Early Modern England 1485-1714: A Narrative History (43 page)

The Poor Law’s combination of carrots and sticks was often cruel and always inefficient. Some parish officials did everything they could to drive the poor away, using the Act of Settlement as an excuse to reduce their tax rolls. Others were more lax, even welcoming and generous, to the unfortunate. But even their generosity could not eradicate poverty and some historians think that private charity was far more abundant and effective during this period than any of the government’s various stratagems. Still, the English Poor Law was one of the first attempts in Europe to provide government relief since Roman times. The recognition that the English nation had a responsibility to care for its least fortunate members, that the most fortunate should be made to contribute via the poor rates, and that the local parish should be the state-mandated vehicle for both indoor and outdoor relief was remarkably advanced, far ahead of anything on the continent. Hypocritical, inconsistent, and inadequate as the Poor Law may seem to modern eyes, it probably did help to tide people over during a crisis. Its existence may even help to explain why, despite real famine in the 1590s and 1620s, England did not experience widespread popular rebellion as did, say, France during the same period. This appearance of paternalism, neighborliness, fairness, and generosity by the haves in English society may have alleviated the misery, or at least forestalled the questioning, of the have-nots.

Law and (Dis)order

What happened in this society when religion, paternalism, deference, and neighborliness broke down? Much of the history of crime remains speculative because contemporary records simply do not allow for modern-style crime statistics, and many offenses went unrecorded in any case.
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The crimes perpetrated by, or inflicted upon, early modern English men and women may be divided, for the sake of convenience, into four types: violence against persons, theft or destruction of property, moral offenses, and riot. To judge from surviving court records and the anecdotal testimony of natives and foreigners, premeditated murder and assault in families were fairly rare. So were rape and infanticide, but this may be an illusion created by the failure to report such transgressions. Rather, most bloodshed in early modern England seems to have been spontaneous, fueled by drinking or gambling. Aristocrats went about armed with swords, while working men often bore knives or tools. This, plus the contemporary assumption that dueling or fisticuffs were appropriate ways to settle points of honor or reputation, undoubtedly contributed to impromptu violence.

Still, contemporaries seem to have been far more worried about theft. During a period when the rich were getting richer and the poor poorer, we should not be surprised to learn that three-quarters of assize court prosecutions involved property crimes, that the vast majority of the accused were poor, or that their number rose in times of dearth. In theory, early modern society treated thieves especially harshly. In 1603 theft of goods above the value of 1 shilling was a felony, punishable by death, as was an increasing number of other offenses during the early modern period.
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Not all thieves went to the gallows, however. First, if there were no fatalities, the victim had the choice of whether or not to report the crime. Good neighbors tried to work things out without resorting to the law. If the victim did “raise the hue and cry” or complain to the local constable or JP, the latter could investigate, interrogate witnesses, and make out a warrant for arrest. Since there was no police force and the office of constable was a part-time one, apprehension was uncertain, for the accused could flee to another locale. If the constable managed to apprehend the accused, he was brought before the JP. Since there was no such thing as a district attorney or crown prosecution service, the victim now had a choice as to whether or not to prosecute and under what statute to do so. Since he paid prosecuting costs, he might think twice. The victim or the JP might also undervalue the goods stolen so as to avoid the possibility of capital punishment. If both agreed, then the suspect was “bound over” (held) and an indictment drawn up. Then a grand jury, composed of minor but respectable gentry and yeomen, met to determine whether the case went forward or the indictment was thrown out. If the latter, the accused went free; if the former, the case was tried at the assizes. The assizes were meetings held twice a year in which two assize judges, royal appointees, arrived at a large market town on their regular circuit to preside over felony cases. A prosecuting attorney tried the case before a regular or “petty” jury, again all male, who judged innocence or guilt. It was up to the assize judges to pass sentence of mercy or death.

