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Henry VIII, Rebellion and The Rule of Law

Published online by Cambridge University Press:  11 February 2009

Steven G. Ellis
Steven G. Ellis
Affiliation:
University College, Galway
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Extract

It has been traditional to regard the reaction of Henry VIII in the face of treason and rebellion as savage and extreme. Perhaps for this reason, historians for long considered it superfluous to examine in any detail what fate actually befell those who took up arms against their king. More recently, however, findings that relatively few persons were executed by Henry, despite the savagery of his reign, and that in general his bark was worse than his bite,1 have suggested that this question could profitably be pursued further. There seems, for instance, to be a significant difference between the 178 executions in the aftermath of the Lincolnshire rebellion and the Pilgrimage of Grace in 1536–7 and the rather larger number for which Elizabeth was responsible following the much less dangerous Northern Rising of 1569.2 Yet how these figures were achieved and what considerations shaped and determined the extent of the government's retaliation is much less clear. Perhaps the surviving evidence will not normally admit of answers to such questions, for it was not in the government's interests to disclose that external considerations might influence the enforcement or otherwise of the law. The manifestation of this fact was therefore inconvenient, but exceptionally such disclosures might be unavoidable.

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Articles
Information
The Historical Journal , Volume 24 , Issue 3 , September 1981 , pp. 513 - 531
Copyright
Copyright © Cambridge University Press 1981

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References

1 See, for instance, Elton, G. R., Henry VIII: an essay in revision (London, 1962), pp. 15–16Google Scholar; James, M E., ‘English politics and the concept of honour, 1485–1642’ in Past & Present (Supplement 3) (Oxford, 1978), pp. 42–3Google Scholar. I am grateful to Professor Elton and to Dr Christopher Haigh for reading and commenting on an earlier draft of this paper. Abbreviations used in the notes: B. L., British Library; Cal. pat rolls, Calendar of patent rolls; Cal. S.P., Calendar of state papers; I.H.S. Irish Historical Studies; L. & P. Hen. VIII, Letters and papers, foreign and domestic, Henry VIII; P. R.O., Public Records Office, London; P.R.O.I., Public Record Office of Ireland; S.P. Hen VIII, State papers, Henry VIII; Stat. of realm, The statutes of the realm; Slat. Ire., The statutes at large passed in the parliaments held in Ireland.

2 Elton, G. R., Policy and police: the enforcement of the Reformation in the age of Thomas Cromwell (Cambridge, 1972), p. 389; James, loc. cit. p. 33.Google Scholar

3 See Hurstfield, Joel, ‘Was there a Tudor despotism after all?’ in Transaction of the Royal Historical Society, 5th ser. XVII (1967), 83–108CrossRefGoogle Scholar and Elton's reply, ‘The rule of law in sixteenth-century England’ in Studies in Tudor and Stuart politics and government (Cambridge, 1972), pp. 260 84.Google Scholar

4 Policy and police, p. viii.

5 Ellis, S. G., ‘The administration of the lordship of Ireland under the early Tudors’ (unpublished Ph.D. thesis, Belfast, 1979), p. 7.Google Scholar

6 For example, Moody, T. W., Martin, F. X. & Byrne, F.J. (ed.), A new history of Ireland, 111 (Oxford, 1976), 4–6, 20–5, 33–4.Google Scholar

7 See especially Canny, N. P., The formation of the old English elite in Ireland (Dublin, 1975); The Elizabethan conquest of Ireland: a pattern established, 1565–76 (Hassocks, 1976), ch. 2.Google Scholar

8 On the causation and course of the rebellion, see Ellis, S. G., ‘Tudor policy and the Kildare ascendancy in the lordship of Ireland, 1496–1534’ in I.H.S. xx (1976), 235–71Google Scholar; ‘The Kildare rebellion and early Henrician Reformation’ in Historical Journal, XIX (1976), 807–30.Google Scholar

9 S. P. Hen. VIII, II, 467–8; Cal. S.P. Spain, 1534–8, pt. I. nos. 84, 87, 102, 109; Ellis, ‘Tudor policy’, pp. 264–5, for this and the following point.

