily fires, the new shelving, and the chimney for the vaults – appears the following entry (like the rest of the bill, repeated from the previous invoice): “Item I was commanded by his late Ma(jes)tie to goe lie att the Tower and to take the charge of s(i)r Walter Rawly, where I remayned keeping him close prisoner tenn weekes for which I was promised by ye Lords Commissioners to have 5 pounds a weeke which cometh to 50 £.”⁸³ This is followed by a passage which seems to refer to other espionage activities that Wilson performed for the Crown while officially Keeper of the State Paper Of-

76 77 78 79 80 81 82 83

Cal. State Papers Dom. (1611 – 18), p. 592; Jardine, p. 496. Jardine, p. 496. Jardine, p. 496. Tytler, p. 371. Ailes and Mair; Cal. State Papers Dom. (1611 – 18), p. 610. Cal. State Papers Dom. (1619 – 23), p. 100. Sainsbury, p. 232. SP 45/20 f. 102 v.

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fice, apparently on an unremunerated basis: “Many other services I have been commanded by his late Ma(jes)tie and the Lords for which I have benn forced to hiere coaches and to be at great charges where of for that there was noe certaine promis made me I can recken nor require nothinge.”⁸⁴ One such ‘service’ was probably the incident connected with the Ralegh affair in which, on the 7th of September 1618, Wilson received orders from Naunton containing the description “of a Frenchman, named Cavane or Heern, who forced his way to the very table end, to see the King at dinner at Windsor, and is a very suspicious character.”⁸⁵ Wilson was to seize the Frenchman and his documents, interrogate “him as to his business, &c., and whether he is in intelligence with Sir Walter or Lady Raleigh” and have him imprisoned “if faulty” – otherwise there was to be “as little noise […] made about it as possible.”⁸⁶ Later, Wilson submitted a bill for providing a translation of foreign-language intelligence surrounding the Ralegh affair: “a long relation of the business between Sir Walter Ralegh, Sir Lewis Stukely, and the Frenchman Mannouray.”⁸⁷

84 85 86 87

SP 45/20 f 102 v. Cal. State Papers Dom. (1611 – 18), p. 568. Cal. State Papers Dom. (1611 – 18), p. 568. Sainsbury, p. 232.

28 The State Paper Office after Wilson Following Wilson’s death in 1629, Charles I appointed Ambrose Randolph and William Boswell as joint Keepers by letters patent on the 21st of November.¹ Again, however, Randolph seems to have been the sleeping partner, with Boswell de facto carrying out the office’s duties.² It is worth noting that the salary for Randolph and Boswell was “Eight shillings and nine pence halfpenny farthing” per diem, which, in Hall’s calculation, came to £160 per annum between them.³ Hall states that the salary remained stable from this point up until the beginning of the nineteenth century.⁴ However, he seems to have overlooked the later patent to Joseph Williamson of 1661 in which Charles II notes that Thomas Raymond – Randolph and Boswell’s successor – had received a stipend of £100 a year, but that Williamson was to receive the whole of the £160 himself.⁵ Despite the increase in pay, Boswell and Randolph had money troubles of their own, as shown by their January 1641 petition to the King via Sir Henry Vane – also Treasurer of the Royal Household – to recover their expenses for the “Inck, Paper & Vellum” with which “many loose & scattered Papers” had been compiled “into Bookes,” as well as for the regular fires in the SPO’s rooms to “keep the sayd Bookes & Papers from spoiling,” for all of which they have had “noe allowance.”⁶ They refer to the sum of £30 a year which, they maintain, had always been paid to Thomas Wilson by Privy Seal for these expenses.⁷ Here, however, they seem to have confused Wilson’s base salary as Keeper with the reimbursements for expenses, which, as shown by his own bitter complaints, he had not consistently received. In any case, the amount now owing to Boswell and Randolph was a total of £300 (£30 expenses for the past ten years), which would be a “full satisfaction of their expenses aforesaid.”⁸ An interesting document (though undated and unsigned) survives in the State Papers from the Restoration concerning Boswell’s own intellectual and research interests. Boswell had corresponded with the non-conformist parson Matthew

1 SP 45/20 f 191 – 193 r and v. 2 Stewart, p. 250 – 251. 3 SP 45/20 f 192 v; Hall, p. 38 fn. 1. 4 Hall, p. 38 fn. 1. 5 SP 45/20 f 128 v, 129 r. Further complication is created by Edwards’ assertion that Raymond’s beginning salary was £80, later raised to £160. However, Edwards seems to be generally muddled about the circumstances of Raymond’s tenure. Edwards, Libraries, p. 188. 6 SP 45/20 f 115 r. 7 SP 45/20 f 115 r. 8 SP 45/20 f 115 r. https://doi.org/10.1515/9783110791464-030

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Mead about theology.⁹ Astonishingly, and completely outside the access regime by warrant examined later, Boswell seems to have suggested including certain letters from the SPO “(being of no private concernment)” in Mead’s published compilation of correspondence, as this “might be singularly usefull to all lovers of learning.”¹⁰ Boswell apparently took these documents with him to The Hague during a diplomatic appointment and on his death they could not be found, his widow informing an enquirer that they had all been returned to the King.¹¹ At the time the letters were thought to be in the possession of either Boswell’s diplomatic successor at The Hague or the Meads (since Mead had been “very exact & methodicall in binding up together such papers”).¹² Indeed, Boswell spent significant time abroad on diplomatic missions while Keeper of the SPO.¹³ This is yet another illustration of the nexus between the SPO and intelligence gathering. At some point Boswell claimed to have discovered an alleged Jesuitical plot “to raise up Scotland and overthrow Charles I,” information communicated to him by an agent called Andreas ab Habernfeld; Boswell forwarded the intelligence “to Archbishop Laud, who immediately took steps to thwart the conspiracy,” and Boswell was accordingly “much commended by the king.”¹⁴ In his capacity as ambassador Boswell appears to have lent further archival materials to third parties, as a warrant from the Restoration requiring the return of an SPO volume from private possession in The Hague, discussed later, makes clear. As for accessioning, following the Wilson era records seizures for the SPO seem to have become more overtly political and intimately connected to the struggle between King and Parliament, consistent with the general rise in the political temperature. Charles set the tone by instantly detailing Boswell (as already noted) to catalogue the Cotton collection, the first seizure and processing of private manuscript collections associated with the Parliamentary interest in which Boswell would be involved.¹⁵ It has previously been observed that Boswell, Privy Council Clerk in Extraordinary and knighted in 1633, enjoyed a more central position in government than Wilson, which may explain his comparative success in accessioning: for example, his uncomplicated 1632 seizure of the deceased Secretary of State

9 SP 45/21 f 178 r; Sainsbury, p. 251. 10 SP 45/21 f 178 r. 11 SP 45/21 f 178 r; Sainsbury, p. 251. 12 SP 45/21 f 178 r. 13 Thrush, “The Government and its Records, 1603 – 1640.” 14 Grove, “Boswell, William.” 15 Stewart, p. 250 – 251; Sainsbury, p. 240.

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Dudley Carleton’s papers.¹⁶ Similarly, in 1633 the papers of John Wright, “the lately deceased Clerk of the Commons,” were seized for the SPO by order of Secretary of State Windebank.¹⁷ Given the previous uproar over the Petition of Right, it may be that Charles was exploiting Parliament’s absence during the period of the Personal Rule to secure Commons records that he could deploy in future struggles. (The threat of such seizures by the Crown, in addition to the repeated assaults on its freedom of speech, may also illuminate Parliament’s motivation throughout the first half of the seventeenth century to establish and maintain its own archives.) The SPO papers of the post-Wilson era contain the warrant from the 4th of December 1634 by Secretary of State Windebank to Edward Nicholas – not an SPO employee but described in the warrant as a Clerk of the Privy Council in Extraordinary – under which the Crown again seized Coke’s manuscripts.¹⁸ Windebank refers to the books, papers and writings in the Inner Temple “belonging to S(i)r Edward Coke […] lately deceased.”¹⁹ This is the most overtly political warrant for a records seizure to date: these documents “shalbee forthw(i)th perused, and […] such of them as may bee either usefull for or disadvantagious to His Ma(jes)tie’s Service or as may in any wise concerne His Ma(jes)tie shalbee made stay of and detayned till his Ma(jes)tie’s pleasure herein shalbee further knowne.”²⁰ The wording makes it sound oddly as if the records themselves were being arrested, imprisoned, and interrogated. The warrant goes on: “to this purpose ye doores of the said chamber and study are now sealede up by His Ma(jes)tie’s commands. These are to require and authorise you to send for ye Keyes of S(i)r Edward Cokes said chamber and study in ye Inner Temple, and having receavede ye same, thento breake open ye Seales upon ye doores thereof, and to search and peruse all such Bookes, Writings Papers and Notes as you shall find there, and such of them as you shall conceave in any sort to concerne His Ma(jes)ties Service or as may in any wise bee behoofull [beneficial] or prejudiciall to ye Same, you are to put them up into a Trunck or Truncks and keepe ye same lockede & sealede up till further order, the key thereof to remaine in yo(ur) custody.”²¹ Clearly this was a highly sensitive, targeted intelligence-gathering operation: hence the deployment of a Privy Council clerk in whom Charles had particular trust. (Nicholas, Secretary of State from 1641, would be one of Charles’s key advi-

16 17 18 19 20 21

Thrush, “The Government and its Records, 1603 – 1640”; Ailes and Mair. Thrush, “The Government and its Records, 1603 – 1640”; Sainsbury, p. 240. SP 45/20 f 195 r. SP 45/20 f 195 r. SP 45/20 f 195 r. SP 45/20 f 195 r.

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sors during the Civil War.)²² This is also suggested by the trunk, in which the dangerous manuscripts – identified by Nicholas (as previously described) as Coke’s exegesis of Magna Carta and further ancient precedents – could first be sealed and isolated, almost as if Charles were worried about contagion.²³ The threatening nature of these materials was further underscored by Nicholas’s decision to lock the trunk containing the documents inside another trunk.²⁴ This created an extra layer of security, since at least two different keys would have been necessary to access the papers. It is interesting that Nicholas clearly knew enough about Charles’s concerns to search for the commentary on Magna Carta, though it is also possible that Windebank communicated additional instructions to him orally. Thrush notes that as a result of this warrant, the SPO ultimately acquired over “50 manuscript volumes” that had belonged to Coke.²⁵ With this new seizure of 1634, it therefore appears that the SPO additionally acquired the manuscripts that had apparently been restored to Coke after the previous seizure of 1621 (or 1622). It seems likely that after 1634 (at the latest) his working papers from the treason cases previously mentioned were held by the SPO. However, the official accessioning procedure itself, like the Crown’s recordkeeping apparatus generally, could be chaotic. Sir John Coke (previously met with as Commons secretary) was Secretary of State until 1640, at which point, according to Thrush, he was “forced into retirement,” selected to take the blame for the unsatisfactory outcome of the war with Scotland because, as Lord Clarendon later recalled, he was nearly eighty and “nobody cared” about him.²⁶ Thrush suggests that he “took the bulk of his correspondence on domestic affairs home with him to Derbyshire” and that these papers ultimately came into the British Library.²⁷ This remark is complicated by a very angry letter from Coke of the 19th of November 1640 that survives in the SPO’s papers, and illuminates both the accessioning in his own case and the Crown’s records system more generally. Coke here replies to a letter which, had it not been delivered by a footman, could very easily have gone astray due to the insulting manner in which it was addressed: “you were not pleased to honor mee in your superscription w(ith) the title of one of His M(ajes)tie’s privie councell: w(hi)ch His Ma(jes)tie told mee, hee intended not to take from mee.”²⁸ However, what is “even more strange to

22 23 24 25 26 27 28

Shaw, “Nicholas, Edward.” Garnett, p. 59. Garnett, p. 59. Thrush, “The Government and its Records, 1603 – 1640.” Thrush, “The Government and its Records, 1603 – 1640”; Firth, “Coke, John.” Thrush, “The Government and its Records, 1603 – 1640.” SP 45/20 f 110 r.

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mee is, That you have not acquainted His M(ajes)tie, that al the papers I had concerning His M(ajes)tie’s affairs were by Mr Wecherline & Mr Poole my late secretaries delivered to S(i)r Henrie Vane and your self who in your own persons went to my chamber, & tooke possession of them: and after either of you had taken into your own custodie, what you thought fit, caused the rest to bee put into the paper office: as my said secretaries informed mee. And I thinck a more exact deliverie & discharge was not made by anie Secretarie in our age.”²⁹ It appears that Coke’s records on Ireland were specifically at issue. “Concerning the Irish letters & papers in particular: they were delivered to your self who tould them you were to bee charged w(i)th them. And this I beseech you to assure His M(ajes)tie, that I reserved not anie in my own hande concerning the Lord Mount-Norris; or other publique or private business. I ever tooke my Secretaries, to be honest & careful men: and doubt not, they wil testifie the truth of that they did.”³⁰ Coke goes on resentfully that the accessioning was so rushed that his servants had no time to “dygest al that multitude of papers: w(hi)ch by reason of a former confused remove from my former chamber, I could not order as I desired. But w(i)thal it may wel bee that such letters as you mention concerning the Lord Mount-Norris, & the parliament in Ireland can not be found amongst the papers w(hi)ch were in my hands. For I kept copies & records, only of such warrants & letters w(hi)ch were drawn by my self, or by my direction. But of those w(hi)ch cam readie drawn fro Irland & w(hi)ch were recomended to mee by the Lieutenant & comed only to be p(r)e(s)ented to His M(ajes)tie for his signature, & returned w(i)th speed. I could not keep the originals in my hands: & know that copies were reserved in the offices where they were drawn: & therfor I did not charge my self therw(i)th: but as soone as His M(ajes)tie had signed them, I sent them into Ireland, by the faithful care of Mr Rushton, to whom the Lord Lieutenant had given order to that purpose. W(i(th) this my answer I beseech you to acquaint his M(ajes)tie: as from his most humble & faithful servant who hath both obediently submitted to his pleasure in al things; & hath as truly and honestly delivered up al his papers as ever Secretaries did.”³¹ Coke concludes that he intends to spend his retirement in “daily prayers for His M(ajes)tie: & in those exercises w(hi)ch are proper for my age,” and would be obliged to be left “in peace.”³² It is no longer possible to reconstruct what exactly happened with the papers, but it may be that Coke had a too narrow understanding of which papers concerned the King’s affairs. The letter suggests that routine SPO accessioning itself 29 30 31 32

SP SP SP SP

45/20 f 110 r. 45/20 f 110 r and v. 45/20 fs 110 v and 111 r. 45/20 f 111 r.

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could be disorganised, and also used as a weapon of intrigue and chicanery against former Crown servants who were out of favour: given the political circumstances of the aged Coke’s forced retirement, there is an uncomfortable similarity between the high-handed manner of this accessioning and the customary seizures of papers belonging to disgraced Crown servants. Coke is essentially accusing the letter’s recipient of having lied to Charles about the fact that he had taken charge of Coke’s papers. It is noteworthy that the letter’s unnamed recipient and the Secretary of State Sir Henry Vane took some of these into their own custody, perhaps because they were needed for current business, and sent only what was left to the SPO. Sainsbury states that the following year some of Coke’s papers were recovered for the SPO under a warrant issued to Vane by Charles I.³³ Boswell died in 1649, leaving Ambrose Randolph as the surviving Keeper.³⁴ In a patent dated the 20th of July 1640, Charles I had given Thomas Raymond the reversion of the Keepership, which he would receive “ymediatly from & after the deathe surrender or other voydance of” Randall/Randolph and Boswell.³⁵ A letter (probably from the 5th of August 1655) from Raymond to Randolph suggests that during the Interregnum Raymond’s promised reversion was called into question.³⁶ The fact “that you desire and are readie to endeavour (soe farre forth as may stande with your necessarie interest) to further & ascertaine my right to succede you in the office is of soe great an honour & consolation to me that I shall with much more cherefulnesse undergoe whatever adverse snaisse shall befall me in the same.”³⁷ Raymond also refers to “my fate […] in reference to my right of succession (in w[hi]ch may be involved a large share of the good or bad fortunes of me & my numerous little people).”³⁸ This suggests that Raymond was already working in the SPO in some way and that the continued employment of some SPO clerks (“little people”) hinged on his fate as their patron.

33 Sainsbury, p. 214. 34 Grove. Edwards states that Raymond entered into the grant in 1649, but this cannot be right since it would have required both Boswell and Randolph to be dead – and the latter was clearly still alive in 1655. Edwards, Libraries, p. 189. 35 SP 45/20 fs. 215 – 217. 36 SP 45/20 f 120 r and v. 37 SP 45/20 f 120 r. 38 SP 45/20 f 120 r.

29 The Civil War and Interregnum As can be imagined, under Civil War conditions the accessioning situation was far from ideal. When Charles I and his retinue left London, first for York and then for Oxford, his courtiers brought their State Papers along “or deposited them in places not within the enemy’s quarters,” with the result that “Few found their way into the State Paper Office, except those which were captured on the field of battle, or came into possession of the Parliament by some of the other chances of a state of warfare.”¹ The Keeper of the State Paper Office during the Restoration, Sir Joseph Williamson, later related that Sir Edward Nicholas had told him that Secretary of State Windebanke’s papers were given to him on the former’s retirement – no doubt because Nicholas succeeded Windebanke as Secretary of State.² However, when Nicholas went “to the King, from London” during the war, Windebanke’s and all of Nicholas’s papers were “seized by the rebels, and disposed of, he knew not how.”³ Nicholas himself later deliberately burnt at Oxford “the papers, which he had subsequently collected, while the King was in the North, and till the surrender of Oxford […] through fear that the rebels intended, notwithstanding the Articles of Oxford, to seize him, and his papers.”⁴ At Charles’s request, made before the King left for Scotland, Nicholas simultaneously burnt “a cabinet of the King’s, full of papers of a very secret nature,” which Charles was concerned would otherwise come “into the rebels’ hands.”⁵ Though Nicholas, by his own account, was careful not to look at any of the papers in accordance with Charles’s instructions (the King “thanked him for that justice”), he had the impression that the cabinet contained “all the Queen’s letters to the King, and things of a very mysterious nature.”⁶ While Wilson had been concerned with recovering State Papers loaned to government officers and never returned, the depredations of the Interregnum were on an entirely new scale. The SPO itself suffered “spoliation,” with large quantities of records loaned out by Ambrose Randolph to Revolutionary figures such as John Bradshaw, “Secretary Thurloe, Scobell the Clerk of the Parliaments, and Milton the Secretary for the Latin tongue,” hardly any of which were returned; this, Charles II noted in his 1661 warrant to Thomas Raymond to recover them, was “to the prej-

1 2 3 4 5 6

Cal. State Papers Dom. (1625 – 6), p. vi-vii. Records Commission, Vol. I, p. xvii. Records Commission, Vol. I, p. xvii. Records Commission, Vol. I, p. xvii. Records Commission, Vol. I, p. xvii-xviii. Records Commission, Vol. I, p. xviii.

