The Penguin History of Britain: New Worlds, Lost Worlds:The Rule of the Tudors 1485-1630 (28 page)

Under St Leger there began a policy towards the great chiefs of the Irishry which would last the century. They were to submit themselves to the King, surrendering their own sovereign jurisdiction and lands in their territories, their use of the clan name as a title, to be regranted in return feudal title and feudal tenure under letters patent. Gaelic lordship was to be transformed to feudal lordship; the Gaelic tenurial system replaced by an English one. Now the Irish lords were to hold land freely by law, no longer by the sword, with their lands passing, by primogeniture, to their heirs. But the English legislators confused lordship of a territory with its ownership, and granted lands as property to the lord in a way unknown to Irish law and custom. In Gaelic Ireland the land was the sept’s not the lord’s. The clans were now dispossessed not only of the right to elect and be elected, as primogeniture replaced tanistry, but also of land. No wholesale confiscation followed, but some lords gained at the expense of their underlords. The English hoped that primogeniture would prevail in time, but tanistry was not easy to outlaw. The submission of one lord might not bind his successors, or his sept,
for the lord was subordinate to a Gaelic system which had elected him, and septs which had not always remained loyal to a tanist were even less likely to accept a chief dictated by birth alone, or to allow designation of an heir by the lord. Of gravest consequence was Conn O’Neill’s choice of Matthew as heir and Baron of Dungannon, instead of his son, Shane, the clan-elected tanist. Matthew had the legitimacy of royal approval, but had no standing among the O’Neills, and was eventually murdered in 1558 in a clash with Shane’s supporters. Shane’s accession to power in Tyrone and Ulster was seen by the English as usurpation, a dangerous derogation of the new principle of inheritance, which must be protected to save the royal honour. Yet with many lords the policy at first succeeded. One by one, the great Gaelic and Gaelicized lords submitted. They surrendered lands and the name; they promised to ride in hostings against the King’s enemies, and in return they would be defended. Resolving to submit to the Crown, they renounced the pope also, seemingly without scruple. That they were delegated jurisdiction over benefices in their territories helped to persuade them. The greater lords – like O’Neill, Clanrickard Burke and O’Brien – swore fealty to the Crown and received earldoms, becoming Earl of Tyrone, Earl of Clanrickard, Earl of Thomond. Lesser lords received lesser titles.

Why did they submit, these lords who had previously ignored or defied the English king? Why did they, who had so recently vowed that ‘they will have all or lose all’, now surrender? Some succumbed to force, like O’Neill, after devastating rodes (incursions) through Tyrone, and this lord’s submission was instructive to all the others. Underlords looked for freedom from the dominance of their overlords, like the MacCarthys of Muskerry, released from MacCarthy Mór. Others, vulnerable and fearing future deprivation, conceded. The lords saw the instability of the old factionalism, feared the militarism of the Lord Deputy and understood how evanescent were the promises of foreign princes. Agreement with the King brought them defence of their property and the possibility of disarmament. The prospect of advancing one heir instead of ‘twenty bastards’ might appeal, so one jaundiced official thought. Perhaps few believed that their submission was permanent. The obedience of the Gaelic lords was only ever conditional and pragmatic, never the absolute loyalty of the subject. Though Conn O’Neill agreed ‘utterly to forsake’ the name of O’Neill, believing that he could be at once an Irish noble, the Earl of Tyrone, owing fealty to a king in England, and a Gaelic lord who had once thought of the high kingship,
his successors would renounce the earldom and the fealty and long to be O’Neill once more, to go to the stone at Tullaghoge and receive the name. By the late sixteenth century the ‘stone’ and the ‘name’ came to be resonant with rebellion. ‘The traitor,’ Sir Henry Bagenal wrote darkly of Hugh O’Neill in 1595, ‘is gone to the stone to receive that name.’

