The Penguin History of Britain: New Worlds, Lost Worlds:The Rule of the Tudors 1485-1630 (29 page)

Since the thirteenth century relations with Scotland had been regulated on the borders by March laws, an archaic collection of dooms and treaties, scarcely codified; the only Anglo-Scottish law. On days of truce the English Warden of the March and his Scottish counterpart exchanged those who had offended the laws of either kingdom. At the day of truce held in 1541 by Sir Thomas Wharton and Robert Lord Maxwell, the murderers of three Armstrong brothers appeared, still with blood on their faces. Those offending within the English liberties of Tynedale and Redesdale were tried by baronial courts and laws; part equity and part local custom. But the itinerant royal justices at sessions of oyer and terminer, where they were empowered to ‘hear and determine’, tried offenders too, for in these frontier zones, despaired of as lawless in Newcastle as well as in distant London, it mattered little how culprits were condemned, so long as they were.

On the borders of Wales, within each marcher lordship, the lord had legislative power and virtual judicial omnicompetence. Royal justice did not hold there. Law in the Marches was still governed by Welsh concepts into the fifteenth century and beyond, and these, as in Ireland and Scotland, were radically different from those of England. The distinction between criminal and civil cases, which lies at the heart of English common law, was not yet recognized in Welsh law, nor in Irish or Scottish. There neither manslaughter, nor even wilful homicide, were, strictly speaking, crimes, whereas in England, by the thirteenth century, homicide like other felonies was a crime against the community, to be judged in royal courts: the prerogative to punish belonged to the public prosecutor, and no compensation between wrongdoer and victim could affect this. In England, the kin of the victim could prosecute the murderer but had no further right. Not so in Gaelic Ireland, nor in Wales and Scotland, where it was the kin, whose peace had been broken, and to whom reparation was due, who sought settlement. Injury to the victim – whether deliberate or accidental; little distinction was at first drawn – would never be considered an offence against the whole community until a social conscience more powerful than a kin conscience developed, and this was impossible while a weak executive administered uneven
justice. In post-conquest Wales the law of
galanas
– the blood feud and its settlement – lived on. The principle of compensation was fundamental to the justice of the feud, wherever it still operated; in Scotland, Gaelic Ireland, the Northern Marches and Wales, but no longer in England. Justice was not always seen as retributive; what was sought was the return of peace to two warring families by compensating the kin for its loss.

Observing different kinds of justice, which he did not recognize as justice, operating within his imperial jurisdiction, Henry VIII determined that English common law should be extended throughout his dominions. He wrote in 1520 that ‘realms without justice be but tyrannies and robberies’. In 1536 independent jurisdictions were dissolved, and the great liberties of the North, even the county palatine of Durham, were opened to royal criminal justice. Four years later sanctuaries, too, were abolished, and all the liberties and franchises of dissolved monasteries were vested in the Crown.

Henry VIII believed that Welsh March laws were ‘sinister usages and customs’, imposed by marcher lords as yet another aspect of their ‘thraldom and tyranny’. In 1536 the power of the Welsh marcher lords was broken. Union between England and Wales was created by statute in 1536 and 1543: constitutional reform of the greatest consequence. The principality of Wales and the marcher lordships were amalgamated into twelve shires, and English county administration was extended to Wales. The new shires and county boroughs were now to elect and send twenty-four members of parliament to Westminster. Every distinction in legal status between the King’s subjects in England and Wales was removed. In 1543 it was enacted that English rules of tenure and inheritance must replace Welsh ones. In order to introduce common law into Wales, courts of great sessions – county sessions held twice yearly – were established. The Council in the Marches of Wales, which acted as a Welsh Privy Council and Court of Star Chamber, enforced English law throughout Wales and on the borders with England. In Wales it was clear that the landowners were not so attached to the native culture that they would be unable to accept English law. Not so in Ireland.