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udice of our weighty affairs.”⁷ (Randolph had never been an enthusiastic archiveskeeper, and perhaps he hoped, by giving away the SPO’s holdings, to rid himself of the responsibility for them.) Edwards, who clearly allowed his own political inclinations to influence his academic judgement, indignantly rejects the claim that “the Commonwealth men robbed the Paper Office,” pointing to the admirable creation, accessioning, and ordering of the Commonwealth papers themselves as counter-evidence – and thereby failing to consider the possibilities that the records of the old regime were plundered, or that the Commonwealth papers in the SPO might have been recovered and organised by later, Restoration-era archives-keepers.⁸ (Edwards also draws a contrast between the no-nonsense Cromwell’s insistence on English and plain legible script, and the frivolous Charles II’s return to “barbarous Latin and more barbarous Court-Hand.”)⁹ Hall describes “a wholesale concealment and even destruction of Political papers […] added to the existing system of ‘embezzlement.’”¹⁰ A spectacular Interregnum example of the latter is provided by the political career of the poet John Milton, during whose tenure from 1649 – 60 as Secretary for Foreign Tongues to the Commonwealth Council of State numerous Privy Council papers and the registers to them vanished from the State Paper Office.¹¹ Milton’s State Papers were acquired upon his death by his assistant Daniel Skinner, and some of these were published in murky circumstances in Brussels and Amsterdam.¹² Conversely, some of Milton’s private papers made their way into the State Paper Office: his theological work De Doctrina Christina was discovered there, to public sensation, in 1823.¹³ A mysterious accession list from 1647 suggests that the SPO was engaged in intensive espionage collection during this turbulent period. Some of the accessions seem to have come from Royal servants, as was normal, but there are a number of otherwise inexplicable items, probably intercepted by the Crown’s agents. For 1644, these include “Letters in Cypher,” and four letters to “Mr Speaker” (probably of the House of Commons) from a “Devereux.”¹⁴ This was likely Robert Devereux,

7 Records Commission, Vol. I, p. xviii; SPO 45/21 f 127 v; Sainsbury, p. 242 – 243. 8 Edwards, Libraries, p. 188. Similar mistakes are made by Thomas and Hall when they fail to consider the possibility that the post-Interregnum SPO staff were responsible for recovering and organising large quantities of Revolutionary government papers. Thomas, A History of the State Paper Office, p. 8; Hall, p. 88. 9 Edwards, Libraries, p. 188. 10 Hall, p. 88; see also Thomas, A History of the State Paper Office, p. 8. 11 Hallam, “Nine Centuries,” p. 37; Luxon, “Introduction to John Milton’s A Treatise of Civil Power.” 12 Campbell and Corns, John Milton: Life, Work, and Thought, online edition, no page number available. 13 Campbell and Corns. 14 SP 45/20 f 117 r.

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third Earl of Essex and General of the Parliamentary Army.¹⁵ The “five letters sent by Alexander Popham” in 1645 were probably also intercepted.¹⁶ Popham was one of the Parliamentarians who survived Pride’s Purge and would later serve on Cromwell’s Council of State.¹⁷ The “Some 9. letters & bills sent by Mr Strikland 1644” is likely a reference to Walter Strickland, Parliament’s ambassador to the Netherlands between 1642 and 1650.¹⁸ In the context of the conflicts with Scotland, the item “Some 30. letters most from forrin parts to the North” from 1644 may be significant.¹⁹ The other items on the list are vague and confused (“About 29. letters of several persons”) and suggest that the Royalist interest was intercepting correspondence in a fairly scattershot way and dumping it in the SPO.²⁰ The administrative role played by the SPO during the Civil War and Interregnum is unclear, and made more mysterious by an undated and unsigned note amongst the later Restoration papers that “The office [apparently a reference to the SPO] was called ye Court of Examinations and Indempnitye papers upon tryalls between ye King and Parliaments party aboundance of letters intercepted going to and coming from Oxford in ye time of ye Ware as also from beyond ye Seas Certificates of severall people that tooke ye Covenant, and informations against others that did not and many impeachments against persons that did adhere to ye late King and our present Soveraigne. and papers of Dezimation of severall persons.”²¹ The missing punctuation makes this passage difficult to interpret. However, it does appear to indicate that the SPO’s holdings were utilised in the legal disputes between Crown and Parliament – though how exactly is ambiguous. Also, it seems that the SPO was at some point turned against the Royalist side as a repository for war intelligence (especially correspondence to and from Charles’s military headquarters in Oxford). The mention of the ‘Covenant’ is probably a reference to the 1643 Vow and Covenant made by members of Parliament to advance the war with the King, rather than the Solemn League and Covenant between the Scottish and English Parliaments.²² While no conclusions can be drawn from a general absence of paperwork concerning accessioning by the new government during the Interregnum, the accessioning that is recorded seems to have been erratic. A warrant from the 4th of Feb-

15 16 17 18 19 20 21 22

Gardiner, “Devereux, Robert.” SP 45/20 f 117 r. Helms and Cassidy, “Popham, Alexander.” Firth, “Strickland, Walter.” SP 45/20 f 117 r. SP 45/20 f 117 r. SP 45/21 f 181 r; Sainsbury, p. 251. Author unknown, “The Poet MP and the 1643 Plot against Parliament.”

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ruary 1650 is extremely faintly written but seems to be endorsed “Mr Willingham to deliver his Papers to Mr Milton.”²³ This warrant, from the executive Council of State and signed by its President, the regicide John Bradshaw, suggests an intention to democratise access to the State Papers: “Wee are informed that there are severall Letrs and other papers of Publique concernement that are in your hands, which wee have thought fitt should be brought into ye paper office at Whitehall both for the safe keeping of them and that they might be ready for publique use upon all ocasions.”²⁴ (Emphasis added.) John Milton has been “appointed to receive the same and see them safely and orderly disposed in the said paper office.”²⁵ Thus the Cromwellian administration seems to have dispensed with the use warrant regime and was envisioning something like an open-access policy for the SPO: a general concern for transparency on the part of the Revolutionary government is suggested by the fact “that, amid all the turbulence of that era, the transactions of the State were never more regularly recorded.”²⁶ Another instance of accessioning has been preserved from the Interregnum, this time “by warrant from ye Councell” from the 24th of April 1656.²⁷ The note reads “Received […] a Bagg sealed containing divers bookes and papers seized in ye house of Mr Dudley Avery.”²⁸ The extremely detailed list, made on the 6th of May 1656, contains many financial papers (such as invoices and cash books) belonging to this individual.²⁹ The fact that the papers were apparently delivered to the SPO by “Mr Auditor Beale” suggests that Avery’s accounts had been investigated for some official purpose.³⁰

23 SP 45/20 f 119 v. 24 SP 45/20 f 119 r; Sainsbury, p. 242. 25 SP 45/20 f 119 r. 26 Records Commission, Vol. I, p. xviii. 27 SP 45/20 f 121 r. 28 SP 45/20 f 121 r. The handwriting of the surname is uncertain, but ‘Avery’ is the interpretation provided by Sainsbury, p. 214, 242. 29 SP 45/20 fs 122 – 123. 30 SP 45/20 f 122; Sainsbury, p. 242.

30 The Restoration, records seizures from Revolutionaries, and cataloguing According to Thomas Raymond’s 1661 petition for payment of salary arrears, he had bought Ambrose Randolph out of the latter’s interest in the SPO more than a year and a half previously (so in about 1659) at great personal expense; Randolph died in 1660.¹ Thus, despite the regime change, there was considerable bureaucratic continuity at the SPO, with Raymond as the sole Keeper at the Restoration – Charles II’s grant of the Keepership’s reversion to Sir Joseph Williamson in 1661 only came into effect once Raymond had voluntarily surrendered the post in November of that year.² However, Raymond still worked in the SPO after this point, by his own account. In 1663 he wrote a one-page memoir about Wilson’s tenure (including the confusion caused by the removal of records in blankets), the unwillingness of Secretaries of State and Privy Councillors to return records, and “ye disorders & losses in the Office produced by the late troubles of near 20 yeares continuance,” particularly the Interregnum abstractions of records by “Bradshaw, Thurloe, Milton etc w(hi)ch I am now endeavouring to recover.”³ He seems motivated by a wish to explain his difficulty in retrieving and cataloguing the SPO’s holdings: “All which being considered it will not seeme strange that noe better acc(oun)t can now be given of ye papers menconed in this Inventorie, wherein notwithstanding the Office is now wholly silent, for I have produced in a short tyme (though with some paines) the particulars following and doubt not in my proceedings with ye due ordering of those excellent papers (which is my daily Worke) to meet with many more.”⁴ It is not clear how much practical support Raymond enjoyed in these tasks from Williamson. The latter held an increasing number of other offices simultaneously with the Keepership of the SPO, which he retained until his death in 1701.⁵ He was Undersecretary of State from 1660 – 74 and then Secretary of State from 1674 – 79, as well as, at various times, postmaster general, commissioner of lotteries, and ambassador at The Hague.⁶ The Records Commissioners suggest that while Williamson was industrious in his early years at the SPO, he neglected the

1 2 3 4 5 6

Sainsbury, p. 243, 252. SP 45/20 f 128 v; Sainsbury, p. 243. SP 45/20 f 136 r. SP 45/20 f 136 r. Handley, “Williamson, Sir Joseph.” Handley.

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office in the later part of the century, as testified bitterly by his successor John Tucker.⁷ It is possible that Tucker exaggerated the extent of Williamson’s omissions in order to heighten awareness of his own staffing needs, stating in 1705 that nobody had “been employed in the office for above twenty years,” which conflicts with the dates of later working documents left by Williamson.⁸ Tucker also made the incorrect statement that Williamson had not left a single catalogue, although cataloguing was in fact one of Williamson’s great obsessions (examined later).⁹ However, it is true that the SPO was in a miserable physical condition by the time of the first Parliamentary enquiry in the early eighteenth century.¹⁰ By contrast, Popper portrays the SPO under Williamson as an important cog in Williamson’s “massive information network, including coordinating spy networks, surveying the posts, and running a newspaper.”¹¹ (This last is a reference to the Gazette.) In Popper’s interpretation, Williamson’s successful exploitation of this information super-apparatus explained his rapid rise to ever-higher office, including his Presidency “of the Royal Society.”¹² During his reign Charles II granted a number of warrants aimed at recovering misappropriated State Papers: Williamson “faced the daunting task of collecting materials that had been produced or had disappeared during the Interregnum.”¹³ A major official focus was on obtaining the documentation of the Revolutionary government itself for the SPO.¹⁴ Here Williamson was gimlet-eyed, demonstrating a wide-ranging political awareness in his lists of papers that he knew to be missing from the SPO, and relentless in ferreting out records in the possession of Revolu7 Records Commission, Vol. I, p. xviii; Riordan, “The King’s Library of Manuscripts,” p. 188. 8 Sainsbury, p. 253. 9 Sainsbury, p. 253. 10 Records Commission, Vol. I, p. xviii. 11 Popper, “Archives and the Boundaries of Early Modern Science,” p. 91. 12 Popper, “Archives and the Boundaries of Early Modern Science,” p. 91 – 92. Sainsbury’s calendar reconciles these apparently conflicting accounts. It suggests that Williamson’s clerks, rather than occupied with classical archival work, were diverted into transcribing “the foreign packet” (probably intelligence despatches) and, apparently on this basis, writing and copying long or short letters containing “news” that were paid for by the subscribers to whom they were sent, but were complimentary for Williamson’s close friends or subscribers “at the ports.” Sainsbury, p. 220 – 221. This work appears to have been an additional enterprise to that of running the Gazette. Edwards adds the bizarre detail that Williamson’s rival Henry Muddiman’s newsletters were sometimes confiscated at the post office through Williamson’s influence, and were then accessioned to the State Paper Office. Edwards, Libraries, p. 193 – 194. 13 Popper, “Archives and the Boundaries of Early Modern Science,” p. 91. 14 Proper enrolment of records seems to have still been an issue during the Restoration, Williamson remarking that “all that passes the Great Seal ought to be enrolled.” Sainsbury, p. 252.

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tionary figures.¹⁵ The Records Commissioners later noted that “Much pains were taken, after the Restoration, to lodge in the State Paper Office the documents relative to the affairs of the Usurpation.”¹⁶ (Williamson may have already perceived the potential threat posed by the House of Orange; at any rate, he was keen to hunt down “the original treaty between the usurpers and Holland, for excluding the Prince of Orange.”)¹⁷ Cromwell’s spymaster John Thurloe was reported by Williamson to have hoarded all the State Papers of the Interregnum itself in four enormous chests, which he buried, then dug up again before they could be officially seized, in order to burn great quantities of papers “that would have hanged a great many”; however, according to the Records Commissioners “a large portion was secured, and now remains in the office.”¹⁸ Of the papers abstracted by Revolutionary figures such as Bradshaw, Milton, and Thurloe, Williamson’s successor John Tucker noted that many were never recovered.¹⁹ An apparent warrant for a records seizure, issued to the Mayor of Bristol, is aimed at recovering SPO holdings taken by the late judge and regicide John Bradshaw, now in the possession of “one George Bishopp” of Bristol.²⁰ A “true catalogue” was to be made of these records.²¹ The warrant notes that Bradshaw took them “the better to carry on his execrable offences.”²² (The last two words are uncertain, very unclearly written: Sainsbury has ‘designs.’)²³ This suggests that Bradshaw used SPO documents either in his prosecution of Charles I, or, less sensationally, in his later judicial and political career.²⁴ Certainly Charles II wanted revenge on Bradshaw: following the Restoration he had Bradshaw (along with Cromwell and General Ireton) exhumed, and displayed their heads on pikes in Westminster Hall.²⁵ His drive to recover these State Papers may therefore also have been vengefully motivated. An apparently undated accession note from the Restoration concerns two volumes of records from the Cromwellian Council of State, spanning the period from the 20th of January 1658 “when Richard Cromwell usurped the title of Protect(o)r”

15 16 17 18 19 20 21 22 23 24 25

Sainsbury, p. 252. Records Commission, Vol. I, p. xviii. Sainsbury, p. 245. Records Commission, Vol. I, p. xviii; Firth, “Thurloe, John”; Sainsbury, p. 216, 244. Sainsbury, p. 216. SP 45/20 f. 125 r. SP 45/20 f. 125 r. SP 45/20 f. 125 r. Sainsbury, p. 242. Lee, “Bradshaw, John.” Lee, “Bradshaw, John.”

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to the 25th of May 1660, just “before his Majestie’s happy Restaureaion.”²⁶ These appear to be those volumes previously identified by Williamson as “in the possession of Mr. Woolley, Keeper of the Council Records” – a comment which suggests that the Council of State record-keepers did not store their papers in the SPO (Wilson had also experienced difficulty in accessioning Privy Council records).²⁷ An apparently separate, larger collection of “the books of the Council of State during the Inter-regnum” was the subject of a warrant issued on the 25th of November 1662 to a Mrs Marston, to allow Williamson or one of his clerks to seize the volumes which had been in the possession of her late husband.²⁸ Marston is described as “one of ye Clerks of Mr Jessop” – the William Jessop who was “assistant secretary” to the Council of State.²⁹ However, the Crown’s uncertainty of the whereabouts of these important documents is suggested by the fact that the warrant is not specific to Mrs Marston, but general, covering “all others in whose hands any of ye Bookes of ye Councell or other Bookes or Papers relateing to ye late transactions, or ye Councell in the times of ye late usurpation, now are.”³⁰ There was even an attempt at an international recovery of SPO material, perhaps in 1661, when Thomas Raymond tried to track down a volume that had been lent to a Monsieur Doublet by William Boswell and was now in the possession of Doublet’s heirs at The Hague.³¹ A very confused note, unsigned and undated, suggests something of the official eagerness to accession material relating to the Interregnum and particularly to enemies of the Crown, as well as the chaos in which such papers were to be found. It is headed “Pap(er)s w(hi)ch ought to be delivered into ye Pap(er) Office” and includes “Severall pap(er)s seysid uppon amongst Bradshawes Goods w(hi)ch were given to ye Lord Gerrard & in ye Custody of Willi(a)m Carr or Will Dobson or where they have disposed of ye same,” followed by the remark that “Mr Cotton servant (?) & Norfolks man gave (?) notice of this.”³² The next item is “One Hamp full of Pap(er)s seysid uppon by some of ye Life Guard & delivered to ye Lord Gerards serv(an)t. This Informacon is given by a Scotch Maior and a widdow woman in Kingstreet, ye Pap(er)s did belonge to Ludlowe.”³³ Edmund Ludlow had been one of the regicide judges, a signatory of Charles’s death warrant.³⁴

26 27 28 29 30 31 32 33

SP 45/20 f 138 r. Sainsbury, p. 245. SP 45/20, no folio nr, sandwiched between fs. 135 and 136; Sainsbury, p. 214, 244. Cal. State Papers Dom. (1653 – 54), p. vii-xxxv; Sainsbury, p. 214. SP 45/20, no folio nr, sandwiched between fs. 135 and 136. SP 45/20 f 123 r; Sainsbury, p. 243. SP 45/20 f 139 r. SP 45/20 f 139 r; Sainsbury, p. 214.