10 S.P. Hen. VIII, II, 206. In practice, the rebellion effectively prevented the government from levying the profits of traitors’ lands until May 1535: Ibid. 11, 242.

11 Stat. of realm, 26 Henry VIII c. 25; P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII c. 1 (Stat. Ire., I, 66–76); Ellis, ‘Tudor policy’, note 113.

12 S.P. Hen. VIII, II, 222, 241.

13 Cf. Edwards, R. D., ‘The Irish Reformation parliament of Henry VIII, 1536–1537’ in Historical Studies, VI (London, 1968), 64, 79–80Google Scholar; Richardson, H. G. and Sayles, G. O., The Irish parliament in the middle ages (Philadelphia, 1952), pp 244–5, 263, 273–4.CrossRefGoogle Scholar

14 Elton, Policy and police, pp. 275, 308, 390–91; The Tudor constitution (Cambridge, 1960), p. 81.Google Scholar

15 The process by which the Irish court of king's bench became sedentary is discussed in Ellis, ‘Administration of Ireland’, pp. 205–6, 216–17.

16 S.P. Hen. VIII, 11, 223, 225, 228–9.

17 Ibid. 11, 205–6, 228.

18 Ibid. 11, 225, 228–9.

19 Ibid.; L. & P. Hen. VIII, viii, no. 193.

20 Cf. S.P. Hen. VIII, 11, 192.

21 Ibid.11, 225.

22 Ibid., II, 223; L. & P. Hen. VIII, viii, n. 892; P.R.O.I., CH I/I, Statute roll, 28–9 Henry VIII c. 1. Cf. Otway-Ruthven, A. J., A history of medieval Ireland (London, 1968), p. 182.Google Scholar

23 P.R.O.I., CH 1/1, Statute roll 28–9 Henry VIII c. 1; PRO., S.P. 65/1/2 (L. & P. Hen. VIII, xII (ii), no. 1310 II 9). Rowkes was executed with Dr John Travers on Oxmantown Green, Dublin by order of Lord Deputy Skeffington: Raphael Holinshed, Chronicles of England, Scotlande andlrelande (ed. Henry Ellis, 1807–8), vI, 302; Archbishop Marsh's Library, Dublin, Loftus Annals, MS Z4 2 7, f. 409. This and the fact that they had not yet been executed when work began on drafting the Irish attainder point to c. July 1535 as the date of their execution.

24 S. P. Hen. VIII, 11, 236–7; L. & P. Hen. VIII, vIII, no. 487; P.R.O., S.P. 60/2/97 (L. & P. Hen. VIII, vIII no. 449).

25 Marsh's Library, Loftus Annals, MS Z4 2 7, f. 410V; Holinshed, , Chronicles, VI, 300–1.Google Scholar

26 See the references in notes 21–2; Ware, Sir James, The antiquaries and history of Ireland (ed. Ware, R., Dublin, 1705), p. 90Google Scholar; Hennessy, W. M. and MacCarthy, B. (ed.), Annala Uladh, Annals of Ulster (Dublin, 1887)–1901, sub anno 1535.Google Scholar

27 S.P. Hen. VIII, 11, 237.

28 Cf.Ibid.. 11, 243.

29 P.R.O.I., Record Commissioners’ repertory of exchequer inquisitions post mortem, RC 9/3,11, 35–7, RC 9/6, 1, 217 19, 11, 31, RC 9/8, 1, 111, 11, 5 7, 52; S.P. Hen. VIII, 11, 245.

