The same economic, social, and technological developments in sixteenth-century England that supplied the material means for the final overthrow of Celtic Ireland in the Tyrone War (1594–1603) provided the impetus that launched England on its career as a world colonial power. The capitalist overthrow of the English peasantry in the first half of the sixteenth century was the forerunner of the destruction of the Celtic tribal system in the seventeenth. The expropriated and uprooted sixteenth-century English copyholders had their counterparts in the “kin-wrecked” remnants of broken Irish tribes reduced to tenantry-at-will and made aliens in their own country.
But while the adventitious factor of the English Protestant Reformation in the sixteenth century was a decisive condition for the seventeenth-century English option for racial oppression in Ireland, it was not the force that shaped the events that culminated in the establishment of racial oppression in continental Anglo-America.1
Rather, the system of class relations and social control that emerged in the colonies in the seventeenth century rested on the rejection in fundamental respects of the pattern established in England in the sixteenth century. With few exceptions, historians of the origin of racial slavery have generally ignored, or inferentially denied, the significance of this oceanic disjunction in social patterns.2 The “social control” approach which the present work takes to the origin and nature of “the peculiar institution” makes it necessary to revisit the epoch of English history that produced the founders of Jamestown.
On the Matter of “Transitions”
Many economic historians, taking the long view, have agreed with Adam Smith that the transition to capitalist agriculture in England in the sixteenth century was “a revolution of the greatest importance to public happiness.”3 At the threshold of the sixteenth century, however, the English copyholder, plowing the same land that his grandfather had plowed with the same plow,4 had little feeling for “transitions.” If it had been given to him to speak in such terms, he might well have made his case on historical grounds. It was the laboring people – the copyholders, freeholders, serfs, artisans and wage earners – and not the bourgeoisie, who had swept away the feudal system. Out of the workings of the general fall in agricultural prices in the period between the third quarters of the fourteenth and fifteenth centuries as a result of which landlords preferred to get cash rents rather than rents in produce; out of the shortage of labor induced by the worst-ever onset of plague in England, which, within a space of sixteen months in 1349–50 carried off from one-fifth to one-half of the population;5 out of the constant round of bloody and treacherous baronial wars for state hegemony (ended only with the Wars of the Roses, 1450–85), and the desultory Hundred Years’ War with France, 1336–1453; and, above all, out of the Peasant Revolt of 1381, Wat Tyler’s Rebellion,6 which drew a line in the ancient soil beyond which feudal claims would never be reasserted – thus had been wrought the end of the feudal order in England. And so occurred the English peasant’s Golden Age,7 wherein the self-employed laboring peasant, as freeholder, leaseholder, or copyholder, held ascendancy in English agriculture.8
Our copyholder might then go on to say that now the bourgeoisie, burgesses, landlords, merchants and such were apparently attempting to destroy the peasantry; and if that was what was meant by transition to capitalism, the price was too high.9 And he would conclude with a reminder and a warning: he – his kith and kin – had fought once, and would fight again, to maintain their place on the land and in it.10
Fight they did. Between 1500 and 1650, “hardly a generation … elapsed without a peasant uprising.” In local fence-destroying escapades, in large riots, and in rebellions of armed forces of thousands which “at intervals between 1530 and 1560 set half the counties of England in a blaze,”11 the English “commons” fought. In some cases they were allies of the anti-Reformation, sensing the connection between the Reformation and the agrarian changes that threatened the majority of the peasantry. Even then, the peasants still forwarded their own demands regarding land ownership and use, enclosures, rack-rents, etc. Years that their revolts have made memorable include 1536, 1549, 1554, 1569 and 1607.