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That the Crown was known to be very interested in accessioning the papers of the Interregnum era is suggested by a spontaneous offer by a John Keatinge on the 10th of April 1665: “I have sent the bearer to wayte on you, to know yo(u)r pleasyre concerning the bookes of Derby Howse Committee.”³⁵ The enquirer seems to hope for some personal benefit in giving up these records: “In order to the dischardging his Majestye of soe considerable A Debt as some pretend, who it will Appeare to Have beene payde Allreddy when those bookes are brought to light.”³⁶ The Derby House Committee was another name for the Committee of the Two Kingdoms, which had been formed in 1644 after the Parliamentarians had made a military alliance with the Scots.³⁷ Further accessions seem to have focussed on the Interregnum’s finances: a note from the 16th of August 1666 lists “A certificate of the rates contracted 11 March 1650” and certificates of rates from subsequent years, as well as books of contracts from 1650 – 51 and “Day orders of the trustees from 1649 to 1652.”³⁸ The last item seems connected with the Long Parliament’s expropriation of Royalist and episcopal property and sale of it via trustees for the benefit of the Commonwealth.³⁹ Williamson was ultimately successful in recovering substantial quantities of Interregnum papers, adding the division “Usurpation, their Council Books, Petitions, &c” to the SPO’s organisation scheme.⁴⁰ Altogether, it is clear that attempting to recover the records of the previous regime was no easy task. The difficulty of trying to document Civil War administrative structures is suggested by a list, which Sainsbury states was annotated by Williamson and dates to 1686, of the various committees and commissioners “that Acted in the late tymes of Rebellion” from 1643 – 49, and the scattered custodies in which their respective papers were currently located.⁴¹ Revolutionary records were often in the possession of the various committees’ clerks or their heirs. This was true for the papers of the Committee for Sequestrations and the Committee for Plundered Ministers, while Williamson noted that the “Books of the sale of the Dean and Chapter’s lands” held by the clerk of the relevant committee had made their way first to the Bishop of London and then to “Mr.

34 35 36 37 38 39 40 41

Firth, “Ludlow, Edmund.” SP 45/20 f 140 r. SP 45/20 f 140 r. The National Archives, “Committee of Both Kingdoms (‘Derby House Committee’): Books.” SP 45/20 f 140 r. Thirsk, “The Sales of Royalist Land During the Interregnum.” Sainsbury, p. 250. SP 45/21 f 187 r; Sainsbury, p. 252.

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Dugdale for the use of that church” (St Paul’s, Sainsbury surmises).⁴² A Francis Ryley, formerly “clerk at Goldsmith’s Hall,” was now keeping records from “Haberdasher’s Hall” and some from “Camden House” in “the Great Sanctuary” of Westminster Abbey – though the records of the Committee for Sequestrations, which had sat in Camden House, were separately held by a Mr Aldridge.⁴³ (The area of the Great Sanctuary, located approximately on what is now Parliament Square, was associated with wealthy career criminals due to the immunity from prosecution that it had once offered those who lived there, removed when James I abolished the right of sanctuary.)⁴⁴ During the Restoration the Great Sanctuary was known for a tavern inappropriately named The Quaker, patronised by Samuel Pepys – perhaps Ryley, or his collection of records, was lodging there.⁴⁵ It was reported that Ryley or a man called Leech, the latter apparently living in The Three Pigeons in Cheapside, or alternatively a Thomas Plummer of Westminster who had been a clerk at Haberdasher’s Hall, could provide information on the current whereabouts of papers once thought to be in the possession of Willingham; this may suggest that the Council of State’s 1650 attempt to accession from Willingham had been unsuccessful, and that the records sought in this particular case were pre-Interregnum.⁴⁶ Additionally, Ryley appears to have been keeping other papers, probably related to sequestration, in Haberdasher’s Hall itself, and it seems that his collections both there and in the Great Sanctuary were seized for the SPO by Williamson.⁴⁷ It is easy to see why the Crown was keenly interested in recovering the records of Royalist property expropriated by the Revolutionary forces. The fact that Revolutionary-era records clerks were holed up with their records in insalubrious places may suggest that they were frightened of retribution for their perceived part in expropriations of Royalists – the persecution of Phelps for taking the minutes of Charles I’s ‘trial,’ discussed earlier, had probably given them all pause for thought. Williamson and Charles II took up Wilson’s preoccupation with diplomatic instruments. On the 5th of March 1669 Charles issued a warrant “To the Commissioners of Our Trea(su)ry and to the Trea(su)rer and Comm(ission)er of Our Trea(su)ry, the under Trea(su)rer, Chancellor and Barons of Our Excheq(ue)r, the Chamberlains and other the Officers of Our Excheq(ue)r,” apparently so that Williamson

42 43 44 45 46 47

Sainsbury, p. 252. Sainsbury, p. 251 – 252. Keegan, Victor. “Vic Keegan’s Lost London 198: The Supreme Court’s criminal past.” Keegan. Sainsbury, p. 251. Sainsbury, p. 252.

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could fill the gaps in the SPO’s diplomatic holdings.⁴⁸ These officials were to allow Williamson or his servants “to peruse all such records & memorialls as now are in yo(u)r custody, & from them to make Transcripts of whatsoever Treatyes, Leagues, Commissions conduceing thereto, & publicke Grants, w(hi)ch he or they shall deeme fit for Our service, as also to make use of all such Indexes, Calendars and Repertories there, w(hi)ch may ye better further ye same, w(i)thout takeing any fee or reward for soe doeing.”⁴⁹ This meant that some diplomatic records would afterwards have been present twice: in their original form in the Exchequer repositories, and in copy in the SPO. (This may be the project in which William Ryley junior transcribed Tower diplomatic records for Williamson.) The same warrant was issued again on the 29th of May 1671, suggesting that the first had not been altogether effective.⁵⁰ This undertaking may be somehow connected with an undated purchase list (Sainsbury suggests 1669) in French, concerning manuscripts ordered in Paris by “My Lord Arlington” through his agent Du Moulin.⁵¹ It describes various diplomatic records concerning France (including treaties between the Kings of England and France from 1193 – 1632), and numerous despatches and memoirs.⁵² This accession would have been enormous, consisting of sixty-five folio volumes, but according to Williamson, either Arlington or Du Moulin failed to follow through on the purchase.⁵³ Williamson was fascinated by cataloguing, and this interest transcended the boundary between the SPO and his own “secretarial archive.”⁵⁴ According to Popper, he created a “‘Generall calendar of Treatyes with Foreign Princes &c.’ in his possession and in the State Paper Office,” which contained location symbols for the treaties, catalogued according to treaty partner.⁵⁵ Additionally, Williamson made digest catalogues of Patent Rolls and other records.⁵⁶ However, Popper states that “Williamson never created a universal system for either his secretariat or the State Paper Office. The result was a surfeit of indexes (at least twenty-four) no less daunting than his excess of materials.”⁵⁷ While Williamson appears to have moved industrial quantities of State Papers, apparently a combination of originals and

48 49 50 51 52 53 54 55 56 57

SP 45/21 f 140 r. SP 45/21 f 140 r; Sainsbury, p. 246. SP 45/21 f 150 r. SP 45/21 f 144 r and v; Encyclopaedia Britannica, “Henry Bennett, 1st earl of Arlington.” SP 45/21 f 144 r. SP 45/21 f 144 v. Popper, “Archives and the Boundaries of Early Modern Science,” p. 92. Popper, “Archives and the Boundaries of Early Modern Science,” p. 92. Popper, “Archives and the Boundaries of Early Modern Science,” p. 92. Popper, “Archives and the Boundaries of Early Modern Science,” p. 92.

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transcriptions, to his own personal collection during his tenure as Keeper, he did bequeath most of these – in the shape of 282 volumes ranging from Elizabeth “to William and Mary” – back to the SPO (though an unfortunate mistake by his executors sent some State Papers to Queen’s College, Oxford).⁵⁸ That Williamson was keeping State Papers in his house probably explains a note by one of his employees entitled “A register of my master’s papers at home in his study.”⁵⁹ There seems to have been significantly more official support for accessioning State Papers in the Williamson era, at least to begin with. An accession list signed by Williamson for materials received from Arlington in October (possibly in 1670) notes that it was by “his Lordshipps particular command” that they were accessioned.⁶⁰ These include volumes on “Forreigne Dominions,” “Ireland,” military matters, and a book of Charles II’s own correspondence, and span the period 1662 – 65.⁶¹ Arlington’s co-operation and speed in surrendering papers contrasts with the surly attitude of many of his predecessors. However, Hall passes a damning verdict on accessioning under Williamson: that while he “was able to endow the Office with an enormous number of curious but really useless commonplace books […] the State was the poorer by many hundreds of volumes which passed out of official custody during this period.”⁶² Edwards suggests that little routine accessioning from the Secretaries of State took place after 1670.⁶³ Hardly any internal SPO papers remain for the later reigns of Charles II or indeed James II. No trace of the renewed constitutional controversy leading up to the Glorious Revolution seems to have survived in the SPO’s own documentation. The first document from the reign of William of Orange is misfiled: the draft warrant from 1689 for William Petyt’s appointment to the Tower records repository.⁶⁴ The reputed neglect of the SPO by Williamson may explain why, in 1702, Tucker was given the Keepership “during his good behavior.”⁶⁵ However, another explanation is likelier. The reference to good behaviour is identical to the formulation in the 1701 Act of Settlement’s guarantee of judicial independence, which removed judicial tenure from the whims of the Crown so that judges were now subject only to Parliament.⁶⁶ The expression may therefore indicate that the Keeper of the former-

58 59 60 61 62 63 64 65 66

Edwards, Libraries, p. 198; Sainsbury, p. 252. Sainsbury, p. 237. SP 45/21 f 143 r. SP 45/21 f 143 r. Hall, p. 39. Edwards, Libraries, p. 199. SP 45/21, marked on the reverse 112 B. Sainsbury, p. 252. The Royal Household, “The Act of Settlement.”

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ly prerogative-oriented SPO was now under Parliamentary rather than Crown oversight, so that in the archival arena the Glorious Revolution was now complete. Indeed, a footnote provided by Thomas suggests that the Glorious Revolution marked a caesura in terms of how the SPO’s contents were chronologically viewed, and with it a watershed in the later perception of the English past. He explains that the “modern State Papers” begin “about the time of the Revolution” and that in 1741 a dedicated repository to house them separately from the earlier State Papers was found for them in the “Transmitter’s Office in Middle Scotland Yard.”⁶⁷ This detail expresses the later English view of the Revolution as the commencement of the modern age.

67 Thomas, Hand-Book, p. 449 fn. c.

31 Official secrecy and research permissions The access regime at the State Paper Office from 1600 – 1700 must now be considered as a point of contrast to those of the Exchequer repositories and the Cotton collection, which have been examined in Part Two. The SPO’s contents were meant to consist exclusively of arcana imperii, documents concerned only with “matters of state” and the Crown.¹ The phrase “matters of state,” so contentious in the context of the Crown’s claimed prerogative right to imprison without charge, indicated that these documents were highly confidential. Unsurprisingly, Wilson’s oath of office emphasised this aspect, the duty to keep safe the state secrets contained in the SPO.² He specifically promised “carefully & faithfully” to “keepe secret & conceale from the knowledge of others (eyther by writing or relation) all such things therin contained […] except it bee to the Lords & others of his Ma(jes)tie’s Privie Councell, or such as his Majestie shalbe content to have the same communicated unto.”³ This emphasis on secrecy in government was not unique to early modern England, but was shared with many other contemporary European states. Indeed, by 1600 there was a Europe-wide movement towards secrecy in every aspect of governance, most obvious in the Venetian case but also apparent in England.⁴ De Vivo et al suggest a practical reason for the increasing obsession with secrecy in the early modern Italian city states, that it was an official “response to the anxieties caused by the frequent, illicit dispersal of documents” – often as a result of the proprietary attitudes of aristocratic government ministers – which demonstrates that, despite an illustrious early archival history, the Italian world was bedevilled by some of the same difficulties as England.⁵ However, the famous Renaissance rediscovery of Tacitism with its doctrine of arcana imperii, as mediated by Machiavelli’s writings, no doubt also played a substantial role. There was, of course, a widespread association between secrecy and archives in early modern Continental Europe.⁶ Wilson was probably exposed to this tradition during his career as a diplomat and spy on the Continent, and it may have influenced his own continual insistence on the secrecy of the SPO’s holdings. 1 Fussner, p. 69 and 77. 2 Fussner, p. 77. 3 SP 45/20 f 130 r; also quoted in Riordan, “State Papers and the Writing of History,” p. 72; Ailes and Mair; Kate Peters, p. 163. 4 Elukin, “Keeping Secrets in Medieval and Early Modern English Government,” p. 127– 128. 5 De Vivo, Guidi and Silvestri, “Archival Transformations in Early Modern European History,” p. 426. 6 Friedrich, Die Geburt des Archivs, p. 112. https://doi.org/10.1515/9783110791464-033

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Snyder describes how “The development of the doctrine of reason of state (raison d’état […]) accompanied the consolidation of European absolutism between the sixteenth and seventeenth centuries.”⁷ In an age plagued by religious wars and “increasingly fierce economic competition between the great European superstates,” elites saw good reason to concentrate ever more “fiscal, bureaucratic, and military power in the hands of the prince.”⁸ This was accompanied by a “keen awareness throughout Europe of the need for governments to control tightly all access to the arcana imperii, or secrets of state, upon which the prince’s power often depended.”⁹ At the same time, the growing power of Protestantism with its push towards open and accessible information threatened official secrecy and thereby forced government to intensify its insistence upon it.¹⁰ James’s formal constituting of the State Paper Office as a repository of top-secret documents is thus thoroughly consistent with his affinity for the principle of the Divine Right of Kings. Perhaps it also betrayed a certain insecurity inherent to both his personality and to his position as a foreign king on the English throne, having succeeded one of the most revered monarchs in history.

The regulation of the State Paper Office’s access regime The evidence for the SPO’s warrant system can be established indirectly via an undated draft letter to James by Wilson, which reads as a confirmation of the procedure that had been agreed upon for viewing the records.¹¹ Here, unsurprisingly, there is evidence of administrative chaos in the management of the SPO. It was supposed to be answerable to the Secretary of State, but the Lord Chamberlain seems to have attempted to extend his purview over the office. After the fall of Carr (Somerset) for his implication in the Overbury scandal, Wilson reported to James a conversation with Carr “when hee was first Lord Chamberlaine, and that by yo(u)r Ma(jes)tie’s appointent as hee said” (which would place this discussion in 1614), in which Carr had told Wilson not to allow any man to view any records without a warrant either from James or from the Lord Chamberlain.¹² This was despite Wilson’s oath of office, which allowed him to give access without a

7 Snyder, Dissimulation and the Culture of Absolutism in Early Modern Europe, p. 23. 8 Snyder, p. 23. 9 Snyder, p. 23. 10 Elukin, p. 129. 11 SP 45/20 f 47 r. 12 SP 45/20 f 130 r; Encyclopaedia Britannica, “Robert Carr, earl of Somerset.”

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warrant to the Lords and Privy Council members.¹³ Wilson confirms his observance of this order, but with exceptions for “Mr Secretary” (of State) or other members of the Privy Council who have occasionally requested “such things as were to be used in yo(u)r Ma(jes)tie’s service,” arguing that this was consistent with his own oath.¹⁴ Thus Wilson had allowed access for official business, but had conducted no searches for records in the SPO for outsiders without a warrant.¹⁵ This source serves to confirm Fussner’s assertion that “Research at the State Paper Office was at all times restricted, and Sir Thomas Wilson and others naturally refused to permit any unauthorized persons to have sight of state papers except by special warrant.”¹⁶ The tone of Wilson’s letter seems, at first glance, defensive, suggesting that he may have been responding to concern from the Crown that the secrecy of its papers had been inadequately guarded. Indeed, Peters reads it as evidence of Wilson’s panic once his patron Carr had been deposed.¹⁷ However, the rest of the message suggests that it may have had another motivation entirely. Wilson goes on to ask James whether, if the new – apparently not yet appointed – Lord Chamberlain should give Wilson the same order (i. e. not to permit any use of the records without a warrant) he might ignore it, given the fact that Wilson has custody of “divers records & busines, w(hi)ch others of yo(u)r Ma(jes)tie’s officers may have cause to use for th’advancem(en)t of yo(u)r service, and the case standing w(i)th my Lord of Somersett as it doth.”¹⁸ Perhaps James would instead consider leaving “it to my discretion & faithfullnes as it was before that commandm(en)t was given, in all which tyme I dare avowe that none can say, I ever comunicated any to anyman but was conducable to yo(u)r Ma(jes)tie’s service, being bond therunto by a strickt othe.”¹⁹ (Emphasis added.) This would also make less work for James, as it was “not fitt to truble yo(u)r Ma(jes)tie upon all such occasions.”²⁰ This letter shows Wilson taking advantage of a sudden power vacuum created by Carr’s banishment as Royal favourite, in order to pre-emptively renegotiate the permissions regime with James directly in what Wilson frames as a return to the status quo ante Carr. It is, however, unclear from the letter whether Wilson is asking to dispense with the warrant regime only in the case of Royal servants, or addi-

13 14 15 16 17 18 19 20

SP 45/20 f 130 r. SP 45/20 f 130 r. SP 45/20 f 130 r. Fussner, p. 89. Kate Peters, p. 165 – 166. SP 45/20 f 130 r. SP 45/20 f 130 r. SP 45/20 f 130 r.