30 B.L., Add. MS 4793, f. 124V (undated extracts of Travers’ case from a king's bench roll); Holinshed, , Chronicles, VI, 302Google Scholar; Marsh's Library, Loftus Annals, MS Z4 2 7, f. 409. As in the case of certain other rebels who had already been tried and despatched by the common law, Travers is not explicitly included in the Irish attainder: cf. P.R.O., S.P. 65/1/2 (L. & P. Hen. VIII, 11 (ii), no. 1310 I 45, II 9).

31 S.P. Hen. VIII, 11, 243, 246, 254, 320; L. & P. Hen. VIII, XI, no. 521. That indictments were actually procured and not just threatened is quite clear (cf. Edwards, ‘Irish Reformation parliament’, p. 70; Bradshaw, Brendan, ‘The opposition to the ecclesiastical legislation in the Irish reformation parliament’ in I.H.S. XVI (1968)–1969, 301)Google Scholar: though proceedings were then respited, those indicted had later to appear and exhibit their pardons in king's bench and have them allowed. See McNeill, C. and Otway-Ruthven, A. J., Dowdall deeds (Dublin, 1960), nos. 534 5.Google Scholar

32 Ellis, , ‘Kildare rebellion and early Henrician Reformation’, pp. 812, 819; S.P. Hen. VIII, 11, 225, 245Google Scholar; Holinshed, , Chronicles, VI, 298.Google Scholar

33 S.P. Hen. VIII, 11, 246; P.R.O., E.101/248/23, fo. 2. For the background to this recommendation, which in all probability represented a compromise between hawks and doves on the council, see Edwards, ‘Irish Reformation parliament’, pp. 62–3.

34 See, Edwards, loc. cit. pp. 63–5. Professor Edwards’ suggestion that Cromwell planned a parliament for January 1535 rests on the pre-dating of a document by a year: L. & P. Hen. VIII, VII, no. 1211; Edwards, loc. cit. p. 61. In the event, parliament's meeting was postponed to May 1536 because of the death of Lord Deputy Skeffington.

35 See Quinn, D. B., ‘The early interpretation of Poynings’ Law, 1494–1534’ in I.H.S. II (1940)–1941a, 241–54.Google Scholar

36 P.R.O., S.P.60/2/50 (printed in Quinn, D. B., ‘The bills and statutes of the Irish parliaments of Henry VII and Henry VIII’ in Analecta Hibemica, x (1941). 139–42); S.P. Hen. VIII, 11, 246.Google Scholar

37 S.P. Hen. VIII, II, 246; L. & P. Hen. VIII, Ix, nos. 41, 90.

38 P.R.O., E. 101/248/23, fo. 2; B.L., Lansdowne MS 159, fos. 32–9 (L. & P. Hen. VIII, vii, no. 1382 (1, 2)); L. & P. Hen. VIII, ix, no. 90; P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII c. 1. Cf. Elton, Policy and police, p. 270.

39 Quinn, , ‘Bills and statutes’, p. 138Google Scholar. Neither of the two drafts differs significantly from the act as passed and they were probably products of Audley's labours. The complete draft (B.L., Lansdowne MS 159, fos. 36–9; L. & P. Hen. VIII, viiGoogle Scholar, no. 1382 (1)) was probably a copy made by the Irish official working with Audley of the draft sent to Ireland for formal consideration by the deputy and council, certainly not a draft of the English attainder of 1534 as Professor Elton has suggested (‘Parliamentary drafts, 1529–40’, reprinted in Studies in Tudor and Stuart politics and government (2 vols., Cambridge, 1974), 11, 65)Google Scholar, though he is probably right about the actual scribe. The incomplete draft is a more characteristic government effort, though again uncorrected: B.L., Lansdowne MS 159, fos. 32–5V (L. & P. Hen. VIII, vii, no. 1382 (2)).Google Scholar

40 L. & P. Hen. VIII, 1 (2nd edn), no. 632 (7, 22), III, nos. 2703, 3051, iv, no. 6135 (26).

41 Elton, , Policy and police, ch. 6, esp. pp. 285–7Google Scholar; Bellamy, John, The Tudor law of treason: an introduction (London, 1979), p. 34.Google Scholar