At trial, the cards seem to have been stacked against the accused: for example, he or she was not entitled to legal representation, and could only call witnesses at the judge’s discretion. Still, a fortunate defendant might yet escape punishment at many points. Jurors might reduce the value of the goods lost so as to prevent capital punishment; a pregnant woman could “plead her belly,” postponing a hanging, possibly indefinitely. Some felons escaped via benefit of clergy. This was an ancient custom dating back to the Middle Ages, during which clergy could not be punished by civil courts. To prove that one was a cleric, one was asked to read, for during the Middle Ages only clerics could do so. Literacy was increasing by the sixteenth century, but this loophole remained on the books, so that anyone who could read the beginning of Psalm 51 – popularly known as the “neck verse” – literally saved his or her neck!
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At trial, a jury might, of course, acquit the accused on the evidence, or even their own feelings of neighborliness: according to one contemporary, “most commonly the simple countryman and woman … are of opinion that they would not procure a man’s death for all the goods in the world.”
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In the end, between 20 and 40 percent of those arraigned for felonies in one three-county sample were found not guilty. Even for the remainder, all hope was not lost. Mercy might be bestowed by the judge at sentencing: only about 20–30 percent of those convicted above were sentenced to death. Or the king might, often at the judge’s recommendation, issue a pardon at any point before a sentence of death was carried out: about 10 percent so sentenced were so reprieved. Nevertheless, Tudor England executed about 800 people annually.

As this implies, discretion, community feeling, and an awareness of individual circumstances were part of how the law was carried out: victims prosecuted, JPs indicted, and juries convicted as much on the reputation and circumstances of the accused as they did on the evidence. We see this in the case of those laws designed to regulate personal morality and enforce community standards of behavior by attacking, as one historian has put it, “boozing, brawling and the begetting of bastards.”
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The number of such laws multiplied rapidly between 1550 and 1650, in part because of pressure from Puritans, in part because of growing upper-class anxiety over disorder generally. They included the Act of Uniformity and Acts against recusancy, drunkenness, sexual license and illegitimacy, illegal begging and vagrancy, and unlicensed alehouses. A series of lower courts with overlapping jurisdictions enforced these laws: quarter sessions (meeting four times a year) and petty sessions, presided over by JPs; borough courts in towns; manorial courts in the country; and archdeacon’s and other ecclesiastical courts for moral offenses. Punishments were intended to shame the perpetrators and intimidate would-be imitators. For example, adulterers or fornicators might be paraded around town in a cart or tied to a post in the market and whipped.

Still, cooperation with these laws was not always easy to obtain. Take the regulation of alehouses. The ease of brewing ale was (and is) such that almost anyone could open their house as a “pub.” A government survey of 1577 found some 15,000 alehouses; by the 1630s that number had doubled. One further reason for this was that alehouses grew increasingly important as community centers after the Reformation. That is, when the newly reformed churches withdrew from hosting wakes, wedding receptions, church ales, and other social events, the alehouses stepped in, with one difference. Whereas the whole community might gather at the church for such events, the local elite would not, generally, enter an alehouse. Alehouses were associated not only with drinking, but also with other, even more dubious activities such as music-making, dancing, gambling, and, in some cases, prostitution and the fencing of goods, not to mention the violence and disorder that always accompanied such pursuits. Consequently, critics viewed the alehouse as the enemy of family life and church attendance. Thus Christopher Hudson opined in 1631: “Alehouses are the nests of Satan where the owls of impiety lurk and where all evil is hatched.”
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Little wonder that the ruling elite sought to regulate alehouses. From the reign of Edward VI on, the government required such establishments to be licensed by the local JP. This initiative was largely unsuccessful: a survey of 40 townships in Worcestershire in the 1630s reveals the existence of 81 licensed alehouses, and 52 unlicensed. Things were much worse in Lancashire by 1647, where the 83 licensed alehouses were outnumbered by the 143 unlicensed houses. Obviously, in an age without a police force, the local country gentleman could not look into every cottage which opened its door to the thirsty. The constables responsible for closing down unregulated alehouses confronted two conflicting concepts of order – the elite’s concern for regulation and authority and their fellow villagers’ concern for consensus and neighborliness – not to mention some angry drinkers! On a deeper level, the example of alehouses reveals the limits of royal and aristocratic authority: if the community as a whole rejected a law, that law was virtually unenforceable. Ordinary men and women may have been deferential, but only up to a point.