For Henry VIII and all Tudor monarchs after him the best hope for the reform of Ireland and of its advance to civility lay in the extension of English common law throughout the island. This would be an uphill task. English kings had once claimed that their law was law throughout Ireland –
una et eadem lex
, one and the same law – and extended its
benefits to free-born Irishmen. But by the fifteenth century the English common law operated only in Crown territories, and there uncertainly, and the Irish were usually denied access to it. Without royal judges there could be no royal justice, and none had been sent to Munster or Connacht after 1400. The king’s writ did not run in the great liberties of the feudatories, and there, on the marches with the Irishry, either English law or Gaelic law, or a march law which was a hybrid of the two, were used. The 9th Earl of Kildare applied either law as ‘he thought most beneficial, as the case did require’. Pragmatism prevailed. As Kildare told Wolsey, those safe in England little knew how necessary it was ‘for every noble man in Ireland to hamper his uncivil neighbours at discretion, wherein if they waited for process of law… they might hap to lose their own lives and lands without law’.

Gaelic Ireland had its own ancient legal system, the brehon law. One English justice admitted that, although alien to common law principles, it worked: ‘divers Irishmen doth keep such laws which they make upon hills in their country… without breaking them for any favour or reward’. In Gaelic and Gaelicized Ireland every area had its own official judge, a brehon, from a hereditary lineage of jurists, who heard cases in public, usually upon a hill, and awarded arbitration. They had their immemorial brehon law codes, but Roman law too influenced their judgements. There was no system of public, criminal law, and the principles upon which brehon law was predicated – compensation and kin responsibility – were ones which the English common law opposed. In English law sanctions were applied to the guilty party, not to his kin; to his person, not to his property. In Ireland crimes such as thefts were simple torts, wrongs whereby the injured person acquired a right of action for damages, and resolution came by the payment of compensation.

An ancient system of ransoms and indemnity payments lay at the heart of Irish secular law. Ransoms –
éirics
or
sautes
for murder or manslaughter;
cáin
for theft or felony – were awarded by the brehon, according to what the offence deserved or what the perpetrator could pay. The greater the person wronged, the greater the compensation due. In the 1530s the brehon appointed by Lady Katherine Power ordered a ransom of five marks for stealing a sheep and the same for drawing blood; twenty shillings for drawing a weapon, and a hundred shillings for mutilation. Part of the fine would be paid to the victim’s lord. When in 1542 Maguire agreed to become vassal of O’Donnell he ceded half of
the blood money for homicide in Fermanagh. According to the legal institution of
comairce
(‘comrick’), if anyone under the protection of a lord were violated, the offence would be taken as an offence against the protector himself, and if the protected person offended, the lord must offer satisfaction. An
éiric
was often offered and accepted on behalf of the lord’s retainers, for if they were executed the lord and his protection would be dishonoured and the consequence would be feud and local war.

Execution was not customary in late medieval Ireland, unless public outrage were stirred, but lords could impose punishments of death or mutilation. In 1500 Maguire ordered the hanging of Melaghlin Bradach (‘the thief’) O’Flanagan. There were also the sanctions of exile and casting adrift. A man who was poor, or unable to summon kin or friends to redeem him, could legally be hanged by those whom he had injured. If the defendant refused to pay compensation, the plaintiff could seize his property or that of his kin, under the rule of ‘kincogish’, the collective responsibility of the kin. It was this private seizure of property, and the cattle raids which ensued, which was particularly condemned by English legislators. But they accepted pragmatically some brehon law principles, such as ‘kincogish’, in their dealings with the Irishry; the two systems were not always radically estranged in practice. Brehon law began to retreat after 1541, when the king’s Irish subjects came under his protection and were subject to his justice.