In these struggles the peasants made clear their sense of the great heart of the matter; in the words of Tawney:
Reduced to its elements their complaint is a very simple one, very ancient and very modern. It is that … their property is being taken away from them … [and] to them it seems that all the trouble arises because the rich have been stealing the property of the poor.12
For this they fought in the northern rebellion of 1536, known as the Pilgrimage of Grace.13 This revolt, set off by Henry VIII’s suppression of monasteries, confronted that king with the greatest crisis of his reign.14 Although ecclesiastical issues united the movement, “the first demands of the peasants were social and not religious”; for them it was a class struggle “of the poor against the rich,” and their demands “against raised rents and enclosures” were included in the program of the movement.15
The peasants fought again in 1549, climaxing a three-year period of “the greatest popular outcry against enclosing.”16 In that year, peasant revolts spread to more than half the counties of England. Led by Robert Ket, himself a landowner, a rebel army of sixteen thousand peasants captured Norwich, England’s second-largest city. They set up their “court” on Mousehold Heath outside the city, where they maintained their cause for six weeks.17 They demanded that “lords, knights, esquires, and gentlemen” be stopped from commercial stock-raising, and rent-gouging, and from privatizing common lands. We can agree with Bindoff that this was “a radical programme, indeed, which would have clipped the wings of rural capitalism.”18
The peasants fought also in 1607, the very year of the founding of Jamestown. These were the peasants of the Midland counties. Thousands, armed with bows and arrows, with pikes and bills, and with stones, sought justice by their own direct action. The later use of the term “Levellers,” though more figurative, still was socially congruent with the literal sense in which these Midland rebels applied it to themselves as “levellers” of fences and hedges set up by the landlords to bar peasants from their ancient rights of common land. To the royal demand that they disperse, they defiantly replied that they would do so only if the king “wolde promis to reforme those abuses.”19
The peasants fought, but in the end they could not stop the “rich … stealing the property of the poor.” Small landholders constituted the majority of the laboring population in English agriculture at the end of the fifteenth century,20 but by the end of the seventeenth century more than four-fifths of the land was held by capitalist employers of wage-labor.21 Well before that time, the majority of the English people were no longer self-employed peasants but laborers dependent upon wages.22
Not only were they to be dependent upon wages, making crops and cloth that they would never own, but at wages lower than they had ever been. In the course of the sixteenth century the real wages of English laborers fell into an abyss from which they would not emerge until the end of the nineteenth century.23 As a typical peasant, “Day labourer was now [his or her] full description … and the poor cottager[s] could expect only seasonal employment at a wage fixed by the justice of the peace.”24 One-fourth of the people of England in the 1640s were but “housed beggars,” the term used by Francis Bacon to distinguish them from wandering roadside mendicants.25
“Why No Upheaval?”
“Why did it not cause an upheaval?” That is a logically compelling question which some historians have posed in light of their findings regarding the general deterioration wrought upon the lives of the laboring population during the “long” sixteenth century, 1500–1640.26 The same question, but in a form more particularly suited to this present study, is, “How did the English bourgeoisie maintain social control?”
In establishing its dominance over the pillaged and outraged peasantry, the English bourgeoisie did, of course, meet rebellion with armed repression (generally after deceitful “negotiations” designed to divide the opposition and to buy time for the mobilization of government military forces). Having traditionally no standing army, the government employed German and Italian mercenaries on some occasions, along with men recruited from the personal retinues of the nobility. But foreign mercenaries, however important they might have been in certain critical moments, for fiscal and political reasons could not supply the basic control functions on a regular basis. And the very economic transformation that brought the laboring masses of the countryside to revolt was simultaneously reducing the ranks of the retainers whom the nobility might profitably maintain for such ongoing repressive services.
Saving a portion of the yeomanry
The solution was found by deliberately fostering a lower-middle-class stratum. It was in the nature of the capitalist Agrarian Revolution that non-aristocrats rose out of the ranks of the bourgeoisie into the highest councils and organs of power, to serve side by side with the increasingly bourgeoisified old-line aristocrats. Likewise, lower and local functions at the shire level were filled by men from the ranks of the lesser bourgeois country gentlemen and exceptionally upwardly mobile peasants turned capitalist farmers, who might buy into a knighthood. But yet another layer was needed, which would be of sufficient number to stand steadfast between the gentry and the peasants and laborers.