42 An act of the second session of the parliament, chapter 13, vested in the king the lands of Sir Walter Delahide in Carberry, on the marches with the Irish, on the grounds that Delahide and his wife, Janet Eustace, had counselled Fitzgerald and their sons in the rebellion (Delahide was Kildare's receiver-general: L. & P. Hen. VIII, iv, no. 4302Google Scholar; S.P. Hen. VIII, 11, 145)Google Scholar. Despite their imprisonment ‘in duress’, for a year, culminating in Eustace's death, the government could obtain no evidence against them and was forced to release Delahide. The whole Delahide inheritance would in any case have fallen in to the crown on Sir Walter's death by right of the attainder of his sons, James, John and Edward, but the government felt that his defence of the march was negligent and would tend to defraud the king of his rights: P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII c. 13 (Stat. Ire., I, 100–1); Holinshed, , Chronicles, vi, 302Google Scholar; below, note 70. The same duplicity is apparent among northern families involved in the Pilgrimage of Grace: e.g. James, Mervyn, Family, lineage and civil society: a study of society, politics, and mentality in the Durham region 1500–1640 (Oxford, 1974), pp. 46–7.Google Scholar

43 See S.P. Hen. VIII, II, 273–8Google Scholar; L. & P. Hen. VIII, ix, nos. 357, 358, 434, 594, 600, 681Google Scholar; Holinshed, Chronicles, vi, 302–3Google Scholar; Ann. Ulster, s.a. 1535. In the event, Poynings’ Law was suspended by statute on 31 May 1536 for the remainder of the parliament, but the government could not be certain in advance that such a bill would pass, and in any case parliament might have refused to accept a more comprehensive attainder. See Edwards,’ Irish Reformation Parliament’, pp. 68, 72, 75, 78, 81–4.Google Scholar

44 S.P. Hen. VIII, II, 280–1.

45 Ibid..11, 241, 278, 305, 321; L. & P. Hen. VIII, ix, no. 358.

46 L. & P. Hen. VIII, ix, nos. 377, 498; Cal. S.P. Sp., 1534–8, pt. 1, nos. 205, 213, 231.

47 L. & P. Hen. VIII, X, no. 254.

48 Stat. of realm, 26 Henry VIII c. 25; P.R.O.I., CH 1/1, Statute roll, 28 9 Henry VIII c. 1Google Scholar; Cal.pat. rolls, Ire., Hen. VIII Eliz., p. 17; P.R.O., S.P. 60/2/97Google Scholar (L. & P. Hen. VIII, vIII, no. 449). The terms of the pardons do not now survive: it is possible, though unlikely, that they were for lesser offences.Google Scholar

49 P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII c. 11; Edwards, , ‘Irish Reformation parliament’, p. 69Google Scholar. Sir James Fitzgerald had inherited Leixlip and extensive lands elsewhere as the eventual heir of the eighth earl of Kildare and his second wife, Elizabeth St. John, cousin of Henry VII, for grants entailed to them and their heirs male: Cal. pat. rolls, 1494–1509, PP. 109–308, 443Google Scholar; L. & P. Hen. VIII, III, no. 2145 (14), v, no. 1207 (18).Google Scholar

50 Stat. of realm, 28 Henry VIII c. 18Google Scholar; L. & P. Hen. VIII, x, nos. 1, 108, 147Google Scholar. The attainder was introduced into the Lords on the 17th and received the royal assent the following day: Journals of the House of Lords, 1, 100Google Scholar. Though the Irish parliament was then sitting, it had been established in 1429 that legislation of the Irish parliament might be reviewed in the English parliament: Richardson, & Sayles, , Ir. parl. in middle ages, pp. 254–5. This implied that the Irish parliament stood in an inferior relationship to the English parliament.Google Scholar