But the notion of justice, as opposed to law, still seemed remote in some parts of Ireland and for many of its people. A conversation between Captain Docwra, commander of the English garrison in Derry, and Niall Garve O’Donnell at the end of the Tudor century revealed the awesome and arbitrary powers which the last generation of Gaelic lords still claimed:

The common people, or ‘commons’, the vast majority of the population, were the estate in the Tudor commonwealth who were bound ‘only to be ruled, not to rule other’. They were allowed no authority, no voice, and their part was usually as silent spectators to the actions of the great. In his
History of the Reign of King Richard III
More judged that the commons were hardly implicated in that tyranny, for politics were ‘king’s games, as it were stage plays… in which poor men were but lookers on’. Tudor political theory, expressed in homilies, sermons and tracts, constantly invoked a divine order of strict hierarchies where people were set in ranks. Just as God had set ‘an order by grace between himself and Angels, and between Angel and Angel, and between Angel and man’, so He had ordained distinctions between men and men, which ‘God willeth us firmly to keep without any enterprise to the contrary.’ So Edmund Dudley explained in his
Tree of Commonwealth
, which he wrote in the Tower in 1510, while imprisoned for treason. As it was in the human body, so it was in the body politic: just as the foot obeyed the head, so must the people obey the king. This was both the divine and natural order and not to be questioned. ‘These folk may not grudge nor murmur to live in labour and pain.’ Suppose siren voices whispered to the commons that their subservience to the upper orders was unfair – ‘Why should they sport and play and you labour and till?’ – or against the divine promise – for were not the commons, too, the children of Adam and had not Christ redeemed them ‘as dearly as the nobles, with… His precious blood’? – they were not to listen. They must remember that God had ordained both rich and poor, and that rich and poor owed reciprocal duties. The rich must provide work and relief; in return the poor owed deference and service.

That there was civil government at all was seen to be the consequence of man’s first disobedience and Fall. After that God had set kings over men, as God’s ministers, to protect the righteous and punish the wicked. The people were especially unfit to rule, for they could not, unlike the nobility, be educated to virtue. Their ignorance made any presumption to govern, at the least, unfitting – ‘a ploughman shall make but a feeble answer to an ambassador’ – and could decline to something much worse. For the people to rule was a kind of tyranny – ‘the many-headed tyranny’ – because they suffered from the same vice of intemperance which
afflicted the tyrant. Any form of popular democracy, where government was handed over to the sinful majority, was monstrous, as when the ‘foot taketh upon him the part of the head, and commons is become a king’. This was the spectre which haunted Tudor governors, whose fearful imagination metamorphosed the confederacy of a handful of malcontents into the status of rebellion. They had seen in their own times terrifying examples of subversion: the German Peasants’ War and the anarchic commune of Münster.

There was a long tradition of popular revolt in England. Tudor chronicles told of the insurrection of 1381, when peasants and townspeople, in their great hour of corporate articulacy, had subverted the social order, denounced their oppressors, and wrought havoc. The fear was always that the commons would rise again. Yet the power of the people was usually latent. The poor would be cast weeping from their homes when land was enclosed, consigned to dereliction without offering resistance. Any use of their strength in numbers was illegitimate; mob rule. Yet, under duress, they might be provoked to action. Insurgency of a greater or lesser kind – whether rebellion against the Crown or revolt against landlords – might have seemed the natural consequence of a political system which allowed the great majority no channel for grievance, in which any appeal for redress was taken as rebellion. What else could they do but rebel? Sometimes the voice of desperation was heard. ‘We shall never have good world till we fall together by the ears,’ so a Norfolk woman threatened in 1537, ‘and with clubs and clouted shoon shall the deed be done.’ These were the only weapons of the peasantry, but frightening if wielded by many.

Rebellion took many forms, inspired as it was by myriad motives. Most commons’ revolts were local, animated by particular grievances and directed against particular objects and persons, typically against enclosing by venal landlords which threatened commons’ rights. Usually, after spontaneous breaking down of fences, the rioters would retreat. The violence was almost always shortlived and soon subdued, for in local trials of strength between landlords and commons there was little contest, especially where the lord moved swiftly to exercise summary justice ‘to the terror of others’. Few of these commons’ riots aspired to challenge the bonds of ‘estate and degree’ which bound society in chains of mutual dependence. But a few did. In a May game in Suffolk in 1537 the player acting the part of Husbandry in a play of ‘a king how he should rule his realm’ said many things against gentlemen which were
not in the text; and three years later, in neighbouring Norfolk, a confederacy formed against gentlemen, who bore ‘little favour… to us poor men’. It would be good, some said, ominously, if there were ‘as many gentlemen in Norfolk as there be white bulls’. Such threats were rare, and usually empty, but the East Anglian gentry had cause for alarm, as the events of 1549 would show, and the East Anglian commons had reason for animus against a venal gentry which was unfit to govern. The central authorities were generally little concerned with local riots, for the grievances expressed were not against them. But not all commons’ revolts were of a peasantry chafing against local injustice; some were for a cause which was national. These were more dangerous by far.