But the juggernaut of the Agrarian Revolution threatened the land titles of the laboring peasants of all categories, from those with hereditary freeholds through all the gradations of tenants to the “customary” tenant-at-will.27 The state therefore made a political decision to preserve a sufficient proportion of peasants – preference going naturally, but not exclusively, to hereditary freehold tenants – as a petit bourgeois yeomanry (typified by the classic “forty-shilling freeholder”28) to serve in militia and police functions.29
The case has not been better understood or stated than it was by Francis Bacon, looking back at close range in 1625 to write his History of the Reign of King Henry VII (1485–1509):
Another statute was made for the … soldiery and militar[y] forces of the realm.… That all houses of husbandry, that were used with twenty acres of ground and upwards, should be maintained and kept up for ever; together with a competent proportion of land to be used and occupied by them; and in no wise severed from them (as by another statute in his successor’s [Henry VIII’s] time was more fully declared).… This did wonderfully concern the might and mannerhood of the kingdom, to have farms of a standard, sufficient to maintain an able body out of penury, and did in effect amortise a great part of the lands of the kingdom unto the hold and occupation of the yeomanry or middle people, of a condition between gentlemen and cottagers or peasants.… For to make good infantry, it requireth men bred not in a servile or indigent fashion, but in some free and plentiful manner. Therefore if a state run most to noblemen and gentlemen, and that the husbandmen and ploughmen be but as their work folks and labourers, or else mere cottagers (which are but housed beggars), you may have a good cavalry, but never good stable bands of foot [soldiers].… Thus did the King secretly sow Hydra’s teeth whereupon (according to the poet’s fiction) should rise up armed men for the service of this kingdom.30
Bacon likened the process of expropriation of the peasants to the necessary thinning of a stand of timber, whereby all but a few trees are cleared away to allow sound growth of the rest for future needs. By this policy, he said, England would escape certain ills besetting the governments of other countries such as France and Italy
[w]here in effect all is noblesse or peasantry (I speak of people out of towns), and therefore no middle people; and therefore no good forces of foot; in so much as they are enforced to employ mercenary bands of Switzers and the like for their foot [soldiers].31
Here was the recognition of the curbs that policy must sometimes impose on blind economic forces, restraining “the invisible hand” in order to avoid promoting “an end which was no part of [the] intention” of the ruling class.32 It was in the nature of the transformation powered by the capitalist Agrarian Revolution that the non-aristocratic bourgeois gentry should move increasingly into the control of affairs. On the other hand, the deliberate preservation of a portion of economically independent self-employed and laboring small property-owners was not an economic necessity but rather a first derivative of the economic necessities, a political necessity for the maintenance of bourgeois social control, upon which the conduct of the normal process of capitalist accumulation depended. (Even so, it was not a total loss economically, since the yeoman was a self-provider and a principal source of tax revenue.)33
The inner conflicts of the bourgeoisie, the conflicts with self in its own various parts – now the governors of a strife-torn nation among striving nations; and, again, as land-grabbing, rack-renting landlords, gentry, merchants, squires, and occasional interloping peasant upstarts, “like tame hawks for their master, and like wild hawks for themselves,” as Bacon put it34 – caused this basic policy to evolve by vicissitudes. But the center held: the same guiding principle obtained when Bacon wrote his history of Henry VII’s reign that been in force more than a century before.
The successful day-to-day operation of the social order of the newly ascendant bourgeoisie depended upon the supervisory and enforcement functions performed at the parish level by yeoman constables, church wardens, Overseers of the Poor, jailers, directors of houses of correction, etc.35 They were charged with serving legal orders and enforcing warrants issued by magistrates or higher courts. They arrested vagrants, administered the prescribed whippings on these vagrants’ naked backs, and conveyed them to the boundary of the next parish, enforcing their return to their home parishes. As Overseers of the Poor, they ordered unemployed men and women to the workhouses and apprenticed poor children without their parents’ leave. Trial juries were generally composed of yeomen, and they largely constituted the foot soldiery of the militia, the so-called “trained bands.” They discharged most of these unpaid obligations unenthusiastically, but with a sense of duty appropriate to their social station.36 Nevertheless, prior to the Great Rebellion and Civil War of the mid-seventeenth century, yeomen militiamen showed themselves less than reliable for major armed clashes with peasants. In Ket’s Rebellion they were left behind when the final assault was made by the king’s forces of cavalry and one thousand foreign mercenaries.37 And, on account of the “great backwardness in the trained bands,” the king’s commanders were constrained to rely exclusively on the gentlemen cavalry and their own personal employees in the battle against one thousand peasant rebels at Newton in the Midlands in 1607.38
Yeomen did enjoy certain special privileges. For one, they were entitled to vote for their shire’s member of Parliament. Of far more substantial importance was their right to apprentice their sons to lucrative trades and commerce, and to send their sons to schools and universities.39 But like the civic duties to which they were assigned, these privileges were theirs because, and only because, of their property status. It never occurred to the ruling classes of England that they could enlist such a cheap yet effective social control force from the ranks of the propertyless classes, the housed beggars, laborers and cottagers, or the vagabonds. That notion would await the coming of the Anglo-American continental colonies.