As Anne Boleyn was taken to the Tower, she asked: ‘Shall I die without justice?’ Assured that ‘the poorest subject the King hath, had justice’, she laughed. She was tried before judge and jury, condemned and executed, according to the laws of England. Yet since the jury was packed with men hostile to her and servile to the King, the guilty verdict was inescapable, even though she was, surely, innocent. On a book of hours associated with her, a contemporary wrote beside an illumination of Christ before Caiaphas ‘even so will you be accused by false witnesses’. The courtiers who laid odds of ten to one that Anne’s brother, Lord Rochford, would be freed, because no evidence was brought against him, lost their bets. The law has always had limitations as an instrument of justice. At the trials of those in high places, political necessity might exert a more compelling claim than impartial justice; and to the poor the law might bring more suffering than benefit. But the cause of injustice in England was not so much imperfect law as the perversions which separated the theory of law from its practice: the corruption and weakness of juries, the partiality of sheriffs and justices of the peace, and even the demands made by kings who were sworn by their coronation oath to uphold the law.

In the Tower in 1541, charged with treason, Sir Thomas Wyatt wrote a defence of himself and a vindication of the laws of England. Under threat of death, he needed to believe that no jury would condemn a man it believed to be innocent. Wyatt insisted that his king forced no man’s conscience; ‘he will but his laws and his laws with mercy’. He reminded his own judges that when Lord Dacre had been acquitted by his peers in 1534, no royal reprisals had followed. Yet Henry was a king who, as Supreme Head of the Church of England, did force consciences. He chose to pardon Wyatt, but he might as easily not have done.

Laws were believed to be consonant with divine justice, and this king saw himself, and was seen by loyal subjects, as divinely appointed.
Henry came to deny any legal constraints upon his kingship: ‘of our absolute power we be above the laws’. For those who feared a Tudor despotism Henry’s emendations to the
Bishops’ Book
, his formulary of faith of 1537, would have been alarming. The text stating that kings might only coerce and kill subjects according to ‘the just order of their laws’, the King changed to allow that only ‘inferior rulers’, the King’s agents, were so constrained. There were dangers that the King might use the rule of law without tempering it by conscience or justice. A chief justice of the King’s Bench warned that ‘sometime
extremum jus
is
summa injuria
’; extreme justice could be extreme injustice. Wolsey counselled the judges to advise the King that a lawful right might not always accord with justice: ‘although this be the law, yet this is conscience’. Henry was a king whose instinct was not always to temper the law.

Attainder, public and parliamentary condemnation for treason, was used by Henry VIII, as by his father, as a means of political proscription. It was through Parliament and by statute that Henry extended his legal competence, creating new treasons of frightening latitude, and novel punishments. A convicted poisoner would now be boiled alive (although this penalty was only inflicted once, against the man who tried, and failed, to poison Bishop Fisher); sodomites would be punished by death, as in Levitical law. The Royal Supremacy and the new Treason Act of 1534 had given the King alarming new powers over conscience. Catherine Howard warned her lover never to reveal in confession the things that had ‘passed betwixt her and him’, for ‘surely, the King, being Supreme Head of the Church, should have knowledge of it’. Yet the reign of terror which so many feared did not follow. In the years 1532–40, 883 people of England, Wales and Calais came within the compass of the treason laws. Three hundred and eight of them were executed. Yet, of these, 287 had been in open rebellion against the Crown, undeniably guilty of treason. This was hardly a massacre of the innocents.

One man died who had surely never committed treason: Sir Thomas More. When More refused to swear the oath of succession, and resolved never to ‘dispute kings’ titles nor popes’ titles’, he had found, in silence, the perfect defence, for the Treason Act could only punish express denial. To die on the scaffold, if by silence he could avoid it, would be suicide: this was what More meant when he called the act a ‘two-edged sword’ by which a man put either his body or soul in peril. More kept silent, while no one, especially the King, doubted that More’s silence marked
his utter disavowal of the King’s proceedings. Yet in the Tower, in conversation with Sir Richard Rich, the Solicitor-General, on 12 June 1535, More in lawyerly ‘putting of cases’ breached his silence upon the Supremacy. So Rich alleged, and it was upon Rich’s evidence, which More insisted was perjured, that More was convicted at his trial. On 6 July, the eve of his own saint, Doubting Thomas, More went to the block. The King had desired his death, but the proper legal forms were observed.