Suppose the passions of the people of a whole region were roused against the actions of the government? At times, the commons showed allegiances quite contrary to those which the Tudor monarchs required, especially in moments of greatest royal insecurity. At Henry VII’s accession loyalty to Richard III and the Yorkists remained strong in the North, and the commons was the element in northern society most persistent in refusal to accept the first Tudor. They followed captains who took names like ‘Robin of Redesdale’, which were evocative because they had been used before in rebellion against the Crown. London often threatened to declare itself for the Tudors’ enemies; a fearful threat, for it was, as John Stow, its greatest chronicler admitted, ‘always a mighty arm and instrument to bring any great desire to effect, if it could be brought to a man’s devotion’. The 3rd Duke of Buckingham listened to advice to ‘win the favour of the commons and he should have rule of all’, and when he was executed in 1521 for his treason the universal grief of the Londoners caused the City fathers to set watches. In London a few could raise many, rumour turn to action, and threats to violence. In 1517 two London apprentices had, within hours, mustered hundreds of others to rise on May Day against foreigners: a riot remembered as ‘Evil May Day’. Thereafter the apprentices were always distrusted as an unstable element, especially on holidays and their traditional days of misrule.

Although few denied the obligation to support the monarch in times of necessity, the commons might baulk if the royal necessity were not theirs. In Yorkshire in 1489 the commons, led by the pseudonymous captains Master Hobbehirst and Robin Goodfellow, opposed the levying of taxes to fund the King’s campaign in distant Brittany. So, too, in Cornwall in 1497 the commons revolted against taxes to finance war in
even more remote Scotland, a war, they said, which was ‘but a pretence to poll and pill the people’. Fifteen thousand Cornishmen, led by Michael Joseph (‘The Smith’;
An Gof
in Cornish), Thomas Flamank, a gentleman, and Lord Audley, marched, largely unopposed, to London. Their demonstration and defiance ended, as others would, in carnage. Ill-armed and ill-led, they were cut to pieces or put to flight at Blackheath.

Poverty drove them to resistance, the commons claimed; a claim hard to gainsay. In Yorkshire in 1513 the commons volunteered their personal services for war, but no money, ‘because they have so little of it’. A decade later Henry VIII demanded a tax large enough to finance his ambition to win ‘the whole monarchy of Christendom’; a sum, said the Commons in Parliament, ‘impossible to be levied’. In 1525 the King called for the Amicable Grant, which was neither amicable nor, as it turned out, a grant. There were ‘pitiful curses and weepings’ from a commons already undermined by catastrophic harvests, recurrent plague, and a collapse in the wool trade. In Kent many accounted themselves as ‘desperates’. In Suffolk there was mutiny. ‘Two or three hundred good poor fellows together… would have a living’ by whatever means, they threatened, and ‘he that had the most should have the least peradventure’. Crowds flocked to present their grievances, clamouring like ‘geese in corn’. Asked who was their captain, the reply came: ‘Forsooth, his name is Poverty, for he and his cousin Necessity hath brought us to this doing.’ Claiming poverty exculpated the commons from charges of treasonous rebellion and allowed a king, who was unable to subdue them by force, to concede and to pardon with seeming grace. The perennial dearth and calamity which clouded the world of the peasantry lay behind every popular revolt, yet there were causes for rebellion far more compelling and unifying than poverty alone.