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tionally in external use cases, and whether he is asking for the power to dispense formal warrants himself. (This would, of course, have enhanced his position significantly.) According to a passage from another letter by Wilson which appears in a collection of correspondence and is dated 1616, it appears that he did not completely get his way.²¹ Indeed, James seems to have used the opportunity to re-assert his authority over the permissions regime in a partial compromise solution. Wilson recapitulates that it was ultimately decided that “in all matters in this office of the papers which wer necessary for Ambassadors to see I shold receyve warrant from my Lord Chamberlain, And for all other matters of secrecy that I shold have his Majestyes own warrant & direccion […] and for all thinges that wer fitt to be used by the the [sic] Secretaryes privy councellors or others which might advance his Majestyes service I shold use my own discretion according as my oth & duty byndeth me.”²² This significantly pushed back the Lord Chamberlain’s incursion into the permissions regime, giving him a right to issue warrants only to diplomatic staff and reserving all other external requests to James himself (not to either James or the Lord Chamberlain, as under Carr). This differentiation suggests that James trusted his diplomatic staff significantly less than high-ranking government servants, positioning the former in a liminal zone between internal and external users; given the nexus between diplomacy and espionage in this era, this is perhaps not surprising. Wilson had, however, successfully re-asserted his own discretion to allow access without warrants for direct government business, as stipulated by his own oath of office. It seems clear that research requests from members of the public would now fall under “all other matters of secrecy” for which, now, only a warrant from the King (and not, as in the Carr regime, alternatively a warrant from the Lord Chamberlain) would suffice. In this respect, the new regulations represented a return to the terms of Wilson’s oath. Some doubt is cast on the consistency of this new regime by a mysterious, undated but apparently later draft letter by Wilson to an unnamed ambassador who seems to have been pressuring him to allow him access to the papers without a Royal warrant, which Wilson had apparently portrayed as a necessity. The letter, however, seems dubious; Wilson may have been deliberately stonewalling. He explains that the ambassador will have all the additional materials that he wants, after his return (probably from his mission), if the ambassador will persuade the Secretary of State to ask the king to give his permission. “For his ma(jes)ties

21 Kate Peters, p. 165. 22 Quoted in Riordan, “State Papers and the Writing of History,” p. 72.

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express command to me is, that I shall comunicate nothing to any man w(i)thout his pleasure first signifyed, & yo(u)r lord(ship) knowes well how strickt wee ought to bee in our princes comands & instrucions.”²³ Suspicion is raised by the crossingout of the interpolated sentence, which Wilson had begun and evidently thought better of: “The Secretaryes of State have hertofore taken upon them.”²⁴ This letter may suggest that James had back-pedalled on his regime of allowing diplomatic access with a warrant from the Lord Chamberlain – or perhaps Wilson was simply attempting to discourage this particular ambassador. Hall expresses cynicism about Wilson’s regulatory tendencies, suggesting that “the red-tape with which this department was henceforth enswathed was chiefly devised by the first patentee with a view to enhance the importance of his office.”²⁵ This, however, ignores not only the general historical background (an increasing governmental preoccupation with secrecy), but also the direct impetus for the warrant system from the Crown and the Lord Chamberlain, as evidenced by the correspondence quoted above. According to Hall, Wilson drafted “a number of precedents in his own hand,” which included “the terms of his patent of office, the oath of the keeper, warrants and orders of various kinds for issuing Records, for making searches and copies and for impounding outstanding Papers.”²⁶ Hall does not cite any sources for this contention, and most likely means the exemplars preserved in the internal papers of the SPO under discussion in this book. Some of these documents do not, in fact, appear to be in Wilson’s hand, though he may have employed his clerks to draft correspondence for him. Even if he did draft some of these templates, this does not mean that their contents were not dictated by government officials (such as the Lord Chamberlain). Hall adds “that in some cases these instruments do not appear to have been executed,” leading him to speculate that they were not “authentic.”²⁷ Overall Hall appears confused by the fact that draft copy versions of documents are bound up in the SPO’s own internal papers, the final versions having been sent out for execution. The drafts of various official warrants contained in the papers leave spaces for the date and the King’s (or a government official’s) signature. A prime example is the warrant to seize papers from Reid, the deceased Secretary for the Latin Tongue. It is clearly endorsed “A warrant for his Ma(jes)tie to signe for the delivery into the office of papers and Records for buisness of State 23 24 25 26 27

SP 45/20 f 129 r. SP 45/20 f 129 r. Hall, p. 37. Hall, p. 37. Hall, p. 37– 38.

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all such minuts of latin le(tte)rs as were in the custody of Mr Reade lately deceased.”²⁸ There is thus no basis for Hall’s implication that Wilson, in essence, forged these documents. Indeed, in the circumstances of the Stuart regime, as shown by the example of Carr, this would have been a dangerous thing to do. Furthermore, no evidence can be found that Wilson kept to a system of self-administered warrants following and despite James’s confirmation that they were not needed for official government use. Hall’s insinuations seem to be motivated by a personal dislike of Wilson which leads him to misinterpret the primary sources and suggest that the SPO’s regulatory framework was established mainly on Wilson’s initiative, evidence of a “pushfulness in which the knight excelled even his contemporaries” (Wilson would not, in fact, be knighted till 1618).²⁹

28 SP 45/20 f 76 r. 29 Hall, p. 37– 38.

32 Use requests under James I Since James had confirmed that official government use of the records did not require a warrant and could be left to Wilson’s discretion, such uses can only be pieced together indirectly from Wilson’s bills for services rendered (containing lists of transcriptions made for officials), and from his correspondence. Wilson was very busy with policy research for statesmen, and in a letter he noted that various Secretaries of State “neaver left calling on me for abstracting, transcribeing, translateing, and collecting such things as they had use of.”¹ In August 1614 he was ordered by the Lord Chancellor and (somewhat bizarrely) Archbishop Abbot “to search the records in his custody relating to the King’s jurisdiction and right on the seas, and of fisheries upon the coast, and to hold them ready for inspection.”² This may be the same as a similarly worded request that Ailes and Mair describe as coming from the Privy Council and portray as being “for his Majesty’s special service.”³ In 1616 Wilson gave the Lord Chancellor a compendium of transcribed commercial treaties with the Netherlands.⁴ He was also occupied with supplying diplomats with “summaries of past negotiations,” and in 1624 provided Secretary of State Sir Edward Conway “with ‘secret articles of the treaty with Spain concluded in 1604.’”⁵ The SPO was used to help resolve high-profile legal disputes as well: in 1627 Conway ordered Wilson to “search for certain papers that may concern a difference between the Viscount Kinsale and Lord Courcy.”⁶ Also in 1627, Cotton and Wilson were required to join forces in order to certify to the Privy Council that Arthur Cundall’s new house “in the Old Palace Yard” had been “partly built upon the foundation of a house erected about 27 years before by Henry Ferris.”⁷ Other research focussed on the new duties involved in taking over an office of State.⁸ This seems to have been the substance of work done for the Earl of Suffolk on his appointment as Lord Treasurer, Carr on his appointment as Lord Chamberlain (here Wilson notes that the volume which he compiled for Carr contained “all papers which I have concerning that office”), and Villiers on the offices of Earl

1 2 3 4 5 6 7 8

Quoted in Popper, “From Abbey to Archive,” p. 262; Ailes and Mair. Cal. State Papers Dom. (1611 – 18), p. 252. Quoted in Ailes and Mair. Stewart, p. 245. Ailes and Mair; Thompson Cooper, “Conway, Edward”; Sainsbury, p. 236. Cal. State Papers Dom. (1627– 28), p. 127. Cal. State Papers Dom. (1627– 28), p. 356. Popper, “Archives and the Boundaries of Early Modern Science,” p. 91.

https://doi.org/10.1515/9783110791464-034

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Marshall and Lord Admiral in addition to the history of his title “Marquess of Buckingham.”⁹ However, these activities throw a problematic light on Wilson’s research in general, raising a question as to how much of his work was in fact officially solicited – an aspect at which Stewart hints when he suggests that Wilson attempted to highlight the treasures contained in his office by making collections of them.¹⁰ In the case of Villiers, Wilson seems to have spontaneously and presumptuously presented him with research dossiers in order to curry favour, exercise political influence, and even generate income by billing for them (one of Wilson’s bills for extraordinary services shows that he particularly focussed, in his dossier for Villiers on the office of Lord Admiral, on the Navy abuses and the means of remedying them).¹¹ A letter from Wilson to Villiers, apparently from 1621, notes that he had promised Villiers “some yearly fruits of his labour” upon James’s placing the SPO under Villiers.¹² Over the previous two years Wilson had “sent him all he could find concerning his office of Lord Admiral, and all matter belonging to the Earl Marshal,” while this year Villiers could look forward to Wilson’s comprehensive work of political philosophy drawing on the State Papers and all other relevant sources: “a table unfolding the parts, muscles, sinews, veins and arteries of a sound and well-ordered body politic, which, well observed, will conduce to the knowledge of a perfect and complete constitution of a good government.”¹³ Villiers did not appreciate this advice (which is of a similar tenor to Bacon’s records management tips), nor the two previous volumes. This is shown by Wilson’s letter from (probably) 1622 in which he complains that it does not seem that Villiers “had ever seen them” and continues – whether with intent to menace or embarrass Villiers is unclear – that since Villiers “regards not these books which Wilson has with much pains collected, now presents a book that is none of his concerning his Lordship’s private affairs.”¹⁴ (Emphasis added.) Given the rumours that swirled around Villiers’ relationship with James, this remark seems bold, to say the least. Thus Wilson’s research dossiers must in general be interpreted with caution within the context of actual use, unless it is explicit that these were requested. This is a different case to the individual transcriptions of treaties, such as those made of agreements between Elizabeth and the Low Countries for Villiers and Sec-

9 SP 45/20 f 68 r and v; Popper, “From Abbey to Archive,” p. 262; Stewart, p. 245. 10 Stewart, p. 245. 11 SP 45/20 f 68 r. 12 Sainsbury, p. 233. 13 Sainsbury, p. 233. 14 Sainsbury, p. 234.

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retary of State Calvert (contained in the same 1623 bill for work done up until 1619, when Wilson had “had his last allowance”): these seem more likely to have been actually requested.¹⁵ James’s own use of the SPO is particularly interesting. One note of Wilson’s suggests that the King was attempting to gain an overview of previous government business prior to his accession to the English throne: “Item his Ma(jes)tie appointed mee in February last to make him an abstract of all the principall papers of the late secretaries which I am nowe doing and I trust to end it shortly though it be a worke of great paynes.”¹⁶ The Crown’s financial struggles lay behind Wilson’s “history of the revenues of the chief powers in Europe,” but it is doubtful that this work was solicited by James.¹⁷ It was described by Wilson as focussing on the sources of revenue currently exploited by other European monarchs, combined with an historical overview of relevant English precedents for Royal revenue-raising since the Conquest for military or other extraordinary needs, alongside Wilson’s own description of “the state of the revenue at present” and his recommendations for the best funding projects – giving it a certain similarity to some of Cotton’s policy research.¹⁸ Wilson paired this work with an accessioning attempt, asking for James’s warrant to obtain the papers of the last two “Lord Treasurers,” without which Wilson could not be sufficiently precise.¹⁹ James’s interest in his son Charles’s matrimonial prospects, especially in the context of the Spanish Match, evidently prompted Wilson to make another volume for him. This contained “A relation howe our Princes of England since the conquest have benne matched either w(i)th forraigne Princes or at home, and withether to the good of the kingdom or otherwise.”²⁰ The book included what appear to be further policy advice excursions by Wilson: “A discourse by waye of inquisition of the reasons pro et contra concerning a marriage betwixt two Princes of contrary Relligions and the cautions to be had if the same succeede” (highly significant for the envisioned Spanish and French matches), and “A memoriall of things necessary to be considered in Treatyes of marriages betwixt Princes.”²¹ That Wilson went so far as to evaluate the advisability of various royal matches is surprising – but here again, as with his unsolicited work for Villiers, he was exceeding his brief, and this volume of marriage advice had not been officially requested. This was the col-

15 16 17 18 19 20 21

SP 45/20 f 68 r. SP 45/20 f 68 v. Stewart, p. 245. Sainsbury, p. 233. Sainsbury, p. 233. SP 45/20 f 59 r. SP 45/20 f 59 r.

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lection described by Wilson as a “Rhapsody concerning the marriages of princes’ children” (and presented to James in October 1617, at his Royston palace), of which Wilson noted that, since James’s ambassador to Spain had required transcriptions of “all treaties and instructions in his custody concerning the marriages of Princes’ children,” he had “thought it not unfitting” to make this book for James – thus he took this task upon himself, without impetus from the King.²² (His letter to James notes that he had finished the book “before he ever dreamed of the place of a Mastership of the Requests being vacant,” and then requests the position.)²³ The volume also contained abstracts of fifteen marriage treaties between the Crown of England and foreign powers, from Edward I to the proposed match between Elizabeth I and the Duke of Alençon – including the draft marriage service – and “An abstract of the discourses and reasons for the late match betwixt France and Spayne translated out of Italian.”²⁴ By Wilson’s own account, in contrast to his treatment of Villiers, he refrained from billing the King for these unsolicited researches.²⁵ The pains and expense that Wilson invested in such dossiers were considerable. Apparently in 1625, Wilson wrote that this volume for the King was “bound in purple velvet,” while in 1627 he commented reproachfully to Villiers that the folio-sized Admiralty book was “bound in green velvet, with his Grace’s arms and many devices embroidered on the cover.”²⁶ Very few external use requests have survived in the SPO’s own papers. The first request preserved is from the 29th of August 1618 and is, in fact, from a foreign government. It was apparently made by the ambassador of a local ruler in the Low Countries and involves the interests of three different parties: the local ruler, referred to only as “S. A. [Son Altesse] mon Seigneur,” “le Roy Tres-Chrestien” (a traditional appellation for the King of France), and the King of England.²⁷ The letter-writer, who signs himself ‘Van Male’ and writes from London, is probably the Van Male described by Coast as the agent of the Archduke of the Spanish Netherlands: the letter notes that the recipient (unspecified) will have been informed of the dispute between his lord and the King of France concerning the port of Gravelines.²⁸ Van Male has discovered, apparently in speaking to the “Registres de Flandres,” that there are in London (“ici”) some treaties and other papers that would

22 23 24 25 26 27 28

Stewart, p. 245; Sainsbury, p. 228 – 229, 236. Sainsbury, p. 229. SP 45/20 fs 59 r and v, 60 r. Sainsbury, p. 236. Sainsbury, p. 238 – 239. SP 45/20 f 45 r. SP 45/20 f 45 r; Coast, News and Rumour in Jacobean England, p. 27.

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verify this affair.²⁹ His lord has therefore commanded him to ask the King to permit him (Van Male) to take some copies of these.³⁰ Van Male asks for a warrant to be expedited for Sir Thomas Wilson and other officers who have such papers in their custody to allow this.³¹ He adds that he is certain that James will not refuse this favour because it could not in any way prejudice his Royal Service – on the contrary, it would pacify and eliminate the difference between the two other princes, a remark which implies that it would be in James’s interest to maintain peace between the Spanish Netherlands and France on this matter.³² The bottom of the letter is annotated with an abbreviated Latin reference to a volume of records containing documents relating to a William Trumball in 1618.³³ The requester’s emphasis on arguing James’s political interest in providing access to the records suggests his awareness that the access regime for external users was strict. This is obviously not the case to which Riordan refers, contained in an earlier letter of March 1618 by Wilson to James (sent via Villiers), relaying a request by the ‘Trumball’ named in Van Male’s letter – actually Trumbull, a key agent of James’s located at the Archduke’s court – for transcriptions of treaties from the sixteenth century.³⁴ However, the requests may have been connected. While it is not clear what became of Van Male’s case, Riordan notes that James granted Trumball’s request, and that this is “not surprising” because Trumball “wanted the treaties to better carry out government service.”³⁵ Wilson forwarded Trumball’s request to the King only because Trumball was not strictly an ambassador, but “technically an accredited agent.”³⁶ This may explain why, in this case, the convention of obtaining a warrant from the Lord Chamberlain for ambassadorial use was not applied. It is worth noting that in Wilson’s accession lists there are many bundles of letters from Trumball, some listed under the heading “Flanders.”³⁷ They include

29 SP 45/20 f 45 r. 30 SP 45/20 f 45 r. 31 SP 45/20 f 45 r. 32 SP 45/20 f 45 r. 33 SP 45/20 f 45 r. Thanks to Dr. Rainer Brüning for a useful discussion of this last line. 34 Riordan, “State Papers and the Writing of History,” p. 72 – 73. 35 Riordan, “State Papers and the Writing of History,” p. 73. 36 Riordan, “State Papers and the Writing of History,” p. 73. It is interesting to set this example alongside a later external diplomatic request, in 1624, from the French Ambassador for the English copy of the Treaty of Brétigny (of which the French had lost their own copy). Wilson suggested to Secretary of State Conway that, even though the treaty contained Edward III’s renunciation of the French throne, this was not a danger since Henry V had later recovered the French Crown, so that they could safely give the whole treaty to the Ambassador. Sainsbury, p. 237. 37 SP 45/20 f 174 v.

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letters about a dispute between the French King and the Prince of Conti from 1616, possibly connected to Van Male’s matter.³⁸ Surprisingly, given the (at least on Wilson’s side) bitter rivalry between Wilson and Sir Robert Cotton, this letter forwarding Trumball’s request also includes an enquiry on Cotton’s behalf.³⁹ Wilson explains that Cotton had, for his own curiosity, made collections “of ye subscriptions & signatures of Princes and greate men of ye world [and] desireth from me a supplyment of such as I have in theyre lettres which are otherwise of noe importance, & which hee hath not.”⁴⁰ The wording suggests a surprisingly co-operative and sympathetic attitude on Wilson’s part to Cotton’s cannibalising of autographs, which is very peculiar considering his usual territorial reaction to Cotton’s activities.⁴¹ Indeed, it is hard to explain why Wilson would countenance allowing Cotton to take original documents, rather than copies. James’s approval of this request is equally surprising.⁴² Cappon sees this bizarre incident as illuminating the contemporary archival mind-set on records retention and disposal in general, but this conclusion seems doubtful.⁴³ It is even stranger than the episode, apparently in 1624, in which Sir Robert Naunton, having lost his own “copies of certain letters” that he had sent to the notorious “late Earl of Essex” from 1596 – 98 during his own diplomatic service in “Paris and other places,” asked to have the official copies out of the SPO and never return them, on the understanding that Wilson would transcribe the important points for the King “or the public service” out of them first.⁴⁴ The wording of the letter in which Wilson relayed this request to the King suggests that Wilson himself felt it to be reasonable.⁴⁵ By contrast, Riordan relates that James rejected the other requests in the letter of March 1618.⁴⁶ (Wilson seems to have saved up warrant requests until he had enough of them to make it worth James’s while, suggesting that his earlier expressed reluctance to trouble James was not disingenuous). One was from the Irish Earl of Ormond – embroiled in a legal dispute with the Earl of Desmond – who needed to see an order of Elizabeth I.⁴⁷ James’s denial of access is strange,

38 39 40 41 42 43 44 45 46 47

E. g. SP 45/20 f 176 r. Riordan, “State Papers and the Writing of Riordan, “State Papers and the Writing of Tite, The Panizzi Lectures, p. 101 fn. 21. Riordan, “State Papers and the Writing of Cappon, p. 152. Sainsbury, p. 237. Sainsbury, p. 237. Riordan, “State Papers and the Writing of Riordan, “State Papers and the Writing of

History,” p. 73. History,” p. 73. History,” p. 73.