The “Labor Question”: Conflict and Resolution
The ruling class effected the same balance of class policy and the blind instinctual drive for maximum immediate profits by its individual parts in regard to the costs of employment of propertyless laborers.40
In the century and a half, 1350–1500, following the great plague, it had been seen that no amount of legislation could keep down labor costs where labor was in short supply. Laws designed to prevent laborers from moving about in search of higher wages, and laws fixing penalties for paying or receiving wages in excess of statutory maximums, were equally ineffective in restraining wages. Half a dozen such laws were passed in that period,41 but by its end the laborer’s real wage was nearly thrice what it had been at its beginning.42 The objective might have been accomplished if it had been possible to reimpose serfdom, but the landlord class no longer had the power to do so.43
But the emergence of a massive labor surplus in the early decades of the sixteenth century presented the employing classes with an opportunity which they were quick to exploit for regulating labor costs. At a certain point it occurred to the government to redress the imbalance by instituting slave labor. Parliament accordingly in 1547 enacted a law, 1 Edw. VI 3, which would have had the effect of creating a marginal, yet substantial, body of unpaid bond-labor, to serve as an anchor on the costs of paid labor. Refusing to recognize the legitimacy of the offspring of their own agrarian revolution, the ruling class presumed that every unemployed person was merely another “vagabond,” willfully refusing to work and thus frustrating the proper establishment of fair wages. The 1547 law sought remedy along the following lines:
who so ever … man or woman [being able-bodied and not provided with the prescribed property income exemption] shall either like a serving man wanting [lacking] a maister or lyke a Begger or after anny other such sorte be lurking in anny howse or howses or loytringe or Idelye wander[ing] by the high waies syde or in stretes, not applying them self to soem honnest and allowed art, Scyence, service or Labour, and so do contynew by the space of three dayes or more to gither and offer them self to Labour with anny that will take them according to their facultie, And yf no man otherwise will take them, doe not offer themself to work for meate and drynk … shall be taken for a Vagabonde …44
Any person found to be transgressing the provisions of the law, upon information provided to a magistrate by any man, was upon conviction to be formally declared a “vagabond,” branded with a V, and made a slave for a period of two years to the informant. The slave was to be fed only bread and water and, at the owner’s discretion, such scraps as the owner might choose to throw to the slave. The law specified that the slave was to be driven to work by beating, and held to the task by chaining, no matter how vile the work assignment might be. Such a two-year slave who failed in a runaway attempt was to be branded with an S and made a slave for life to the same owner from whom he or she had tried to escape. A second unsuccessful attempt to escape was to be punished by death.
This was not just one of the many anti-vagabond laws enacted by the English Parliament in the sixteenth century;45 it was distinguished from others by three features: (1) the definition of “vagrancy” was extended to cover any unemployed worker refusing to work for mere board; (2) the beneficiary of the penalty was not the state in any of its parts, but private individual owners of those who were enslaved; (3) the enslaved persons were reduced to chattels of the owners, like cattle or sheep, and as such they could be bought, sold, rented, given away, and inherited (“as any other movable goodes or Catelles”).46 With this 1547 law, the quest for wage control had passed its limits in a double sense, by going to zero wages, and by exceeding the limits of practicability. In 1550, Parliament repealed the law, citing as a reason the fact that “the good and wholesome laws of the realm have not been put in execution because of the extremity of some of them.”47
Many contemporary observers perceived the causal connection of the officially deplored depopulating enclosures of arable land and the growth of vagrancy, and they viewed the case of the displaced peasants and laborers with sympathy. “Whither shall they go?” asked one anguished commentary. “Forth from shire to shire, and to be scattered thus abroad … and for lack of masters, by compulsion driven, some of them to beg and to steal.”48 During the life of the slave law, bold, honest preacher Bernard Gilpin made the point in a sermon in the presence of Edward VI himself: “Thousands in England beg now from door to door who have kept honest houses.”49
There were those who considered such facts a justification for slavery as a means of saving these victims of expropriation from running further risks to their very souls, by the sin of idleness. But a widespread reluctance to attempt slavery as the answer seems to have had much to do with the paralysis of the will that kept the law from being “put in execution.”50
The interval between the passage and the repeal of this slave law was also the period of “the greatest popular outcry against enclosing,”51 which, as we have noted, took the form of mass peasant revolts, culminating in Ket’s Rebellion. John Cheke, scholar, member of Parliament and former tutor of Edward VI, lectured the Norfolk rebels on “The Hurt of Sedition,” linking their contumacy with the spirit of lawless vagabondage plaguing the country.52 Certainly the rebels were as aware as anyone else of the connection between the threat they were facing, that of depopulating enclosures, and the rise of vagrancy. But there seem to be no reports as to the attitude, if any, that the rebels may have held towards vagrancy in general, or toward the slave law of 1547 in particular. Perhaps we may agree with Davies in seeing this fact as evidence that the law was effectively defunct in 1549.53 In any case, the Ket rebels evinced no disposition to clear their skirts of the splatters of John Cheke’s vagabond-baiting.