Perhaps the most notorious form of social deviance addressed by the law concerned witchcraft. Contrary to popular belief, witchcraft accusations were not very common during the Middle Ages and there was no statute against the practice until 1542.
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But between about 1560 and 1640 there was an epidemic of witchcraft accusations and prosecutions in England. Historians have studied this phenomenon in the hope that it may tell us something new about the nature of the Reformation, relations between the genders, and the village communities which produced these disputes. Numerous explanations have been offered. Some see the trend as having been inspired by the rise of the Puritans, though it has been demonstrated that Puritans were no more afraid of witches than other Christians. Others have seen the increase of witchcraft prosecutions as a means of asserting male supremacy over women, since men were almost never accused. It may or may not be a significant counter-argument that at least half the witnesses and accusers were other women. A variant feminist argument contends that women were forced by a patriarchal society to use witchcraft accusations to compete with other women in disputes over reputation and the control of female social space.

Perhaps the most suggestive explanation for the rise of witchcraft accusations was offered in 1971 by Keith Thomas in
Religion and the Decline of Magic.
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Thomas’s argument operates on many levels. At the simplest level, he noted that medieval (Catholic) religion had provided consolation for the ever-present disasters and high death rate in pre-modern England, while that of the Reformation did not. In particular, Catholicism offered remedies in the form of prayers and rituals which, according to Catholic belief, were efficacious. That is, you prayed to St. Margaret, the patron saint of childbirth, to be safely delivered; to St. Oswald, associated in some places with shepherding, to protect your sheep. If you thought yourself bewitched, you could ask the priest for an exorcism. The Reformation continued to emphasize Satan’s great power, but it abolished the beliefs and practices which had been used to fight him, leaving early modern English people feeling alone and helpless in the face of misfortune. No wonder that they feared the evil magic of witches and found it a persuasive explanation for misfortune.

But this does not explain why the accused witch was usually female, old, poor, widowed or single, and well known to her accuser. Typically, a poorer, older woman would approach a neighbor for assistance, especially so after the Reformation when the economy began to slump and monasteries and other institutions which had looked after such individuals were largely abolished. Such a beggar, if turned away, might mutter a curse which, given the precarious nature of early modern life, might seem, later, to have come true – hence the subsequent accusation. Thomas’s argument places the focus on the better-off
accuser
, whose new self-interested worldview rubbed up against an older notion of community, creating guilt and, at times, recourse to accusation and the law. Historians have not taken Thomas’s theory as the last word on the subject. But it does serve to remind us of the power of religious belief to explain the unexplainable; the potential of national economic trends to affect individual lives; the precarious place of women in the local community; and the narrowness and cruelty of which the village neighborhood was capable.

Finally, the village community could transgress the law
en masse
. The most obvious way in which this happened was in revolt or riot. Popular revolt – as opposed to the rebellions led by aristocrats detailed in previous chapters – was a much less serious problem for the later Tudors and early Stuarts than it had been for their predecessors. Much more common during this period were individual riots, although some historians see a political sub-text in nearly all such demonstrations. Riots may be divided (albeit not exclusively) according to motivation: those, usually based in London, directed against some ethnic or national group; “calendar” riots associated with particular festivals and times of year; demonstrations by unpaid or demobilized soldiers or sailors; and, finally, food or enclosure riots. The first were the result of the xenophobia and anti-Catholicism for which the English were infamous during the later sixteenth and early seventeenth centuries. Often, apprentices would attack a foreign merchant or the entourage of a continental ambassador. For example, on July 13, 1618 a crowd of some 4,000 to 5,000 people besieged the Spanish ambassador’s house in London after one of his servants accidentally knocked over a child in Chancery Lane. In the end, the authorities persuaded them to disperse, but other incidents ended in violence and bloodshed.