History,” p. 72 – 73. History,” p. 72 – 73.

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given that an order of the Crown in the exercise of its executive powers does not seem like a confidential document, but the request lacks enough information to allow an adequate analysis. (The refusal contrasts with the long-standing convention of allowing litigants access to records concerning their legal interests.) The other refused request was from “some of the heralds,” a reference to members of the College of Arms, the official authority on heraldry and pedigree matters (indeed, four of the Society of Antiquaries’ members were heralds).⁴⁸ They wished “to see what I can shew them concerning ye persons & places of the Presidents of ye Counsell.”⁴⁹ James probably suspected the heralds of prying unduly into the affairs and pedigrees of Privy Councillors. Indeed, a vexatious motive on the heralds’ part cannot be excluded, given that the King’s entourage of Scottish favourites caused considerable English resentment.⁵⁰ In 1623, the Earl of St Albans apparently demanded all the Henrician papers in the State Paper Office.⁵¹ Wilson, whose response suggests that he was scandalised by this request, wrote to James that he was bound “by strict oath to deliver nothing out of the office unless to the Lords and others of His Majesty’s Council.”⁵² This statement appears to ignore the rule that external use requests could be approved by the Crown: it seems that Wilson scented danger, and perhaps hoped that James had forgotten this loophole. Nevertheless, Sir Joseph Williamson related that “Lord St Albans and Lord Cherbury had all Henry VIII’s papers to use” and that these were thereby embezzled, which suggests that James in fact granted his permission.⁵³ Two historical research uses of SPO materials are of particular note. First, by Wilson’s own embittered account in 1625, Cotton had enjoyed special research privileges before and then – under the auspice of a special licence from James – during Wilson’s tenure “for the verifying of” Camden’s history (“or under that pretext”), and Wilson provided a list of papers from 1578 – 85 of which Cotton now possessed the originals.⁵⁴ Secondly, apparently in 1612, Sir Peter Manhood, presiding over a

48 Riordan, “State Papers and the Writing of History,” p. 73; Fussner, p. 93; Encyclopaedia Britannica, “College of Arms.” 49 Riordan, p. 73. 50 Lake, p. 390. 51 Ailes and Mair; Sainsbury, p. 234. 52 Ailes and Mair; Sainsbury, p. 234. 53 Ailes and Mair; Sainsbury, p. 252. Also in 1623, an E. W. Fisher wrote Wilson an imploring request to see an Act of Lord Burghley’s from approximately 1572, which, like Burghley’s other papers, had apparently been delivered to his son Robert Cecil. It is not clear what came of Fisher’s frantic offer to Wilson of “love or money” if his messenger should be allowed to see the relevant volume. Sainsbury, p. 235. 54 Sainsbury, p. 237– 238.

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history of Turkey, was lent – with a deposit for their safe return – “the letters of late Ambassadors from Constantinople,” along with other relevant documents from 1588 – 1611.⁵⁵ No use requests appear to have survived in the SPO’s papers for the Caroline era, nor for the Interregnum. This may be partially explained by the apparent intent signalled by the Interregnum government, noted previously, to allow the public free access to the SPO.

55 Wernham, p. 25 – 26; Sainsbury, p. 225, 237.

33 Use requests after the Restoration The resumption of normal SPO reference business in 1660 is illustrated by a list from the 17th of October, detailing transcriptions of various diplomatic documents made for “Mr. Sec(rate)rie Nicholas” by Thomas Raymond.¹ It includes an exhaustive description of documents relating to Denmark up to 1639.² Raymond also provided transcriptions of records concerning “Morocco” in particular and “Barbarie” in general, based on a warrant from the King in July 1667 to enable the Earl of Peterborough to peruse and copy them.³ Charles II seems to have instituted a stricter access regime than that of his father and grandfather, insisting upon Royal warrants even for official government use (not merely for diplomatic purposes). This is indicated by the presence of a warrant from the 16th of December 1663 for papers relevant to a planned trade deal with “Piedmont or any part of ye D(uke) of Savoye’s Territorys,” the originals – or copies of them – to be delivered “to ye Councill of Trade […] established by Our Committ(e)e (?) und(e)r our Great Seale of England” or the Council’s appointees, but with receipt to be taken for these papers to ensure their “safe restoring.”⁴ On the 28th of October 1670, Charles II issued a warrant to Williamson to “communicate or cause to be communicated” to employees of the East India Company “all or any Books, Journalls, Letters or Writeings relateing to trade & Commerce with China, Japan and India formerly taken out of the two East India Prises [Presses] remaineing within your Custody in Our Office of Papers and Records of State and Counsell […] for the use of the said East India Company.”⁵ What happened to these documents is revealed by the next item in the SPO’s papers, which is “An Inventory of ye Books taken in ye Eastindia Ship ye Phoenix.”⁶ This list stretches to nearly four close-written folio pages. However, it consists mostly of East India Company ship journals, and it is far from clear why these were in the SPO to begin with – bearing in mind its remit to accession from central government – though clues may lie in the earlier incident in which Wilson collected intelligence for James from the Company’s factor, and in the SPO’s function as a repository for such information. Indeed, the remaining records requested contained intelligence on Batavia Castle (headquarters of the rival Dutch East India Company

1 2 3 4 5 6

SP SP SP SP SP SP

45/20 f 124 r. 45/20 f 124 r. 45/20 f 125 r and v. 45/21 f 142 r. 45/21 f 147 r; Sainsbury, p. 246. 45/21 f 148 r; Sainsbury, p. 246.

https://doi.org/10.1515/9783110791464-035

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in Indonesia), including “A booke of ye payeing of ye garrison of Batavia.”⁷ This records request was made between the Second (1665 – 67) and Third (1672 – 74) Anglo-Dutch Wars, so the East India Company may have had military-strategic reasons for wanting the records.⁸ Whether these records ultimately survived the Phoenix’s voyage (probably that of 1670 – 71; the vessel was apparently shipwrecked in 1680) is unclear.⁹ The mystery concerning the East India Company papers and the SPO is further deepened by a petition to Charles II in 1670 (or possibly 1678) by Thomas Arden Prise, Baronet, and his wife Elizabeth (née Denham).¹⁰ It complains that Joseph Williamson had stored “the East India Papers and severall other papers belonging to yo(u)r Ma(jes)tie’s Paper Office” for seven years in “some lodgings” belonging to their family in Scotland Yard, but that the £25 annual rent had never been paid and had now mounted up to £175, “of which sums yo(u)r pet(ition)er hath not been payd one peny.”¹¹ This suggests considerable records storage chaos during Williamson’s tenure. A list of papers transcribed for “Mr Coventry,” dated the 26th of August 1671, demonstrates a continued intensive use of the SPO for diplomatic research purposes, just as before the Civil War: these papers include “Method for pressing Spaine for the subsidy 1668,” “Secret Articles with Holland 1668,” “Separate Article with Denmark for mutuall defence in the observac(i)on of the Treaty of Commerce May 1665,” “Cession of Acadie &c. to the French King 1668,” as well as further papers concerning agreements with France over colonial possessions, and diplomatic relations in general.¹² These records on England’s global interests – particularly those which concerned secret treaties – would have been highly confidential. On the 23rd of September 1671 a warrant was issued by George Villiers, Second Duke of Buckingham under a power given to him by a Royal Commission, to require Williamson to deliver to Villiers’ secretary “all ye bookes, papers & writings relateing to ye Settlem(en)t of Ireland now in your custody or which you can come by and more particulerly those of Grocers hall & all others relatieng to ye Adventurers which were lately taken out of ye hands of Mr Tibbs, Mr Deacon or from ye Executors of Mr Hawkins Mr Jonson or any others.”¹³ This official use request highlights a particularly chaotic episode of the Civil War. The Adventurers were

7 SP 45/21 f 149 v; Encyclopaedia Britannica, “History of the Netherlands.” 8 Encyclopaedia Britannica, “Anglo-Dutch Wars.” 9 The National Archives, “Phoenix (1).” 10 SP 45/21 f 171 r; Sainsbury, p. 250. 11 SP 45/21 f 171 r; Sainsbury, p. 250. 12 SP 45/21 f 151 r. 13 SP 45/21 f 152 r.

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private merchants who, following the outbreak of the wars in England, used “a network centred on Grocers’ Hall” in London to obtain “control over parliament’s financial and military committees.”¹⁴ They received “the functions of parliament’s Committee for Irish Affairs” and therewith the responsibility for Parliament’s Irish policy, in which capacity they sent a naval expedition to attack Irish Royalist targets and hindered Charles I’s negotiation of “a ceasefire with the Irish rebels.”¹⁵ Williamson was clearly not satisfied with this insufficiently official-looking warrant. Upon writing to Charles II himself, Williamson received a confirmatory Royal warrant in October 1671: “Whereas you have represented to Us that the Commissioners appointed by Us by Our Commission under Our Great Seale of England […] for the examination of certaine matters relating to the late Act of Settlement of Our Kingdome of Ireland, have desired the communication, and perusall of certaine papers relating to that Settlement, remaining in your Custody […] Wee doe hereby sufficiently authorize, and require you, to deliver to the said Commissioners, or whom they shall thereto appoint, by warrant under their hands, all such Books, and papers heretofore of Grocers Hall, or which relate to the Adventurers of Ireland.”¹⁶ However, Charles II recognised the risk of these records going astray in the process: “The same to bee delivered out by way of Indenture, to bee carefully, and punctually restored, and redelivered through your hands into Our said Office of Our papers of State, so soone as the said Commissioners shall have made what use thereof they shall thinke fitt; or within the space of one year at the furthest, by the person that shall receive the same from you.”¹⁷ This exchange further supports the hypothesis of a strict, Royal warrant-only basis for official use requests (even by Royal Commissions) in the Restoration period – and perhaps shows that the Crown had learnt a healthy distrust of the unpredictable Villiers family. The request seems to have been made in the context of the government’s efforts to implement the 1662 Irish Act of Settlement and redistribute the property that had come into the hands of Cromwellian settlers to the established English community in Ireland.¹⁸ In a separate request, at some point a search was ordered amongst the Adventurers’ records in the SPO on behalf of “a gentleman […] come out of Ireland on purpose,” who would be “ruined if not back within ten days” with proof of a £4000 payment to a Captain William Tint by order of Parliament

14 15 16 17 18

Brown, “Grocers’ Hall.” Brown. SP 45/21, also marked f 152 r; Sainsbury, p. 216, 247. SP 45/21, also marked f 152 r; Sainsbury, p. 216. Plant, “The Settlement of Ireland, 1652 – 60.”

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for prosecuting the war in Ireland, necessary to support the enquirer’s title to an Irish property.¹⁹ A sudden flurry of historical use requests appears in the 1670s, mostly for official or semi-official research projects, and these were all approved. In 1670 the diarist John Evelyn was loaned a number of volumes “of papers relating to the war with Holland,” and he did not bring them back “until March 1672.”²⁰ On the 11th of July 1679 Charles II granted the request of the Scottish historian and divine Dr. Gilbert Burnet to use the SPO for “finishing the History of the Reformation of the Church in England, which he is now about,” and noted that Burnet should be allowed to use the SPO’s resources repeatedly (“from time to time”) – two weeks later Burnet wrote Williamson for permission “to make the search now in vacation time.”²¹ Burnet published his official history of the Reformation in 1681, and thanked Secretary of State Sunderland for his good offices in assisting him to obtain this warrant.²² The history was written at the behest of the Attorney-General, and its status as the official narrative of the English Reformation was confirmed by Parliament’s vote of thanks to Burnet on the first volume’s publication in 1679.²³ According to Airy, its rapturous reception was explained by the fact that the country was at the time “in the throes of the popish terror.”²⁴ This is clearly a reference to the “Popish Plot” of 1678, the fictitious conspiracy propagated by the rogue Anglican clergyman Titus Oates.²⁵ On the 9th of August 1679 Prince Rupert of the Rhine, Duke of Cumberland, who had been the head Royalist general in the Civil War, acted as go-between for Roger L’Estrange.²⁶ Rupert explains that L’Estrange “is about Writinge a History of the Civill Wars of England” and “desires to serch in the paper office to find out those some Passages which may be very convenient for that purpose, I have already spoken to His Ma(jes)tie whoe hath granted me this request.”²⁷ Rupert commands “that you admitt the said Mr LeStrange to looke into those papers in the

19 Sainsbury, p. 251. 20 Ailes and Mair; Sainsbury, p. 246. 21 SP 45/21 f 172 r; Sainsbury, p. 250; Ailes and Mair. 22 Burnet, The History of the Reformation of the Church of England, Vol. II, p. 192; Seccombe, “Spencer, Robert.” 23 Airy, “Burnet, Gilbert.” 24 Airy. 25 Encyclopaedia Britannica, “Popish Plot.” The hysteria even led the House of Commons to briefly imprison Joseph Williamson in the Tower of London on suspicion of having given – as Secretary of State – commissions to Catholic recusants, but the King intervened immediately to have him released. Edwards, Libraries, p. 194 – 195. 26 SP 45/21 f 174 r; Firth, “Rupert”; Sainsbury, p. 250. 27 SP 45/21 f 174 r.

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said office.”²⁸ L’Estrange was one of the most prominent and flamboyant figures of the Restoration, Charles I’s committed defender and an active advocate of Charles II’s return to the throne; giving him free rein in the SPO was probably not seen as dangerous (and if Edwards is correct about the manner of Williamson’s takeover of the Gazette, it might have salved an uncomfortable official conscience).²⁹ At some point after this, an overtly constitutional project was suggested by Samuell Mearne, the King’s Stationer, who “hath a designe of employing some able Pen to publish a Collection of severall Papers of State relating to the Publick and Government.”³⁰ The Crown gave permission for “Mearne or the person, who by the approbation of one of Our Principall Secretaries of State shall be employed in this matter” to use “from time to time” whatever resources in the SPO “may give him information & help in the finishing the said Collection.”³¹ It is significant that Mearne – contrary to his initial expectation – was not allowed to choose the historian himself, signalling an intent by the Crown to maintain a tight grip on the project. The approvals granted for all these historical research projects may suggest that the Crown in this era was becoming more alert to the propagandistic uses of history and the way in which its own private records could be deployed in their service, but that it also remained sensitive to the possible dangers of such projects. However, it may be a mistake to attribute too much interest in the topic to Charles II personally: in the cases of both Burnet and Mearne, the prime mover was the Earl of Sunderland. Finally, on the 29th of November 1692 (long after the accession of William and Mary in the Glorious Revolution) there was a direct request from the House of Lords for the Keeper of the SPO to “send to the House, the Regulation for the Posting and Ordering of Troopes and Officers that were in the Low Countryes in the yeares 1677, or 1678.”³² While it would be ill-advised to draw a firm conclusion from one piece of evidence, this suggests that the triumph of parliamentary monarchy had loosened the Crown’s stranglehold on the warrant system for official uses of the SPO, so that the Lords were now empowered to give the SPO orders directly. The foregoing analysis has made clear that, in the period 1600 – 1700, regulation of access requests at the State Paper Office was generally strict, but also incon-

28 SP 45/21 f 174 r. 29 Lynch and Dunan-Page, “Book Abstract: Roger L’Estrange and the Making of Restoration Culture.” 30 SP 45/21 f 175 r. 31 SP 45/21 f 175 r. 32 SP 45/21 f 189 r.

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sistent. It was certainly far more stringent than the regime at the Tower, to say nothing of the Cotton collection, and overall the examples investigated here support Wernham’s statement (quoted in “A Note on Terminology”) that access to the arcana imperii was only available “by very special grace and favour.”³³ Nevertheless, it appears that towards the end of the period access for historical research purposes was increasingly being granted, though all the approved projects were clearly in the political interests of the Crown.