What they did say, touching bondage, was this: “We pray that all bondmen may be made free, for God hath made all free with his precious bloodshedding.”54 There has been some conjecture about the significance of the inclusion of this demand in the program issued from Mousehold Heath.55 Whatever scholars may finally conclude on the point, it was a demand that sounded in sharp dissonance to the cruel clanking of chains in the 1547 slave law. The rebels were, furthermore, voicing the main moral scruple which contributed so much to the nullification of the law: namely that it was wrong “to have any Christen man bound to another.”56
“Doubtless, moral scruples could have been overcome,” Davies says, “if slavery had been practical and profitable.”57 He explains that “dealing with a single slave or a small number … slavery would have been utterly uneconomic; the constant driving, the continuous need to check into the work done, the ease of flight, the difficulty of recapture, easily outweigh any advantage which might have accrued from ‘cheap labor.’ ” He then takes note of a fact that is of particular relevance for the understanding of racial slavery and social control. He contrasts the situation as it would have obtained under the 1547 law in England and the slavery system in continental Anglo-America, which was operable only because “half the population of the South [was] employed in seeing that the other half do their work.”58 The maintenance of such a system of social control was neither an economically valid option nor a necessary resort of bourgeois social control in sixteenth-century England. In this attempt to turn “anti-vagabondism” into a paying proposition by enslaving laborers, the bourgeoisie found that its reach exceeded its grasp. When in 1558–59 diehards proposed that the old slave law be reinstated, even with amendments to lessen its “extremity,” the idea failed of adoption.59
Wages had to be paid, low though they were
The slave-law experiment had revealed to the English employing classes a limit beyond which they could not go, but they were not disposed to miss the opportunity to validate their prerogative to control labor costs by state intervention.60 The result was the Statute of Artificers,61 which was made law on 10 April 1563.62 Whether the aim of controlling labor costs was achieved by this act, and, if so to what degree, is a subject beyond the concern of this present work.63 What is significant is that it remained the basic English master-servant law for more than two and a half centuries until its repeal in 1813.64 It represented the achievement of an historic equilibrium – after two centuries of class struggle, blow and counter-blow – between high wages and unpaid bondage, between freedom and compulsion, in the disposition of alienable labor power.65
English historians of the liberal, labor and socialist tendencies have correctly emphasized the compulsion aspect of the Statute of Artificers.66 This emphasis would seem to be altogether appropriate for the study of the continuum of English national development. But when one comes to consider Anglo-American history, particularly during the crucial seventeenth century, special concern needs to be directed to the limits of compulsion under the Statute of Artificers, to that counter-balancing residue of freedom of labor which experience had shown to be necessary for the maintenance of social control in England in order that the process of normal capitalist accumulation might go forward. Consider briefly the relevant provisions of the Statute of Artificers in terms of a compulsion-versus-freedom analysis.
Any unpropertied, unemployed, unapprenticed man between the ages of twelve and sixty was obliged to work at farm labor by the year in his locality for any farmer requiring his services. But he had to be paid the established wages. Equally significant, recalling the law of 1547, the 1563 Statute of Artificers put the onus on the employers to offer employment, rather than on the workers to find employment, before the penalties of vagrancy could be imposed upon the worker.
Workers who entered into contract to perform specific works were compelled to continue in them, without leaving to seek other employment, until that job was finished, on penalty of a month in jail and, in some cases, being liable to a suit (in “Action of Debt”) by the employer for damages amounting to five pounds sterling. But the punishment entailed no extension of service to the private employer, and the employer had no further recourse than the debt action.67
Workers bound to serve by the year were subject to a penalty of thirty days in jail for leaving their employers’ service before the completion of their terms. But they could terminate their employment legally by giving three months’ notice prior to the scheduled completion of their terms. If a person wished to go outside his own parish or town to take a job, he had first to secure from the authorities a formal written testimonial from the town authorities. If such a worker failed to present such a testimonial when taking a job outside his own town or parish, he was to be given twenty-one days to obtain the needed testimonial, being held in jail the while. Upon failure to secure the testimonial within that time, he was “to be whipped and used as a Vagabond.”68
Male youths were indentured as apprentices to employers, usually for seven years, but sometimes for longer periods. No person might, without prohibitive penalty, practice any trade without having completed the appropriate apprenticeship. Therefore, the more lucrative the prospective trade, the greater was the incentive and the less the compulsion involved in the recruitment of apprentices. In the more remunerative occupations, apprenticeship was restricted to sons of men already in the trade, or to owners of property yielding an annual revenue of two or three pounds. For more common trades, there were no property or family qualifications, but the number of apprentices might be limited to a quota of one apprentice to one journeyman, after an initial quota of three to one. For “Apprenticeship to Husbandry [farming],” however, there were no restrictions except as to age, and it had generally more the aspect of impressment than selection of a career. Under a policy conceived “for the better Advancement of Husbandry and Tillage,” any male between the ages of ten and eighteen and “fit” for such employment was obliged to enter into an “indenture” to serve as a “husbandry apprentice” to any farmer who required him for that purpose, for a term lasting until the youth reached twenty-one years of age at least, and possibly until he was twenty-four, depending upon the terms of the individual arrangement.