Though the new laws terrified, they were kept as a threat which was usually unfulfilled. In England, unlike the rest of Europe, torture was not used as an ordinary part of the legal process. Under the first Tudors, no judges were removed, and very few juries punished. Even packed juries sometimes acquitted. Yet people remembered the fear. Edward VI’s councillors denounced ‘the cruel and bloody laws’ of his father; ‘Dracon’s laws… written in blood’. Bishop Gardiner later claimed that the oaths he had taken under Henry and Edward were ‘Herod’s oaths’. Henry saw himself rather as Justinian, the lawgiver. Yet the laws of England had never been codified by kings.

The law of England was, and is, composed of three great elements: common law, equity and statute. The common law was created by the custom of the people and the decisions of judges: it was unwritten, enshrined in the collective memory of the common lawyers; it was immemorial, traceable to no original act of foundation, and proved by long experience; it was, so common lawyers claimed, constantly reinterpreted, but always the same. The central common law courts – King’s Bench, Common Pleas and Exchequer – sat at Westminster, prototypes for the same courts in Dublin. Tudor common lawyers, defending their law against the competing, and foreign, claims of civil (based on Roman law) and canon (Church) law, thought it not merely the best law in the world, but the oldest. Yet if it was old, it had also failed to adapt: its procedures were antediluvian, its processes in tatters. The work of the King’s Bench had been in decline since the mid fifteenth century. Litigants were abandoning the common law to seek justice in the Chancellor’s courts of Chancery and Star Chamber, hoping that they would find swifter process and immunity from the corruption of local sessions and assizes.

Equity jurisdiction had developed centuries before when, if the courts of common law had failed to give redress, litigants would petition the king, who set up the Court of Chancery to hear them. The Chancellor
became keeper of the royal conscience. The rules applied by Chancery became law, and where there was variance between common law and equity, equity prevailed. Yet there were dangers that judgements in Chancery might be arbitrary, for the Chancellor – whether he was learned in any law or not, whether impartial or partial – had enormous discretionary powers. Unlike the common law, conscience was uncertain. The same complaints of arbitrariness could be made against the jurisdiction of the royal Council, which was also based on principles of equity. So great was the judicial role of the Council under Henry VII and Henry VIII that it developed into an established feature of the legal system (although without statutory foundation). The sessions of Council sitting in Star Chamber became, under Wolsey, those of a regular court. The spectacular rise of Star Chamber was his great achievement, and the consequence of his vaunted confidence that he could provide impartial justice. His ambition was to minister justice indifferently to rich and poor, and more litigants flocked to his courts for remedy than could be satisfied. He intended also to assault the corruption which perverted the legal system, but justice always depended upon the faltering probity of the laymen who operated it.

As a great prelate of the Church, Wolsey held further judicial authority. The Church governed the spiritual lives of the people, and what it could not prevent it punished. The most elaborately codified law – the canon law – and the most complex system of courts in Europe belonged to the Church. Its universal jurisdiction arose from its responsibility for faith and morals. Marriage was at once a sacrament and a relationship involving questions of ecclesiastical discipline; the validity of marriages and the legitimacy of children was decided by the Church. The Church’s courts exercised enormous powers of detection and judgement, not least in cases which seemed to pertain only tangentially to the cure of souls. Since the observation of an oath involved the immortal soul, and ‘Dame Perjury’ led her followers to hell, any promise or contract fortified by oath could be brought to the Church courts for enforcement by excommunication. The Church drew to itself cases – like slander and breach of promise – which the common lawyers thought belonged to them, but handed over to lay justice the duty to impose the worst penalty of all: burning for heresy.

