The Rule of the Tudors 1485 - 1603

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 dominiond. 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 couty 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 statue 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 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.