Refusal to serve as an apprentice was punishable by commitment to jail until the culprit was placed under bond to assure compliance. An apprentice was forbidden to marry without the employer’s consent. He was a member of the employer’s household and was obliged to obey the employer in any legal command.
It would seem therefore that, observing the limits of the law of 1547, the English bourgeoisie had decided – as far as male workers were concerned – to venture no further in that direction than the terms prescribed for Apprenticeship to Husbandry. Whatever the apprentice’s infractions of the terms of the apprenticeship, his punishment for them entailed no extension of his time of service. If the proper authorities approved, in special circumstances and if the apprentice consented, he might be assigned to another master.69 The apprentice could be freed from his service before the end of his term upon a validated complaint made to the authorities (magistrates, mayors, etc.) of ill-treatment or of misuse, including failure to provide instruction in the trade as agreed upon in the indenture.
Finally, any woman of the laboring class, between the ages of twelve and forty, being unmarried and “forth of work” (unemployed) was compellable to serve by the year, week, or day in any “reasonable” sort of work and at such wage rates as any two magistrates or aldermen, or the mayor, having local jurisdiction might assign for her. Upon refusal so to serve, the woman was to be held in jail “until she shall be bounded to serve.” Even if impressed for labor, she was to be paid wages. At least as far as this law was concerned, there was no impediment to her marrying and chancing thereby whatever better escape such a course might afford.
The oppressive intent of the Statute of Artificers was obvious on the face of it. In a situation made especially difficult by the oversupply of labor, workers were compelled to work for whatever the employing class, through the magistrates, chose to offer, and to forgo any improvement through individual or collective bargaining. By both its general and its apprenticeship provisions, the statute consigned the generality of the wage-earning population to agricultural labor. Women workers were excluded from apprenticeship and made to serve in the lowest-paid drudgery. The severest censures of the anti-vagabond laws were threatened against the worker who sought to move from one place to another to improve his lot, unless he bore the magistrate’s certificate of permission. Yet oppressive as that law was, neither its contrivers nor its victims would have believed that within several short generations, in a “New Albion,”70 English workers would be worked as unpaid chattel bondmen and bondwomen, bought and sold from hand to hand for long terms of years, subject, for infraction, to extensions of that servitude for private owners; denied the right to marry, their children “bastards” by definition – and that such would be the common lot (not a real apprentice in a hundred) under “the custom of the country!”
The Poor Law as Social Control
A third major problem of social control – after the peasant revolts and labor relations – arose out of the mass pauperization wrought by the Agrarian Revolution. The presence of a set of persons having no fixed abode was not a new phenomenon in England. But prior to the sixteenth century it was more likely to be associated with a shortage of labor, leading laborers to slip their villein bonds to take better offers from new employers. The vagrancy problem of the sixteenth century, by contrast, was associated with a protracted general decline of wages, and with a stubborn struggle by laboring people to maintain their rights to stay on their land.
The extent of this “structural unemployment,” as it would be called today, is not statistically verifiable,71 but it cannot be doubted that its appearance presented the state with serious difficulties. It was fundamental; a by-product of the vitality of ascendant capitalism. It was intimately linked with the resistance of the copyholders to expropriation of their lands. In the words of Queen Elizabeth’s chief adviser, Lord Burghley, the problem arose from “the depopulating of whole towns … and keeping of a shepherd only, whereby many subjects are turned without habitation and fill the country with rogues and idle persons.”72
The repeal of the 1547 slave law (1 Edw. VI 3), after three years of ineffectualness, marked the first glimmer of official acknowledgement that unemployment was not synonymous with willful idleness, vagabondage and roguery. A series of laws still sought to draw a significant distinction between the “impotent poor,” who were to be relieved, and the “sturdy beggars.”73 The former were to be certified and provided for by propertied persons of their parishes. But the “sturdy beggars” were still to be subject to whipping, to transportation to their home parishes, and, in some cases, to exile or hanging as felons.