England had a law of great antiquity and continuity, and an established and sophisticated judicial machinery. The system of law and law enforcement ran all the way from the king down to the lowliest villager.
In the country, assize judges went on circuit twice a year, trying criminal cases which were beyond the competence of the Justices of the Peace. The JPs were the keepers of the peace in local communities, commissioned to enquire into felonies and trespasses, to arrest criminals and to try them at their quarter sessions. Although the Tudor institutions of justice bear the same names as their modern counterparts, they are hardly to be judged according to modern standards of the numbers of crimes solved and criminals convicted. The best of legal provisions could be subverted. Trial was by jury – a right enshrined in Magna Carta – and the verdict in every case that turned on an issue of fact belonged not to judges but to the jury. This was meant to ensure fairness, but might not. The sheriff was charged with ensuring that defendants appeared and with empanelling the jury. If the sheriff were corrupt, or intimidated, or if the jury were, then a partial verdict would be brought and there would be not justice, but a travesty of it. In a society of powerful loyalties to kindred, lord or dependants, justice might be partisan. In his
Dialogue between Pole and Lupset
(written between 1529 and 1532), Thomas Starkey wrote ‘matters be ended as they be friended’; if the judge were friend to the man whose case he heard ‘the matter cannot go amiss’.

Royal justice in the later middle ages ran alongside, without conflict, a private system of justice which was older. The king’s law was called upon only where private settlements had failed, and that public law could only operate with private force behind it. Normally lands would be secured, litigation avoided and local peace sustained not by the mechanisms of the law but by the mutual trust upon which social peace depended. It was always the duty and privilege of lords to settle disputes for their followers; not to shelter them from the consequences of their crimes, nor to abet their quarrels, but to pacify them. Magnate councils seem to have spent their time in arbitration and adjudication. The threat that the lord would withdraw his protection if a dependant refused to accept his judgement was a powerful sanction. It was natural that people would rather seek justice from lords whose decisions bound them in other matters, and to whom deference was due, than in alien courts, perhaps in remote capitals. Private settlement was likely to be more expeditious, less expensive and more flexible than the cumbersome process of law. Personal arbitration by powerful lords could provide satisfaction – if not legal victory in court or the security of title, of judgement, of a court verdict – and so bring peace and stability.

Yet lords who held such power in local communities could use it for
malign purposes to deflect the law in contempt of justice. In 1502 Sir Robert Plumpton was dispossessed of estates when Sir Richard Empson, Henry VII’s councillor, was successful in an action against him. Empson had conspired not only with the Justices of the Peace, but also with the many knights, esquires and yeomen who rode with him to the assizes at Nottingham and York to maintain his cause. Plumpton’s own patron, the 5th Earl of Northumberland, was impotent to protect him. That lords defended the interests of their followers in courts – by maintaining suits at law to which they were not party, influencing justices, bribing juries or overaweing the courts – is clear from the repeated legislation against such abuses. The law sought remedy, but remedy lay with the justices and juries who were themselves corrupt or frightened. The more the law was partial, the more people sought powerful protectors. The greatest threat of violence and disorder came not from brawls between common people, which were easily suppressed, but from men of power, with their followings, in their disputes over land and honour. Yet such men usually wanted justice, and played the leading part in providing it. It was in the country that most law was exercised, with the lords in the natural position to judge between parties. But arbitration began to decline, as law developed, as more cases came before the courts, and when the older reliance on the use of private jurisdiction began to be challenged.

There was a plurality of laws in the lands which the Tudors claimed to rule; in England, Wales and Ireland. The royal writ did not run everywhere. On the Marches with Wales and Scotland, and in the border world between the Pale and the Irish Gaelic lordships, royal justice was excluded where legal authority had long ago been granted elsewhere. The great feudatories in Ireland and the Welsh Marcher lords controlled enclaves of private jurisdiction, their local liberties and palatinates. There were also the lay liberties of Tynedale and Redesdale on the Scottish borders. Lords in the Church held liberties too. Outside the walls of Dublin was the liberty of St Sepulchre, under the private jurisdiction of the archbishops of Dublin. The County Palatine of Durham was ruled by its prince-bishop, and at Hexham there was an ecclesiastical liberty controlled by the Archbishop of York. Some places could offer sanctuary – permanent protection – to criminals fleeing there. Into these areas independent of royal justice murderers and thieves fled as into a foreign land. Although in England protective jurisdiction in the hands of laymen had largely disappeared, those held by abbots and bishops remained.
The South had few, but notorious, sanctuaries – for example, within the precincts of Westminster Abbey and St Martin le Grand – but in the North there were many. They remained as a threat to order and a mockery of justice. In 1487 the Westminster sanctuary men gathered to rob the houses of those campaigning with the King against rebels.