The Rule of the Tudors 1485 - 1603

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 - 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 statuatory 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 Justice 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 abjudication. 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 others 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 Tyndale 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. 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 not 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 galamas - the blood feud and its settlement - live 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.