The greatest rebellions of the century were in the name of faith and justice. So it was in the Lincolnshire rising and the Pilgrimage of Grace of 1536. When the assault upon the monasteries gave focus to all the inchoate fears and rumours of heretical innovations imposed by an alien court, of inequitable taxation, of despoliation of churches and transfer of land and disruption of tenure, the whole of northern society was threatened and rallied to the defence of ‘its old ancient customs’. A rebel force rallied so large that no royal army could counter it. The commons of the North had initiated the great rising, and much of it was created in their image. The oaths they swore were to ‘God, the King and the commons’, and the names of the commons and the commonwealth were
constantly evoked to strengthen their resolve. In the North-West the commons’ leaders were ‘simple poor men’, whom they called Lord Poverty, Captain Pity and Captain Charity. At the great Pilgrim councils the commons’ voice was heard through their own representatives. But they could not act alone. Because they were conservative, because it was their ‘old ancient customs’ they were determined to restore, they wanted, indeed demanded, the support of their natural superiors; the nobility and gentry. With the accustomed battle cries – ‘thousands for a Percy’, ‘a Dacre, a Dacre’ – they called upon their traditional leaders to lead them as before. But this seeming deference took strange forms.

The gentry and nobility assumed the leadership of a movement whose aims they approved but whose means they abhorred: but they were adamant that they were captives of the mutinous commons, victims of the rising not its prime movers. Sir Stephen Hamerton claimed that upon his return from hunting he was warned by women that he must save himself. Surrounded by 300 armed men at Giggleswick, he was told that ‘he had ruled them, but they would now rule him’, and was compelled to swear the rebel oath. Is his story to be believed? Certainly the King and those around him found it hard to absolve the gentry and to accept their pleas that their servants and tenants would not stand with them. But when the leaders of the army sent against the Pilgrims wrote ‘in desperate sort as though the world would be turned upside down’ if the King did not accede to the rebel demands, their fears were genuine, the subversion real. The deference of a nobleman’s retinue was conditional, and the loyalty of tenants mutable. The force that a nobleman mustered against the Pilgrims could defect to the Pilgrim ranks. In 1553 the commons would marshal successfully to impose their will upon their social leaders and effect a great political and religious transformation. Their actions attested not only to their conviction, but their confidence. In England, wrote the Elizabethan poet Edmund Spenser, ‘every man standeth upon himself and buildeth his fortunes upon his own faith and self-assurance’.

Hierarchies and structures of power were extended and diffused throughout society. In their parishes and villages men sought office and authority and a political voice. Yet participation in the public life of a parish was highly circumscribed. Yeomen and wealthier tradesmen monopolized the higher parish offices such as churchwarden; lesser offices, like that of sidesman, went to husbandmen. For the labouring poor there was nothing. Parish office was not only a measure of rank,
but conferred real power; the control of land, distribution of poor relief, or moral regulation. Although parish life, centred upon the church, was ideally based upon the values of charity and neighbourhood which should transcend rank and degree, still there were deep divisions between the ‘better’ or ‘chiefest sort’ who gave poor relief, and the poorer, ‘meaner sort’ who received it. The parish leaders came to give alms conditionally. Sometimes they opposed the marriage of poor people, on the uncanonical grounds that they were likely to become a burden on the parish. In 1570 the ‘chiefest’ of Adlington in Kent were ‘sore against’ Alice Cheeseman’s match, urged her to abandon it, and threatened to expel her from the parish if she defied them. The poor, like her, might be powerless even to marry and to settle in personal security. When Spenser wrote so confidently of the self-assurance of the English commons, he was comparing them to the Irish.

‘Now this ye are to understand,’ said the character Irenius in Spenser’s
View of the Present State of Ireland
, rebellions in Ireland were never ‘begun by the common people, but by the Lords and Captains of Countries’, whom the people were ‘forced to follow’. Not a single peasant rising was known in medieval Ireland. The oppressive system of coyne and livery kept the people poor, submissive and silent. The lords hardly needed to listen to the popular voice. Ruling by the ‘strong hand’, they knew that the commons dared not challenge them. By the late sixteenth century the lords claimed the right to retain their tenants and denied them the right to leave the land. The English planters and administrators chose to see the Irish peasantry – ‘churls’, as they called them – as bond slaves. In law, the peasantry may not have been subject to a hereditary condition of unfreedom; in practice, their status and standard of living were so low that it seemed so.