33 Wernham, p. 12.

Conclusion: English archives and the wider European context The early modern age was “the great time of archives”: their political significance in the Continental European context has been subject to a number of recent investigations.¹ English archives have hitherto formed a comparative blank, and their true nature has been obscured by a durable tendency in the available research to misleadingly term them ‘libraries’ instead of ‘archives’ or ‘record offices.’ This investigation demonstrates for early modern England what Friedrich, de Vivo, and other scholars show for the Continent in the same period: that long before the age of Ranke, scholars increasingly used original sources in order to write history, and these activities were often accompanied by political and legal tensions.² Its case study of the seventeenth-century constitutional controversies and Revolution confirms, in dramatic fashion, the applicability to the English context of de Vivo et al’s comment that archives were “sites of social and political conflict […] the objects of conflicting claims,” resituating English archives away from the periphery and within the centre of political activity.³ Indeed, the common law attachment to precedent seems (although it is not easy to draw conclusive comparisons) to have even exacerbated these tendencies in England. The general Renaissance appeal to ‘return to the sources,’ a call repeated by John Selden and others, was complemented and given additional impetus by the common-law principle of stare decisis, the doctrine of binding precedent which provided the legal certainty sought after in this era’s excavation of the Ancient Constitution as a defence against the Stuarts’ perceived dangerous innovations. Within the common-law system, history was therefore seen as the guarantor of this Constitution. Thus, despite the lack of official interest in caring properly for archives, punctuated by occasional panics over the condition and storage of records, this book has shown that English archives played a central role in the research for the seventeenth-century constitutional debates and the power-political manoeuvres and judicial abuses connected with them. The exploitation of archives for political-constitutional purposes finds its most extreme expression in the works of Prynne, but Cotton and Selden were also highly active in the deployment of primary sources in legal-historical works which often critiqued contemporary devel1 De Vivo, Guidi and Silvestri, p. 421. See e. g. the entire special issue of the European History Quarterly in which this essay appeared, also entitled “Archival Transformations in Early Modern European History,” Vol. 46 Issue 3, 2016. 2 Friedrich, Die Geburt des Archivs, p. 233 – 234, 239 – 240; de Vivo, Guidi and Silvestri, p. 426. 3 De Vivo, Guidi and Silvestri, p. 426. https://doi.org/10.1515/9783110791464-036

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opments by analogy, while archival research was of key importance for the formulation of the Petition of Right. Not only were the Tower records and the records of Parliament itself heavily used in the constitutional debates, it seems highly probable that State Papers which had made their way into Cotton’s so-called ‘private collection’ were also investigated for ammunition by Parliamentarians. Indeed, private archival collections, such as Cotton’s and Coke’s, were often a focus for a mistrustful government, as the frequent seizures of such collections demonstrate – an abuse of power intimately connected to the constitutional struggle over habeas corpus, since a frequent motivation for such seizures was to find evidence for a charge after imprisonment. The overlap between the seventeenth-century political, legal, and archival worlds explains why the same individuals at differing times seized private archival collections or had their own confiscated, aided in convicting or imprisoning others in the Tower of London or were themselves imprisoned, in what eventually begins to resemble a macabre game of judicial musical chairs. The willingness of Selden and Prynne to return to the Tower as archiveskeepers, despite their previous imprisonments there, testifies to an extraordinary dedication to the records. While the connection between archives and law is demonstrated in the careers of Selden, Prynne, Cotton, and Wilson, the marked difference between the first three, involved at various points on the Parliamentary side of the constitutional struggles and predominantly driven by principle, and the latter as Keeper of the Royal secret archives – alternately devious, pathetic, and cynically expedient in his pursuit of money and influence – may suggest something of the differing moral climates in Parliament and Court at the time. (It would certainly be a mistake, however tempting from the common-law perspective, to extrapolate a further difference between the characters of common-law and civilian jurists.) The contrast may also evidence a fundamental difference in the political natures of publicly open versus officially secret archives. The surprising accessibility of the English ‘public records,’ the longstanding principle that they supported the people’s legal rights, seems to have directly fostered the early proto-democratic stirrings in England and helped to solidify the principle of the rule of law in the seventeenth century. (It cannot be assumed that the allegiances of the public records repositories’ staff always followed a similar pattern, as the efforts of the Ryleys in the Royalist cause make clear.) There was a dramatic divergence in character between the public records repositories, increasingly stores of ammunition in the struggle for liberty against the Crown, and the State Paper Office as the monarch’s private collection of arcana imperii, with its extremely narrow access regime (similar, though not identical, to that described by Müller for the arcana im-

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perii in the German-speaking lands of the early nineteenth century).⁴ This investigation has revealed the State Paper Office as a mechanism for political repression by the Crown, including espionage and the hoarding of documents concerning – or belonging to – political enemies. Ketelaar locates the pan-European early modern impulse towards official secrecy, in the English context, in the administration of access to the public records, but as the foregoing has shown, his description of highly restrictive regulation is actually applicable to the King’s secret archive.⁵ Despite the many eccentricities of the English archival world, it is worthwhile attempting to set it in a wider European comparative context. This conclusion essays a number of comparisons: archives and evidential requirements; archival organisation; the use of archives in contemporary political struggles and the outcomes of these conflicts for archives; and the role of archives-keepers in conducting policy research for government. Because the Continental – particularly the Germanic – archival context has been far more deeply researched than the English one, there has been a tendency to transfer the ius archivi with its probatio per archivum wholesale to England.⁶ In contrast to Continental Europe, research for this book has not uncovered any indication that in early modern England, the security of the archive in which a record was kept was an additional requirement for it to retain its evidential value in court – an insistence which came from the civil law tradition and in the seventeenth century led to significant power-political conflict within the Holy Roman Empire over who had the right to constitute an ‘archive,’ one of the indicators of state sovereignty.⁷ The official designation of ‘public archives’ (deriving from the Roman tabularium) as trustworthy repositories of legal records, and the detailed debate as to which repositories qualified, seem to have been missing in the English context.⁸ (As explained by Baldassare Bonifacio in his 1632 treatise De Archivis, “credence is obviously to be given to instruments produced from a public archives, and they make, as the jurisconsults say, full faith.”)⁹ Forgeries were also deplored in England, but the English answer appears to have been to trust in the proper enrolment of records, and painstaking cross-checking in exemplification, to prevent fal-

4 Müller, Geschichte Machen, p. 158 – 159. 5 Ketelaar, p. 346. 6 See, for example, Kate Peters, p. 157– 158. 7 Friedrich, Die Geburt des Archivs, p. 92 – 93. See also Friedrich, “Das Alte Reich und seine Archive im Spiegel reichspublizistischer und reichsrechtlicher Literatur.” 8 This Continental legal discussion is described in Head, “Documents, Archives, and Proof Around 1700.” 9 Born, “Baldassare Bonifacio and His Essay De Archivis,” p. 236 – 237.

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sification: indeed, in the debates leading up to the Petition of Right, the fact that the key 1592 case report had wandered into a private archival collection seems to have raised no issues as to whether it could still be presented in evidence. This would have been unthinkable in the German context, with its insistence that private archives did not qualify as trustworthy repositories.¹⁰ The sophisticated and widespread seventeenth-century European discourse on archives as essential State institutions lacked a counterpart in England (where archives were seldom described as such and were, indeed, often confused with libraries).¹¹ The gulf between civil and common law contexts and the former’s institutional focus, derived from the ius archivi as an expression and support of power, may help to explain Derrida’s vision of the ‘archive’ as an ordered, physically secure repository of documents reliably confined in a state of ‘domiciliation’ or ‘house arrest,’ presided over by a group of serenely privileged Establishment ‘archons’ with exclusive hermeneutic power – a vision of limited applicability to England.¹² As the foregoing has shown, English early modern archives were sites of considerable disorder, resistance, and dissent, with occasional irruptions of the Bakhtinian carnivalesque: the forays of the Dover tailors and the London fishmonger are two examples that spring to mind.¹³ Far from tidily regimented under ‘house arrest,’ English records often escaped and roamed freely across the country (or indeed to the Continent) like absconded day-release prisoners. The case of the English ‘public records’ (and here it is important to emphasise the use of the word ‘public’ in the sense of ‘open to the public’), particularly in the context of the research surrounding the Petition of Right, does, however, offer unexpected support to Derrida’s connection between archival access and democratisation.¹⁴ With the dissident

10 Head, p. 918; Friedrich, “Das Alte Reich und seine Archive.” 11 Friedrich, Die Geburt des Archivs, p. 99 – 100. 12 Derrida, “Archive Fever: A Freudian Impression,” p. 9 – 10. Derrida ostensibly derives this vision from Ancient Greece, but with a similar nexus between power and the right to constitute an archive. However, even for the context of the ius archivi and official secrecy, his theory is insufficiently differentiated when applied historically: Müller has shown (for nineteenth-century Bavaria) that subjects were able to access records for the purposes of protecting their own rights, an important counterweight to a general social powerlessness, and one which extended even to a limited right of access to ‘secret’ records, in order to prevent potentially violent private disputes over property. Müller, Geschichte Machen, p. 91 – 93, 97– 98. 13 It would be a mistake to suggest that English archives were unique in their chaos and bizarreness, however. Friedrich has also uncovered strange goings-on in early modern Italian notarial archives, including one individual who fed his pet rabbit on the documents. Friedrich, “Central control and local histories of record-keeping in early modern Italy,” p. 458 – 459; Die Geburt des Archivs, p. 170. 14 Derrida, “Archives Fever,” p. 10 – 11 fn. 1.

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role played by archival materials and archives-keepers in the Revolution, the English case also helps to illustrate Friedrich’s observation that, contra Max Weber’s theory of increasing rationalisation through bureaucracy, “the role of archives in the process of government and as tools of state power is much more complex than we have assumed […] they often were not facilitators of governance as much as sources of insecurity and ambiguity.”¹⁵ As shown by the expression ‘the public records,’ the English seventeenth-century focus was on the records themselves – whether their making had conformed to the formal requirements for a ‘record’ (and, for copies to be produced in a court of law, whether they had been exemplified correctly according to extremely exacting administrative procedures) – rather than on their institutional settings. Preservation was important to English archives-keepers because of the far more basic concern to prevent damage or theft of the precious records. The fact that the Attorney-General – on the direction or with the complicity of the Crown – tried to forge or destroyed records at various points in the controversy surrounding the Petition of Right (in the Five Knights’ Case, the printing of the Petition itself, and the subsequent court proceedings against the Parliamentary rebels) suggests that the Establishment was highly aware of records’ power, as does the Earl of Suffolk’s accusation that Selden had destroyed a record. Overall, however, the Crown was unsuccessful in deploying falsification in the cause of absolutism, due to the vigilance and legal record-keeping expertise of the Parliamentary side, especially Selden. French archivist Robert-Henri Bautier posited the late sixteenth and early seventeenth centuries as the turning-point in the formalisation and organisation of archives, during which period “archives came to be considered […] the ‘arsenal’ of the authorities.”¹⁶ This doctrine has come to be known as “the archival turn,” a watershed in archival history, as the growth of record-keeping fostered “the establishment of central governmental archives across Europe.”¹⁷ Bautier’s theory has been questioned in the contexts of Florence and the Spanish world, in which government archives developed much earlier, and, as the foregoing account has shown, England also conforms to this pattern to a limited extent.¹⁸ Parallels can be found in the development of an approach to policy formation based on documentary research in office archives by Royal advisors (under the influence of Parker’s example), as well as in the Crown’s consultation of research experts 15 Friedrich, “Epilogue: Archives and Archiving across Cultures ―Towards a Matrix of Analysis,” p. 424. 16 Bautier referenced in Guidi, “The Florentine Archives in Transition,” p. 469. 17 Silvestri, “Archives of the Mediterranean,” p. 436. 18 Guidi, p. 468; Silvestri, “Archives of the Mediterranean,” p. 436.

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such as Selden and Cotton and the establishment of the SPO to aid statesmen and diplomats. However, England was both advanced – in the sense that references to central government repositories can already be found in the reign of Edward I – and backward in that there does not seem to have been any sustained, coherent programme to rationalise these repositories. The ad hoc proliferation of the English archival ‘system’ seems to have occurred in fits of absence of mind rather than, as in the case of the fifteenth-century Aragonese Crown, as the result of strategic planning (albeit coupled with decentralised archival administration).¹⁹ The English Crown, of course, was not faced with the challenge of keeping control of territories scattered over a wide Mediterranean area.²⁰ A contrast to English muddle is also provided by the precocious Italian citystates, most notably Florence, and their famous early efficiency in bureaucratic and archival processes.²¹ Guidi shows that Florence’s archival transformation significantly preceded Bautier’s hypothetical turning-point, propelled by the military, diplomatic, and political demands brought by the Italian Wars which lasted from 1495 to 1550, and that one of its major proponents was Machiavelli, who formalised new documentary and archival procedures in the context of his creation of Florence’s militia.²² De Vivo, in the case of Venice, demonstrates how intensification of records cataloguing accompanied major political changes for the Republic: first to support an aggressive foreign policy, later to provide resources for a new reliance on diplomacy.²³ While the fifteenth century involved England in a number of military conflicts (such as war with Spain and rebellions in Ireland), these were far beyond its borders and lacked the ongoing existential threat, extraordinary diplomatic complexity, and breathless pace of the Italian Wars, which highlighted the city-states’ need to access reliable information quickly.²⁴ (The Spanish crisis did, however, have the effect of stimulating Elizabethan English nationalism and with it polemically patriotic works of historical research such as Camden’s Britannia.)²⁵ Nevertheless, it is noticeable that England’s Civil War and Revolutionary era, despite the destruction that it wreaked on various records repositories, also brought with it a heightened official anxiety to control records and prevent the opposite side from accessing them, as shown by Cromwell’s orders concerning the Tower repository and the persecution of William Ryley senior.

19 20 21 22 23 24 25

Silvestri, “Archives of the Mediterranean,” p. 450. Silvestri, “Archives of the Mediterranean,” p. 449. Guidi, p. 469 – 470. Guidi, p. 468. De Vivo, “Ordering the archive,” p. 242. Guidi, p. 470. Sharpe, Sir Robert Cotton, p. 11 – 12.

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James I was not the only early modern ruler to be antagonised by the Papacy’s secular claims. These also significantly irritated Catholic powers and provided an impetus for politically-motivated archival research, though this appears – in the example provided by Venice – to have been more thorough-going than that carried out by James I and his research assistants for the Premonition and Apologie. In the international diplomatic crisis precipitated by the Papacy’s Venetian interdict of 1606 against the Republic’s exercising of civil jurisdiction over Church interests, “Venice’s state archive” (the Biblioteca San Marco, which contained “a mix of legal, historical, and administrative archives”) furnished propaganda for the use of Paolo Sarpi, the Republic’s “de facto information minister,” who “published historical documents” in order to strengthen the Venetian case in the court of international public opinion.²⁶ In turn, Rome drew on its own archives for its ripostes to Venice.²⁷ The Venetian example shows a concentrated, prolonged, and strategic use of archives by the central government, mirrored in the English context more by the Parliamentary campaign against the Crown. Soll notes that Sarpi’s example demonstrated “how a state archive could be organized and used for political […] ends when a scholar was a leading state minister.”²⁸ A brief comparison with England’s most important rival is useful to highlight both the political uses of archives and the results of political upheaval for archives themselves. A marked and dramatic contrast in the first half of the seventeenth century is evident between England and France in terms of the developing relationship between the French Crown and the thirteen regionally distributed final appellate law courts known as the parlements, which claimed the ability “to revise, ratify, or even reject royal laws.”²⁹ (Interestingly, in the eighteenth century an origin was claimed for them in “the ancient judicium Francorum of the Frankish tribes.”)³⁰ Although France lacked a defined “mixed constitution” comparable to the English model of the Crown-in-Parliament, there was significant co-operation and mutual accommodation up until 1600, after which point the parlements increasingly struggled to avoid being subsumed by the monarchy’s absolutist turn.³¹ Unlike their English counterpart, the parlements were initially pliable: their “legal scholars” reached an “entente” which saw them surround “the absolutist crown” to serve the monarch “as state scholars, librarians, archivists, histori-

26 27 28 29 30 31

Soll, p. 20 – 21. Soll, p. 21. Soll, p. 21. Soll, p. 32; Encyclopaedia Britannica, “Parlements.” Encyclopaedia Britannica, “Parlements.” Soll, p. 28.

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ans, and diplomats.”³² A highlight of this involvement was the Gallican legal dissension of the early seventeenth century, in which parliamentary magistrates such as the Royal library-keepers the Dupuys used their archival research skills, collections of primary sources “and learned networks” to support proto-nationalist arguments for “French royal precedence” as against the Pope’s claims.³³ This battle involved “matching document with document in a historical propaganda war” with Rome.³⁴ Soll suggests that Grotius and Sir Robert Cotton were both inspired by the Gallican example.³⁵ There was, of course, latent tension in the parlements’ constitutional claims, but this conflict, provoked by increasing absolutism and fuelled on both sides by the citing of deeds and files, erupted somewhat later in the Fronde Rebellion of parlementaires and aristocrats from 1648 – 53.³⁶ There were parallels with England in the issues at stake: the Parlement of Paris demanded the right to approve taxes and the abolition of “arbitrary imprisonment.”³⁷ In both the English and French cases, the rebellions seem to have been spearheaded by jurists inspired by research in historical primary sources. The Fronde Rebellion had a very different outcome to its English counterpart.³⁸ The French Crown extinguished it and, because it had seen the danger to its interest posed by “The control of state archives by legal scholars,” it reacted by seizing control of both the parlements and the archives which had served the Fronde.³⁹ (The contrast with the cautious restored English Crown is striking.) Jean-Baptiste Colbert, who would develop informational absolutism in an all-encompassing system as Louis XIV’s First Minister, was delegated to carry out “what was effectively a coup d’etat.”⁴⁰ The French Crown recognised that relegating the parlements to constitutional insignificance “meant depriving them not only of political authority, but also of the very legal and political information through which they wielded and defined it.”⁴¹ The ruthlessness and efficiency of the way that Colbert used the French state’s information system to suppress dissent was admired and emulated by other absolutist monarchs and “enlightened despots” from the Prussia of Frederick the Great to the Russia of Catherine II.⁴² Colbert 32 33 34 35 36 37 38 39 40 41 42

Soll, p. 28, 32. Soll, p. 27– 28, 30. Soll, p. 27. Soll, p. 28. Soll, p. 32; Friedrich, Die Geburt des Archivs, p. 239 – 240. Encyclopaedia Britannica, “The Fronde.” Soll, p. 32. Soll, p. 32. Soll, p. 32. Soll, p. 32. Soll, p. 161.