51 Ellis, ‘Tudor policy’, pp. 269 70.

52 S.P. Hen. VIII, 11, 293 note 1.

53 L. & P. Hen. VIII, ix, nos. 332, 358, 515, x, no. 301; S.P. Hen. VIII, 11, 278–305.

54 S.P. Hen. VIII, 11, 369; L. & P. Hen. VIII, xI, no. 521; P.R.O., S.P.60/3/4 (L. & P. Hen. VIII, ix, no. 332).

55 S.P. Hen. VIII, 11, 275, 277–8, 321, 407.

56 Ibid..11, 243, 264, 295, 308.

57 Ibid.. 11, 320; L. & P. Hen. VIII, x, no. 1032, XII (i), no. 894Google Scholar. Cf. Edwards, , ‘Irish Reformation Parliament’, pp. 62–3.Google Scholar

58 S.P. Hen. VIII, 11, 317; P.R.O., S.P.65/1/2 (L. & P. Hen. VIII, XII (ii), no. 1310 11 9)Google Scholar; Bradshaw, Brendan, The dissolution of the religious orders in Ireland under Henry VIII (Cambridge, 1974), pp. 51–2.Google Scholar

59 S.P. Hen. VIII, II, 246, 320–1.

60 Bradshaw, Brendan, ‘The beginnings of modern Ireland’ in Farrell, Brian (ed.), The Irish parliamentary tradition (Dublin, 1973), pp. 72–3Google Scholar; ‘Opposition to ecclesiastical legislation’, pp. 291–300Google Scholar; Dissolution, p. 52.Google Scholar

61 S.P. Hen. VIII, 11, 403–4, 422–6.

62 P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII cc. 20, 35.

63 L. & P. Hen. VIII, xn (ii), no. 181Google Scholar; S.P. Hen. VIII, 11, 229, 477Google Scholar; Holinshed, Chronicles, vi, 302; as in note 72 below.Google Scholar

64 Cf. Ellis, , ‘Kildare rebellion and early Henrician Reformation’, pp. 829–30Google Scholar; Elton, G. R., Reform and reformation: England 1509–58 (London, 1977), pp. 262–70.Google Scholar

65 Nichols, J. G. (ed.), Chronicle of the Greyfriars of London (Camden Soc., no. 53)Google Scholar, sub anno 1537. Cf. Wriothesley, Charles, A chronicle of England (ed. W. D. Hamilton, 2 vols., Camden Soc., n.s. xi), sub anno 1537.Google Scholar

66 E.g. Wilson, Philip, The beginnings of modern Ireland (Dublin, 1912), p. 122Google Scholar; MacCurtain, Margaret, Tudor and Stuart Ireland (Dublin 1972), p. 17Google Scholar; Bradshaw, Brendan, ‘Cromwellian reform and the origins of the Kildare rebellion’ in Trans. Royal Hist. Soc, 5th ser. xxvii (1977), 91.Google Scholar

67 Cf. S.P. Hen. VIII, 11, 206.

68 It is unlikely that any more of Fitzgerald's gentry supporters were executed at this lime, since evidence of this would have survived in the under-treasurer's account in connexion with lands forfeited, and probably also in the surviving calendars of inquisitions post mortem.

69 S.P. Hen VIII, 11, 231; P.R.O., S.P.65/1/2 (L. & P. Hen. VIII, xn (ii), no. 1310 II 9).

70 P.R.O., S.P.65/1/2 (L. & P. Hen. VIII, xII (ii), no. 1310 1 45).

71 L. & P. Hen. VIII, xII (ii), nos. 135, 1310 11 9.

72 Thus the list includes Sir Walter Delahide who eventually escaped with his life and a life interest in certain of his lands. See above, note 39; Cat. pal rolls, Ire., Hen. VIII Eliz., p. 97.