But the threat to the orderly transaction of affairs continued. “All parts of this realm of England and Wales,” said Parliament in 1572, “be presently with rogues, vagabonds, and sturdy beggars exceedingly pestered … to the great annoyance of the common weal.”74 They had become so emboldened by their desperate plight that in 1580 they even pressed their clamor upon the Queen personally “one evening as she was riding abroad to take the air.”75
“Many thousands of idle persons are within this realm,” warned Hakluyt in 1584, “which, haveing no way to be sett on worke, be either mutinous and seeke alteration in the state, or at least [are] very burthensome to the commonwealthe.”76 Two years later, another observer expressed fear that a surfeit of paupers must lead to “divers kinds of wrongs, mutinies, sedition, commotion, & rebellion.”77
A royal decree of 1593 demanded stricter enforcement of the laws against the multitudes of rootless people who were wandering the highways, begging and extorting relief from the more prosperous persons they encountered. It was said that many of the predators were military and naval veterans “exacting money on pretense of service in the wars.”78
In time the government came to see, as Nicholls, the pre-eminent student of the Poor Law, puts it, that “severe punishment loses its terrors in the presence of actual want – that a man will beg, or steal, or resort to violence rather than starve;” and that it was not wise to force the unemployed into that hard choice.79 In 1601 Parliament accordingly made the law (43 Eliz. 2) that was to govern English poor relief for more than three centuries.80 It provided for a system of guaranteed work to be maintained under the supervision of the Overseers of the Poor of each parish, comprised of the church wardens and from two to four other property owners. In central locations, called workhouses, or in their own abodes, the otherwise unemployed persons were to be set to work on materials such as hemp, wool, iron and thread. The proceeds from their products were to defray the costs incurred and to provide for payment for the workers “according to the desert of their work.” Refusal to work on such terms was a legal offense, punishable by a term in the house of correction or common jail. Funds needed for furtherance of work and relief programs were to be raised by the Poor Rate, a regular tax periodically assessed against the property holders of each parish.81
In practice this formal relief was supplemented by illegal or semi-legal resort by the pauperized population to unauthorized infiltration into supposedly guild-protected trades, or by “squatting” on wastelands to eke out enough of an existence to escape the ministrations of the Overseers of the Poor.82 But to the extent that such diversions were attempted, they were but supplementary to the workings of 43 Eliz. 2, the Poor Law, the ultimate monumental “attempt on the part of the powerful Tudor state to prevent the social disorder caused by economic changes, which in spite of its efforts it had not been strong enough to control.”83
Notorious as the operation of the English system of Poor Relief was ever to be for its parsimony and sanctimony, the right of workers to be paid wages for the work done under its program, and the right to leave that employment if and when a turn of fortune – a legacy, a good apprenticeship opportunity, a decent job, or, for a woman, a marriage prospect – occurred, were matters never questioned by those who first established the system in 1601. Yet within a few decades, irreducible rights and privileges of the most condemned ward of the parish were to be denied to the general run of English workers performing the most essential labor in Anglo-America. To those contrivers of the Poor Rate, it would have seemed unthinkable that the support of the poor might, even in the slightest degree, be derived from impositions on other propertyless laborers.84
Oppression of Women
The social transformation wrought by the Agrarian Revolution and the rise of capitalism in England was indeed great. But the class coming to power found no need to amend common or statute law with regard to the subordination of women; it found male domination to be no less congenial to the functioning of the new order than it had been to the old.85
Given the absence of a women’s rights movement – the first concerted cries for justice would not be heard for another two centuries; and, given the quick bourgeois appetite for wealth accumulation, making their historical ruling-class antecedents dilettantes by comparison – the brutal treatment of women in the new era proceeded unchecked.
As it was in man’s record of the beginning, and had since been, the non-person civil status of women should ever be, so far as the bourgeoisie of England was concerned.86 Classed with children in matters of civil rights, women continued to be classed with heretics when punishment for treason was prescribed; only women were to be burned at the stake for that offense.87 And, like servants who killed their masters, women who killed their husbands were guilty of petty treason. By law, persons convicted of a felony were subject to the death penalty. But priests so convicted could be pardoned for the first offense by claiming “benefit of clergy,” a relic of a former time when cleric felons were dealt with by ecclesiastical courts. (Persons granted this privilege were to be branded in the meat of the thumb to prevent their claiming that right a second time.) From the eve of the sixteenth century onwards, increasing categories of non-clerical men were admitted to this privilege. But women, barred by gender from being priests, were excluded from this mercy. They were granted full access to the benefit-of-clergy plea only in 1692.