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would also inspire twentieth-century totalitarian regimes with a case study which showed that “political absolutism and methods from critical scholarship could […] mutually serve each other,” and that “the world of learning” was not just “a source of public propaganda, but also […] a tool of secret government.”⁴³ Indeed, Soll makes the intriguing comment that in Colbert’s information system, which he describes as “an Encyclopedia of the state,” the Baconian dream of a “state research institute” to collect and monopolise scientific, trade, policy, and military information as a means of controlling the population in a proto-Hobbesian manner was finally realised.⁴⁴ (Contemplation of Colbert’s information and censorship system as described by Soll fosters the impression that there is something to be said for English archival muddle as a bulwark of individual liberty.)⁴⁵ Soll notes that Colbert was not emulated in non-absolutist England.⁴⁶ By the eighteenth century a totally different paradigm of constitutional, limited monarchy had triumphed in the Glorious Revolution of 1688 – 89, but this did not mean that archival chaos could persist forever. By the nineteenth century, the administrative side of a rapidly expanding empire “would increasingly demand the central and encyclopedic sort of archives developed by Colbert.”⁴⁷ There is, however, an arresting similarity between post-1650 France and pre1650 England, and that is the specific dossier aspect. Cotton’s work as an antiquarian researcher for James’s court was consistent with a wider European context: the Renaissance era had, in general, seen the development of a dependence by monarchs on “medieval legists and classical humanists” to unearth historical and legal justifications for current policy, so that a culture of historical research was used to legitimise authority.⁴⁸ (However, Soll’s reference to Cotton as ‘freelance’ does not capture the intensity and regularity of his activity for James in the early years, as described in this book.)⁴⁹ Colbert famously made policy dossiers which collected together and annotated (via memos) archival materials on particular subjects – such as France’s diplomatic relations with England – in order to enable him to write policy reports for Louis XIV.⁵⁰ This intensive archival research would inform Colbert’s leading of the actual “negotiations with England,” the documentation of

43 44 45 46 47 48 49 50

Soll, p. 6. Soll, p. 1, 97– 98. Soll, p. 2. Soll, p. 161. Soll, p. 161. Soll, p. 24 – 25. Soll, p. 28. Soll, p. 111 – 112.

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which, including the signed treaty, would be copied into the same portfolio.⁵¹ Colbert also used his archives in the ongoing battle against the Church over the French Crown’s right of Régale (taxing bishoprics and naming bishops), in which his “information system” allowed the King “to assert central royal authority” on a previously impossible scale: the Sun King’s “divine right” depended on “legal tradition” as contained in “episcopal and legal archives.”⁵² Colbert deployed his archival collections to further Louis XIV’s absolutism, while Cotton, despite his somewhat equivocal initial attitude to the Royal prerogative, is thought to have ultimately provided research assistance and precedents for the Petition of Right. He also never reached Colbert’s dizzy heights of prominence. However, there is a similarity between Colbert’s policy dossiers and Cotton’s earlier, thematic ‘Collections’ of documents which enabled him to propose ‘new’ legal (i. e. precedented) revenue streams to James.⁵³ There is also a marked resemblance to Sir Thomas Wilson’s compilation of (often unsolicited) advisory dossiers for the Crown and its servants, in which he sometimes briefed his sovereign on sensitive policy questions such as the Royal match. Colbert seems to have had a more comprehensive grasp of diplomatic papers, but Wilson, in a previous era, similarly realised their crucial potential to support the Crown and enhance his own prestige, and undertook great efforts to drive them into the SPO. In fact, Colbert had exactly the sort of job that Wilson dreamed of: the Frenchman was able to exploit archives to support Divine Right government and his own position as the second man in the State. Wilson, though he attempted to interest James in the State Paper Office’s political uses, floundered by comparison. His apparent lack of any proto-democratic instinct and his robust defence of absolutist imperial monarchy in The State of England suggest that he might instead have found his niche during Le Grand Siècle. (It is possible that his relentless promotion of the SPO and its holdings was inspired by his observations of far more powerful Italian and Spanish archives during his diplomatic career.) However, the era of Louis XIV and Colbert did not succeed in banishing the constitutional challenge from the parlements, which re-emerged in the following century, when parliamentarian jurists reclaimed the use of archival materials to demonstrate the right of the Parlement of Paris “to regulate the monarchy.”⁵⁴ In the mid-eighteenth century “the Parlement of Paris waged a relentless information campaign against the monarchy […] with the publication of medieval, feudal legal documents as ideological propaganda” in support of the parlements’ traditional 51 52 53 54

Soll, p. 112. Soll, p. 141. Kippis, p. 298 – 299. Soll, p. 160.

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rights.⁵⁵ Ultimately the French Crown was unable to defend itself, lacking “a trained corps of medievalist archival agents” to withstand “the parliamentarian onslaught of published historical remonstrances.”⁵⁶ It is instructive to compare the English with the later French Revolution and their very different outcomes for archives. It was perhaps precisely because the French Revolution had been frustrated by the crushing of the Fronde and postponed by the reign of Louis XIV that when it finally came, it rejected the argument from historical precedent and aimed self-consciously at an entirely new order. Indeed, as Oppermann notes, the dating of the emergence of constitutionalism to the Enlightenment, and in particular to the French Revolution, perpetuates a mistake made by the French revolutionaries when they claimed to have discovered human rights and the separation of powers; instead, in his view, the origin of modern constitutionalism is to be found in early modern England, particularly after the Glorious Revolution, and the French revolutionaries to a great extent reformulated historical English freedoms.⁵⁷ While it would be easy to uncharitably attribute their oversight to a specific anti-English chauvinism, it probably derives from their orientation away from historical precedent in general. This attitude was embodied in the principle of ‘reason,’ which reacted against the convention of accepting political notions on the ground of their venerability.⁵⁸ The deliberate departure from precedent was one reason why the French Revolution was in general bloodier and more extreme than the previous century’s English forerunner, while the losses for French archives, through deliberate destruction combined with neglect, were also far more harrowing. (One source relates that in Paris alone, 550 tons of records were destroyed.)⁵⁹ Indeed, the appointment of John Selden to protect the public records during the English Revolution, as a representative of the Parliamentary interest, is a marked divergence from the French case, although Royalists’ archives and libraries were targeted during the war. The French Revolution, however, also presented a contradictory archives policy: the destruction of Ancien Régime records documenting unjust feudal relations, alongside the drive to centrally collect documents and provide public access in the newly founded French National Archives (1790).⁶⁰ (The former would have delighted Hugh Peters and other seventeenth-century English legal system critics and horrified Prynne, and Sir Robert Cotton would have heartily endorsed the latter.)

55 56 57 58 59 60

Soll, p. 161. Soll, p. 161. Oppermann, “Konstitutionalismus.” Keith Baker, cited in Censer, Intellectual History and the Causes of the French Revolution, p. 546. Panitch, “Liberty, Equality, Posterity?,” p. 41. Panitch, p. 31 – 35, 39 – 41, 45.

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When viewed against the background of the English Revolution, the archival scene of the French Revolution – like aspects of its constitutional thought – looks even less like the great transformation portrayed by Posner, a thesis which Panitch calls into question on different grounds by highlighting various continuities with the previous era, most notably that archives in France continued to be viewed predominantly as repositories of legal records.⁶¹ (Furthermore, Ancien Régime archivists were still able to find opportunities in the new system.)⁶² This was, of course, similar to the English seventeenth-century understanding of the significance of records repositories. That the Reformation-era race for primary sources, embodied in the English case by the Parker project, did not culminate in a Colbertian all-encompassing state information system to provide “the basis of modern state administration” in England is attributable to the country’s very different political and constitutional trajectory.⁶³ In contrast to the French case, the persistence of a fundamentally muddled English archival system may be connected to the triumph of the Parliamentary interest in the seventeenth century. In a time before greater democratisation, the energy and resources for the enormous effort required to seize and organise archives on Colbertian lines could probably only have come from a victorious Crown intent on asserting its supreme power and repressing dissent. This hypothesis is supported by a number of archival incidents during the Stuart era, such as the seizure and cataloguing of Coke’s manuscripts and the Cotton collection. With the Glorious Revolution, this iteration of the English monarchy was definitively consigned to the past. The extraordinary mildness of the Glorious Revolution also suggests why there was apparently no impulse from the proto-democratic side towards national centralisation and rationalisation of the sort seen in the later French Revolution.⁶⁴ Having asserted itself through non-violent means and with comparatively minimal effort, the Parliamentary interest clearly did not feel a similar drive to officially break with the past by destroying records and establishing a self-consciously modern national archival institution like that of France. Given that reform and revolution in England were predicated on the ‘Ancient Constitution’ rather than rupture, such vandalism would, indeed, have threatened the constitutional settlement. The English Revolutionary movement of the seventeenth century was in fact a re-vol-

61 Panitch, p. 33, 43; Posner, “Some Aspects of Archival Development since the French Revolution.” See also Müller, Geschichte Machen, p. 20 – 21. 62 Friedrich, “Being an Archivist in Provincial Enlightened France,” p. 572; Friedrich, “The Rise of Archival Consciousness in Provincial France,” p. 68. 63 Soll, p. 145. 64 Cadell, “Les archives et l’identité nationale en Angleterre et en Écosse,” p. 706.

450

Conclusion: English archives and the wider European context

ution, a return to the sources, as underlined by the central role of archival research in the profoundly historicist constitutional debates. (If the Fronde Parliamentarians had not been frustrated in their rebellion in defence of principles based on historical precedent, perhaps a seventeenth-century French Revolution would have taken a very different, less radical and iconoclastic form, and more archives would have survived.) The centrist Whiggishness which emerged from the Glorious Revolution no doubt also played a part in the continuity of English archives: a nation can only keep congratulating itself on how far it has progressed if it does not destroy the evidence of the distance travelled. On the other hand, there was no need to stir up clouds of dust by embarking on the massive effort involved in establishing a national archive after the Glorious Revolution – the nationalisation of the Cotton collection was probably enough of an official gesture. Britain’s run of good fortune continued when it later resisted Napoleonic conquest, a threat which, in the German realms, led to a deliberate excavation of German history and a greater engagement with organising archives.⁶⁵ In England, by contrast, the records continued to slumber in complacent disarray (despite sporadic attempts to rescue them) until the Public Records Act of 1838. Cadell finds, in the English attitude to archives, an expression of stereotypical phlegmatic pragmatism: archives were necessary to good administration, but not a symbolic focus for un-English romantic nationalism, unlike in numerous Continental countries struggling to re-assert themselves in the face of Napoleonic conquest (or in a Scotland trying to maintain its identity as against its neighbour).⁶⁶ However, as this book has shown, this is not the whole picture. It leaves out the reverential English attitude to ancient records themselves. The common-law mentality coloured perceptions of the records as objects of desire, fetishising precedents and statutes as the incarnations of traditional English liberties, while the worshipping of these precious records in turn helped the common law and its gentry practitioners on their ascendant course. Possession of ancient records conferred great social prestige on the antiquarian- and legal-minded elite, so that the seizure of records collections correspondingly represented a traumatic loss of status. Records were treasured, rescued, exchanged, stolen, hunted down, given as gifts, copied, exemplified, annotated, and bound up into books to better protect them. The records were the symbols. Verschaffel suggests that “Throughout English history archives have never been really threatened and therefore also have […] not been the object of great at-

65 Verschaffel, “The creation of national archives in nineteenth-century Europe,” p. 30. 66 Cadell, p. 705, 710 – 712.

Conclusion: English archives and the wider European context

451

tention, careful organization and centralization.”⁶⁷ However, as the examination of the Civil War period in this book has shown, the first part of this statement is overly positive, while the latter remark does not do justice to the engagement of lone arrangers such as Prynne. Instead, it is rather the case that – following the trauma of the Norman Conquest – England was not seriously threatened. This contrasted with the case of Scotland, frequently in danger from its more powerful neighbour (who, as has been shown, abstracted Scottish archives and failed to return them).⁶⁸ In these difficult circumstances the Scots focussed early on preservation and centralised storage of the national records.⁶⁹ This was a trend which, according to Cadell, began in the fifteenth century, contrasting with the overall neglect of archives south of the border.⁷⁰ It was an existential issue not just for Scottish records but also by extension for Scotland itself. However, the Scottish civil law tradition no doubt also influenced the concern for secure archival storage: this is suggested by Cadell’s comment that “A partir du 16 siècle on accepta le principe que les documents transcrits dans de régistres […] et que l’on garderait à Édimbourg […] seraient de plus grande autorité probante que le document original.”⁷¹ (Emphasis added.) Hall lamented the contrast between the disorder of English archives and what he saw as their admirably regimented Continental counterparts, without considering the reasons for this regimentation.⁷² Apart from the different evidential requirements of civil versus common-law systems, Continental powers could not afford to muddle through in the face of manifold political and military threats. Archival chaos can ultimately be seen as a measure of England’s comparative good fortune in escaping existentially threatening wars (unlike the Italian citystates) and achieving a less traumatic transition to modernity than that of France, based on a narrative of continuity and revival rather than rupture. The Whig historians – had they been inclined to pay archives a little more attention – would no doubt have reached a similarly uplifting conclusion.

67 68 69 70 71 72

Verschaffel, p. 30. Cadell, p. 711. Verschaffel, p. 30. Cadell, p. 706. Cadell, p. 710. Hall, p. 6 – 7.

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Biographical note Isabel B. Taylor obtained a Bachelor’s degree in History (with minors in French and German) from Mount Allison University in 2007, a Graduate Diploma in Law (Common Professional Examination) from the University of Northumbria in 2010, a Master of Archival Studies from the University of British Columbia in 2013, an LL.M from the University of Tübingen in 2014, and a doctorate in legal history from the University of Tübingen in 2023. She has been working in the German state archival sector since 2014, first in the Landesarchiv Baden-Württemberg and (since 2021) in the Landesarchiv SchleswigHolstein. In her free time she enjoys editing Albion Magazine Online, which she founded in 2004. She has previously published on archival appraisal theory, data protection, and comparative minority rights law.

https://doi.org/10.1515/9783110791464-038

Index of Persons Abbot, George (Archbishop of Canterbury) 424 Abbott, Edward 344 Aelfric 161 Agarde, Arthur 7, 13, 26 – 27, 30 – 32, 36 – 37, 47, 55 – 61, 64, 73, 75, 82, 102, 120 – 121, 132, 148, 150, 152, 184 – 185, 345 – 346 Albinus of Canterbury 15 Alexander VII (Pope) 288 Alfred the Great 41, 126, 163, 261 Allen, Thomas 120, 247 Alley, Emanuel 141 Amice, Israel 329 Anderson, Edmund 258 Anne, Queen 115, 126 – 127 Arlington, Earl of 415 – 416 Ashmole, Elias 155 Asser 126, 163 Athelstan 227 Aubrey, John 4, 39 – 40, 45, 119 Audley, Hugh 99 Augustine of Canterbury 159 Avery, Dudley 408 Ayloffe, Sir Joseph 13, 16, 20, 37, 41 – 43, 59, 72, 74 – 75 Ayloffe, William 112 – 113 Ayremynne, Richard de 68 Ayremynne, William de 68 Bacon, Sir Francis 80 – 81, 137, 169, 173, 198 – 199, 209, 221 – 222, 224, 248 – 249, 252, 254, 290 fn 31, 348 – 349, 425, 446 Bacon, Nathaniel 192 Baker, Augustine 123 Baldock, Robert de 68 Bale, John 39, 159 – 161, 167 Ball, George 141 Bankes, Sir John 265 Bastwick, John 291 Bautier, Robert-Henri 442 – 443 Baxter, Thomas 343 Beale, Robert 32 – 33, 164 – 165, 339 Beaufort, Henry 12 Becket, Thomas 247 https://doi.org/10.1515/9783110791464-039

Beckwith, Richard 263 Bede, the Venerable 13, 15 – 16, 169, 246 Bedford, Earl of 233 – 234 Ben-Israel, Menasseh 300 Bennett, Sir John 123 Bingley, Sir John 360 Black, William Henry 35 fn 72, 62 Bodin, Jean 181, 195, 293, 373 Bodley, Sir Thomas 125 Boleyn, Anne 30 Bonifacio, Baldassare 440 Borough, Sir John 77 – 78, 311 – 312, 317 – 318, 324 Boswell, Sir William 234 – 235, 383 – 384, 399 – 400, 404, 412 Bowyer, Sir John 110 Bowyer, Robert 77, 121, 124, 208, 216 – 217 Bowyer, Sir William 72 – 74, 302 – 303 Bradshaw, John 405, 408 – 409, 411 – 412 Brady, Robert 115, 136 Branthwaite, Dr William 357 fn 45 Brathwaite, Thomas 378 fn 6 Brooke, Sir Basil 319 Brown, John 96, 107 Browne, Sir Richard 377 – 378 Burke, Edmund 243 Burnet, Gilbert 349, 435 – 436 Burstall, William de 71 Burton, Henry 291 Busby, Dr Richard 324 Butterfield, Herbert 136, 200 Button, James 158 Cabot, John 37 Cade, Jack 299 Caesar, Julius (Roman emperor) 245 Caesar, Sir Julius 329 fn 16, 335 – 336 Caley, John 40 Calvert, Sir George 253, 370, 382, 385, 394, 396, 425 – 426 Camden, Lord (Charles Pratt) 203 Camden, William 73, 172, 180, 182, 184 – 185, 211, 240, 430, 443