73 S.P. Hen. VIII, 11, 295.

74 P.R.O., S.P.65/1/2 {L. & P. Hen. VIII, xII (ii), no. 131014–16). In addition, Peter Fitzgerald of Millonsgrange, Co. Kildare was attainted some time after Michaelmas 1537: L. & P. Hen. VIII, xvI, no. 777 1 37.

75 Hore, H. F. and Graves, j. (ed.), The social slate of the southern and eastern counties (Dublin, 1870), p. 62.Google Scholar

76 Cf. d'Alton, J., The history of the county of Dublin (Dublin, 1838), pp. 745 6Google Scholar; extracts from Pipe Roll fragments, National Library of Ireland, MS 761, p. 349; Memoranda roll, 36 Henry VIII m. 50 (P.R.O.I., Ferguson repertory, Iv, 151); Bodleian Library, Oxford, Laud MS 613, fo. 297; L. & P. Hen. VIII, xi, no. 200, xii (ii), nos. 729 (1), 1232, xvi, no. 777 I 37Google Scholar; ‘Calendar to fiants…Henry VIII’ in Seventh report of the Deputy Keeper of the Public Records in Ireland (Dublin, 1875), no. 484Google Scholar; P.R.O., S.P.65/3/2 (I am grateful to Professor Gearóid Mac Niocaill for allowing me to use his transcript of this document).

77 ‘Cal. fiants Hen. VIII’, nos. 178, 203, 341, 372; Cal. pat. rolls Ire., Hen. VIII Eliz., p. 53. In other cases, including Kildare's, the attainders were ultimately reversed in favour of the descendants of those attainted.

78 McGilsenan appears to have been a collector of subsidy in Coolock barony, Co. Dublin in 1533 4: Memoranda roll, 25 Henry VIII m. 26d (P.R.O.I., Ferguson coll. Iv, fo. 179).

79 Ellis, ‘Tudor policy’, pp. 260–1: based on contemporary estimates which may have exaggerated. On the other hand, Offaly faced little serious opposition at this stage and therefore had little incentive to muster his full military capacity.

80 L. & P. Hen. VIII, xii (i), no. 983.

81 N.L.I., D. 15978- 9 (Dowdall deeds, nos. 534 5).

82 P.R.O., S.P.65/2/2 (L. & P. Hen. VIII, xvI, no. 776). I am indebted to Professor D. B. Quinn for this reference. Except where otherwise stated, sums are given in pounds Irish: one pound Irish was the equivalent of one mark sterling.

83 P.R.O., S.P.65/1/2.

84 Cromwell claimed in June 1536 that the revolt had cost £40,000 sterling to suppress, though this may be an exaggeration: L. & P. Hen. VIII, x, no. 1051 ii. See Ellis, S. G., ‘Thomas Cromwell and Ireland, 1532–40’ in Historical Journal, xxiii (1980), 510Google Scholar. In contrast, the Cornish rising of 1497 had cost £13,200 St. to suppress, but Henry VII received £14, 700 st. in fines for pardons: ). Loades, M., Politics and the nation, 1450 1660 (London, 1973), p. 107.Google Scholar

85 See Ellis, , ‘Thomas Cromwell and Ireland’, pp. 510, 514 16 for these calculations.Google Scholar

86 Cf. Ellis, , ‘Kildare rebellion and early Henrician Reformation’, passim.Google Scholar

87 P.R.O.I., CH 1/1, Statute roll, 28–9 Henry VIII cc. 1, 8 (Stat. Ire., 1, 68 9, 95); Ellis, loc. cit. pp. 826 9.

88 Reid, R. R., The king's council in the north (London, 1921), pp. 133 52Google Scholar; , M. H. and Dodds, R., The Pilgrimage of Grace 1536–1537 and the Exeter Conspiracy 1538 (Cambridge, 1915), 11, ch. 21.Google Scholar

89 Reid, King's council, pp. 131–2.

90 S.P. Hen. VIII, II, 192.