474

Index of Persons

Canute 246 Carew, Lady 396 Carew, Sir Robert 220 – 221 Carleton, Dudley 382, 392 – 395, 400 – 401 Carlisle, Earl of 354, 356 Carter, Francesco 176 Carr, Robert (Earl of Somerset) 218 – 222, 234, 379, 381, 394 fn 51, 419 – 424 Carteret, Sir Philip 291 Catesby, Robert 57, 380 Catherine II of Russia 445 Cecil, Robert (1st Earl of Salisbury) 120, 166, 218, 245, 249, 328 – 331, 333 – 334, 341, 348 – 349, 357, 382 – 383, 394, 430 fn 53 Cecil, William (Baron Burghley) 163, 172, 184, 382, 430 fn 53 Cecil, William (2nd Earl of Salisbury) 225 Ceolwulf 169 Chambert, Lord 354 Charles I 30, 70, 77, 81, 85, 98, 110, 171, 173, 177, 199, 203 – 204, 206, 211, 219, 225, 227 – 234, 236 – 237, 255, 264, 269 – 282, 284, 290, 292, 297, 317 – 319, 329 fn 16, 336, 364 – 367, 382, 397, 399 – 402, 404 – 407, 412, 414, 426, 434 Charles II 12, 97, 103, 105, 108 – 109, 111, 286, 297, 308 – 311, 317, 320 – 321, 328, 409 – 411, 414, 416, 432 – 436 Cherbury, Lord 430 Christian IV of Denmark 251, 385 Clare, Earl of 233 – 234 Clarendon, Lord 402 Cliff, Henry de 68 – 69 Coke, Sir Edward 3, 6, 28, 42, 57, 70, 84, 88, 123, 131, 139, 142 – 143, 145, 155, 166, 172 – 173, 177, 187 – 191, 194 – 207, 210 – 211, 213, 221 – 223, 225, 231, 233, 242, 248, 253, 255 – 256, 258, 261, 264, 266 – 270, 273 – 274, 276 fn 283, 303 – 305, 307, 314, 329, 369, 380 – 381, 401 – 402, 439, 449 Coke, Sir John 266, 402 – 404 Colbert, Jean-Baptiste 175, 445 – 447, 449 Colby, Christopher 80 Cole, Henry 27, 51 Collingwood, Edward 342 Conti, Prince of 429

Conway, Sir Edward 329 fn 16, 336, 340, 345, 383, 424, 428 fn 36 Cordell, Sir William 73 – 74 Cotingham, Robert de 66 – 67 Cotton, Sir John 125 – 126, 237 Cotton, Sir Robert 3, 22 – 23, 37, 41, 44, 55, 60, 118 – 127, 131, 133, 139, 152 – 153, 163, 165, 171, 175, 177, 179, 181 – 188, 201, 203 fn 68, 204, 206, 210 – 241, 246 – 247, 254, 256, 261, 277, 279, 283 – 285, 290, 302 – 304, 307, 314, 316, 327 – 328, 336, 345 – 346, 362, 379 – 380, 400, 418, 424, 426, 429 – 430, 437 – 439, 443, 445 – 450 Cotton, Sir Thomas 125, 283, 338 Courcy, Lord 424 Cowley, Widow 344 – 345 Cranfield, Sir Lionel (Earl of Middlesex, Lord Treasurer) 361, 379 Cromwell, Oliver 97, 100 – 103, 105 – 106, 108, 169, 282, 284 – 285, 295, 299 – 300, 308, 310, 320, 324, 406 – 408, 411, 443 Cromwell, Richard 308 Cromwell, Thomas 22, 195, 338 Cundall, Arthur 424 Curwen, Robert 140 – 141 Dackombe, Sir John 156 Davies, Sir John 143, 184, 203, 371 – 376 Davison, William 379 Dee, John 119 Denham, Sir John 80 Denmark, Anne of ( James I’s consort) 218, 392 Dering, Sir Edward 44 – 45, 75 fn 62, 153, 236 Derrida, Jacques 2, 441 Devereux, Robert (2nd Earl of Essex) 75 – 77, 172, 429 Devereux, Robert (3rd Earl of Essex) 406 D’Ewes, Paul 33 D’Ewes, Sir Simonds 33, 91, 95, 235, 379 Digges, Sir Dudley 261, 266 – 268, 270, 276 fn 283 Dodsworth, Roger 40, 153 Donne, John 240 Downes, Dudley 29 Drayton, Michael 247 Dudley, Sir Robert 232 Dugdale, Sir William 38, 40, 151, 283

Index of Persons

Dun, Sir Daniel 362 Dyer, James 73, 188 Eadmer 253 Edward the Confessor 170 Edward I 17, 43, 66 – 67, 103, 182 Edward II 67 – 69 Edward III 17, 69 – 71, 428 fn 36 Edward VI 45, 72, 116 Eliot, Sir John 202, 222 – 223, 231 – 232, 234, 258 – 259, 274, 276 – 277 Elizabeth I 60 – 61, 72 – 77, 81 – 82, 116, 138, 161, 163 – 164, 169 – 172, 181 – 182, 194, 196, 200, 211 – 212, 218, 335, 338, 341 – 342, 368, 385, 393, 425, 429 Elsynge, Henry 77, 79, 92, 124 Elton, G R 21 – 22, 56, 122, 133, 194 – 195 Erasmus 158 Esnault, Maturin 155 Ethelbert 261 Eton, Richard 72 Eusebius 162 Evelyn, John 377, 435 Everard, Dr John 176 Evesham, Thomas de 71 Exeter, Bishop of 142 fn 14, 339 Fabian, Peter 34 – 35 Fairfax, General 294, 318 Fawkes, Guy 30, 329 Ferris, Henry 424 Ferrour, John 80 Filmer, Sir Robert 295 – 299 Fisher, E W 430 fn 53 FitzNeal, Richard 13 – 15 Fletcher, Giles 172 Floyd, Edward 223 – 224, 253 Ford, Luke 329 fn 16 Fortescue, John 188 – 189, 199 – 200, 248, 264, 388 Foucault, Michel 2, 87 – 88 Fountaine, John 105 Fox, George 87 Foxe, John 160, 167, 173 Francis I of France 60 Francis, George Grant 18 Frederick V of the Palatinate 199, 386

475

Frederick the Great of Prussia 445 Friend, John 80 Fuller, Thomas 153 – 155 Gibbon, Edward 133 Giles, Sir Edward 276 fn 283 Godfrey, Thomas 142 Gondomar, Count of 219 – 221, 394 Gregory X (Pope) 63 Green, Mary Anne Everett 134 fn 23 Greville, Fulk 170 Greville, Sir Robert 90 Grey, Lady Jane 116 – 117 Grimston, Sir Harbottle 112, 311 Grotius, Hugo 251, 445 Grymes, William 35 Gurney, Sir Richard 94 Habernfeld, Andreas ab 400 Hakewell, William 252 Hakewill, Sir Robert 266, 274 Hale, John 344 Hales, Edward 72 Hampden, Sir Edmund 255 – 256 Harding, John 336 Hare, Robert 154 Harley, Robert 114 Harris, Robert 72 Harris, Rowland 72 Harwood, Sir Edward 392 – 393 Hawkins, Edward 80 Hayward, Sir John 172 – 173 Heath, Robert (Attorney-General) 8, 233, 256, 265 – 267, 275, 277 – 279 Heaton, Richard 141 Hengham, Ralph de 249 Henrietta Maria (Queen) 227, 290, 405 Henry, Prince of Wales 120 Henry II 11 Henry III 41, 46, 63, 218 – 219, 228 Henry IV of France 333 Henry V 12, 428 fn 36 Henry VI 23 Henry VII 37, 60 Henry VIII 21 – 23, 35, 39 – 40, 60, 113 – 114, 159, 166, 172, 182, 195, 204, 339 – 340, 430 Herbert, Edward 277

476

Index of Persons

Heyman, Sir Peter 276 fn 283 Hobart, Sir John 123 Holinshed, Raphael 371, 374 Hooker, John 45 Hotman, Francois 244 Hoton, Robert de 68 Howard, Catherine 30, 339 Howard, Henry (Earl of Northampton) 120, 180, 212, 218 Howard, Thomas (Earl of Arundel) 223, 228, 279 Howard, Thomas (Duke of Norfolk) 22 Howell, John 142 Hume, David 133 Hunscott, Joseph 175 Hutchinson, Colonel John 90 Illyricus, Matthias Flacius 160, 163 Isabella of France 18 James I 78 – 81, 125, 143, 145, 158, 166, 171 – 173, 175 – 176, 179 – 181, 183 – 184, 189 – 190, 195 – 196, 198 – 201, 206, 208, 211 – 226, 228, 232, 244 – 245, 250 – 254, 271, 292, 328, 330 – 334, 336 – 337, 343 – 346, 348, 350, 353 – 356, 358 – 364, 366 – 372, 376, 378 – 379, 381 – 382, 384 – 387, 390 – 397, 414, 419 – 432, 444, 446 – 447 James II 192, 237 James, Richard 120, 165, 234 James, Thomas 123, 156, 165, 287 Jermyn, Lady 107, 109 Jermyn, Sir Thomas 108 Jessop, William 107, 412 Jewell, Melancthon Thomas 339 John (King) 41, 44, 247, 312 John II of France 23 Johnson, James 329 Jonson, Ben 240, 242 Keatinge, John 413 Kent, Countess of 251, 279 Kent, Earl of 251, 279 Kildesby, William de 71 Kinsale, Viscount 424 Lake, Sir Thomas 329 fn 16

Lambarde, William 61, 75 – 77, 120, 138, 164, 169, 184, 188, 203 – 204, 246, 381 Langeton, John de 17, 66 Laud, Archbishop 109, 279 – 281, 283, 289 – 291, 294, 300, 400 Lawton, John 29 Leicester, Earl of 377 Leland, John 159 – 160, 167 Le Moine, Pierre-Camille 311 Le Neve, Peter 28, 36 – 37 Lennox, Duke of 141, 353 – 355, 357 Lenthall, William 318 L’Estrange, Roger 363 fn 91, 435 Ley, Sir James 370 Lilburne, John 86 – 87, 173 – 175, 205 Lisle, Lord 83 Littleton, Edward 261, 263, 267, 278 Locke, John 131 fn 1 Long, Walter 107 – 108 Louis XIV of France 175, 227, 445 – 448 Lowe, John 36 – 37 Ludlow, Edmund 412 Luke, Oliver 336 Lumley, Lord 76, 120 Machiavelli 36, 170 – 171, 443 Madox, Thomas 136 Maitland, F W, 43, 131 – 132, 311 Mallett, Michael 113 Malmesbury, William of 246 Manchester, Earl of 235 Manhood, Sir Peter 430 – 431 Mansell, Sir Robert 265 Martin, Lucy 336 Mary I 161 Matilda (Empress) 37 May, Sir Algernon 115 May, Sir Humphrey 258 Mead, Matthew 400 – 401 Mearne, Samuell 436 Mildmay, Sir Walter 338 Milton, John 140, 178, 192, 289, 405 – 406, 408 – 409, 411 Monck, General 105, 308 Montagu, Sir Henry 123 Mountague, Bishop 123, 251 More, Sir Thomas 30, 58

Index of Persons

Morley, Caleb 141 Morton, Albertus 382 Muddiman, Henry 410 fn 12 Munck, Levinus 329 – 330, 341 – 342, 358 Myles, Henry 80 Naunton, Sir Robert 333, 342, 354, 359, 381, 385, 389 – 393, 395, 398, 429 Nedham, Marchamont 106 Nero 173 Nicholas, Sir Edward 401 – 402, 405 Nicolas, Sir Harris 367 Northumberland, 9th Earl of (Henry Percy) 390 Northumberland, 10th Earl of (Algernon Percy) 280 Nothelm 15 Nye, Philip 300 – 301 Oates, Titus 435 Olivares, Count-Duke of 225 Ormond, Earl of 429 Osgodeby, Adam de 66 – 67 Overbury, Sir Thomas 219 – 220, 379, 381, 394 fn 51, 419 Overton, Richard 262 Owen, George 152 – 153 Palgrave, Sir Francis 61, 134, 315, 385 Parker, Sir John 82 – 83 Parker, Matthew 160 – 167, 180, 186, 377, 442, 449 Parsons, Robert 333, 368 – 369 Peacham, Edmond 177, 381 Pelham, Henry 223 Pembroke, Earl of 279, 295 Pepys, Samuel 4, 105, 308 – 309, 315 – 317, 414 Percy, Thomas 380 Perrott, Sir James 371 Peters, Hugh 80, 85 – 88, 109 – 110, 113, 154, 282, 301 – 302, 313, 448 Petyt, William 115 – 118, 416 Pexall, Ralph 72 Phelips, Robert 257, 275 – 276 Phelps, John 110 – 111, 414 Philip II of France 21 Philip II of Spain 158 Pickering, Thomas 156

477

Plummer, Thomas 414 Popham, Alexander 407 Powell, Thomas 13, 32, 36, 42, 47, 53, 58 – 59, 145 – 150, 152 Prise, Elizabeth 433 Prise, Sir John 160 Prise, Thomas Arden 433 Proby, Peter 78 – 79, 218 Prynne, William 3, 12, 37 – 38, 42, 61 – 62, 82, 85, 109 – 110, 114 – 116, 123, 131, 139, 151, 162, 166, 169, 173 – 175, 179, 188, 205, 240, 243, 254, 272 – 273, 286 – 317, 320, 322, 324, 327 – 328, 438 – 439, 448, 451 ‘Pseudo-Ingulf,’ 41 – 42, 246 Pulton, Ferdinando 124 Pye, Sir Robert 360 Ralegh, Lady 391 – 394, 396 – 398 Ralegh, Sir Walter 30, 171, 184, 197 – 198, 215, 219, 221, 333, 335, 380 – 381, 388 – 398 Randolph, Ambrose 342 – 343, 345 – 346, 358, 362, 399, 404 – 406, 409 Randolph, Thomas 342, 362 Ranke, Leopold von 438 Raymond, Thomas 356, 399, 404 – 405, 409, 412, 432 Reynell, Sir Carew 334 Rich, Edward 111 Richard I (Lionheart) 20, 132 Richard II 17, 76, 169, 172, 218 Rokewood (Rookwood), Lord Ambrose 329 fn 16 Rolle, John 276 Rupert, Prince 435 – 436 Ryley, Francis 414 Ryley junior, William 4, 42 – 43, 91, 315, 317 – 318, 320 – 324, 415 Ryley senior, William 4, 78, 91, 95, 100 – 101, 154 – 155, 315, 317 – 321, 324, 443 Rymer, Thomas 64, 123, 155 Sadler, John 192 Salwey, Humphrey 99 Sarpi, Paolo 444 Savile, Sir Henry 125 Scobell, Henry 96 – 97, 99, 105 – 107, 405

478

Index of Persons

Selden, John 3, 23, 41, 78, 82 – 84, 90 – 91, 95, 100 – 101, 109, 119 – 120, 123, 125, 131 – 132, 135, 139, 151, 154, 158, 162, 176 – 177, 179, 184, 187 – 189, 200, 204 – 205, 209 – 210, 222 – 223, 226, 231, 233 – 234, 238 – 286, 288, 290, 294 – 295, 298, 300, 302, 307, 314, 316, 318, 321, 324, 327 – 328, 330, 388, 438 – 439, 442 – 443, 448 Seymour, Sir Francis 276 fn 283 Shakespeare, William 76, 159, 169, 306 Shrewsbury, Countess of 390 Sibthorpe, Thomas de 68 Singe, William 72 Skinner, Daniel 406 Smith, Dr Thomas 237 Smith, Sir Thomas 6, 364 Spelman, Sir Henry 182, 187 – 188, 236 Squier, Scipio le 101 – 102 St Albans, Earl of 430 St Barbe, Ursula 339 St John, Oliver 233 St Paul, John de 70 Stafford, Edward 73 Stafford, Sir Henry 72 Stapledon, Walter 67 Starkey, Ralph 379 – 380 Stephen (King of England) 37 Stowe, John 73 Strafford, Earl of, see Wentworth, Sir Thomas Strangways, Sir John 273 Strickland, Walter 407 Stuart, Arbella 380 – 381, 388 Stuart, Mary (Queen of Scots) 164, 213 – 214, 342, 378 fn 6 Stukeley, Sir Lewis 396 Suffolk, Earl of 264 – 265, 442 Sunderland, Earl of 435 – 436 Surab, John 319 Tacitus, Cornelius 170 – 171, 173, 191 – 192, 245, 261, 351, 370, 372 fn 30 Tate, Francis 210, 216 – 217 Tate, William 329 fn 16 Thoresby, John de 71 Thou, Jacques Auguste de 125, 213 Throckmorton, Sir Nicholas 377 Thurloe, John 405, 409, 411

Tint, Captain William 434 – 435 Trumball, William 428 – 429 Tucker, John 356, 410 – 411 Twyne, Brian 154 – 155 Tyler, Wat 299 Valla, Lorenzo 249 Van Male, Jean-Baptiste 427 – 429 Vane, Sir Henry 233, 399, 404 Vaux, Lord 329 fn 16 Villiers, Christopher 334 Villiers, George (1st Duke of Buckingham) 165, 198 – 199, 202, 222, 224 – 233, 237, 251, 255, 275, 280, 333, 336, 348 – 350, 353 – 354, 360, 362 – 363, 366, 383, 424 – 428 Villiers, George (2nd Duke of Buckingham) 433 Villiers, Sir John 198 Vowell, John 371 Waller, Sir William 308 Walsingham, Sir Francis 163 – 164, 339 Walsingham, Thomas 374 Waltham, John de 71 Warde, Richarde 37 Warwick, Countess of 75 Wath, Michael de 69 – 71 Weber, Max 442 Wentworth, Sir Thomas (Earl of Strafford) 206, 258, 260, 268, 281 White, Gilbert 137 – 138, 183 Whitlocke, Bulstone 282 Wilbraham, Sir Robert 361 William of Orange 116, 125, 127, 192, 436 William I 13 – 15, 246 – 247, 374 Williams, Robert 307 Williamson, Sir Joseph 110, 322 – 323, 355, 363, 399, 405, 409 – 416, 430, 432 – 436 Wilson, Margaret 366 Wilson, Dr Thomas 330 Wilson, Sir Thomas 4, 22, 25, 31 – 32, 35 – 37, 57, 61, 81, 83, 120 – 122, 125, 144 – 145, 164, 171, 201, 203 – 204, 206, 215, 220 – 221, 233, 327 – 371, 374, 376 – 405, 409, 412, 414, 418 – 430, 432, 439, 447 Windebank, Sir Francis 401 – 402, 405 Winstanley, Gerrard 86, 192 Winwood, Secretary 346, 379, 381 – 382

Index of Persons

Withers, Robert 142 fn 14 Wolsey, Cardinal 21 – 22, 57, 219 Wood, Anthony 316 Worcester, Lord 351 – 352, 354 Worrall, Dr Thomas 174 Wotton, Sir Henry 377

Wren, Sir Christopher 28 Wright, John 401 Young, Patrick 39 Zouch, Lord

329 fn 16

479