The men of the ruling classes had immemorially exercised sex-class privileges at the expense of the women of the laboring classes. In feudal times in England the custom said to have been most hated by the serfs was that of “merchet,” which required payment in kind or in money by the serf to the lord when the serf’s daughter was to be married.88 This was considered the most degrading and certain mark of servile status, since it forced the serfs to acknowledge possessory claims of one degree or another by the lord to every female virgin among his “family” of “dependants.” The same theme was evident in the fact that a woman serf who married a free man and was later divorced by him again became a serf of her former lord. On the other hand, a woman who had originally been free but who married a serf herself, fell to the status of serfdom, which she could not escape by being divorced; instead she remained a serf, at least during the lifetime of her husband. The widow of a serf was designated by the special term “widewe,” meaning the lord’s widow.89 She was obliged to guarantee production sufficient to meet the lord’s due. Failing in that, a woman was required to surrender her holding, or else to make arrangements (with the lord’s sanction) for the proper performance of her duties, as the ward of some man.
In the new order, women of the propertied classes continued to be hostages to the property to which they were linked through inheritance laws. As before, the cult of female chastity, with all its concomitant social and legal repression and sanctions imposed on women, remained an essential of the process of fortune-building through inheritances and marriage portions.90 When the most important decisions were to be made concerning a woman’s life, her personal interests or preferences carried less weight than the property and power interests of the men with whom her life was involved.91 As of old, but with possibly greater cynicism, fatherless under-age daughters were, as “wards,” dealt about like commodities. A man well regarded by the Court of Wards stood to gain when such a girl or woman was made his ward, for that brought him control of her property with all the opportunity for self-advancement it might make possible for him.92
There was to be for women no reformation in the Reformation. The notorious 1547 slave law, even in its general extremity, found a special disability to impose on the woman. If a man slave, by coming into an inheritance or otherwise, secured a “convenient living” he was to be freed. If, for instance, such a possibility presented itself in the form of marriage, a male slave had the unimpeded right to free himself by that course. But the female slave, if she were under twenty years of age, could avail herself of such an opportunity only if she could secure the permission of her owner to do so.93 And, as we have seen, the Statute of Artificers of 1563 assigned unmarried, unpropertied women to the lowest labor status. If they were unemployed and between the ages of twelve and forty, they could be compelled to serve in any employment to which the magistrates might assign them. Furthermore, their wages were set at only about half of those paid to men doing comparable services.94
Above all, there were the reasons of state. The “ancient rights and liberties” of the small-propertied and propertyless classes were, as noted, subject to heavy assault in the sixteenth century. But the new order brought no threat to their rights and liberties as English men vis-à-vis English women.
Sir Francis Bacon voiced official sanction of this limitation on interference with traditional ways, saying that male domination and patriarchy were “natural and more ancient than the law.” Addressing “The Lord Chancellor and all the Judges of England” in his capacity as Solicitor-General in 1608, Bacon set forth the premise that monarchy was the best form of rule because its authority was first of all based on the “platform” of male domination and patriarchy.
The first [platform], he submitted, “is that of a father or chief of a family; who governing over his wife by prerogative of sex, over his children by prerogative of age, and because he is author to them of being, and over his servants by prerogative of virtue and providence (for he that is able of body and improvident of mind is natura servus), is the very model of a king.95
But before the king is every man, every man must be a king.96 In feudal England, in the exercise of male domination over the wife, the serf’s claims had priority over those of the feudal lord. The wife was a “feme covert,” against whom the lord had no process of claim except through the husband. And in the new day, after the repression of the Pilgrimage of Grace, Henry VIII did not venture to pursue vengeance against the persons of a number of women who had been active rebels. The definitive work on this event explains that royal discretion as follows:
Henry knew that in the excited state of public opinion it would be dangerous to meddle with them. His reign was not by any means the age of chivalry, but there still remained a good deal of the old tribal feeling about women, that they were the most valuable possessions of the clan, and that if any stranger, even the King, touched them all the men were disgraced.97
In the “new age”, a man’s home was still to be his castle and, if the matter were forced to an issue, a woman’s prison. Men could divorce women; women could not divorce men. Some time late in the sixteenth century, Joan Wynstone ran away from her husband John, a man of humble station.98 Taken up as a vagrant, she was sentenced under the law to work as a servant of the husband she had fled. Finding that life intolerable, Joan again escaped, but she was again recaptured. For this second offense she was hanged on the gallows.
The poor and laboring people of England might not prevail over their kings, or their queens, or their lords and masters, but the man of these classes could be king and lord and master to his wife. Male domination in this way served as a link between the beaten-down peasants and proletarians and the very authority that was beating them down. As such it operated as another instrument of ruling-class social control, disguised as the natural outcome of the sexual differentiation occurring in the population.
No English man of that day, from Lord Chancellor Francis Bacon to lowly John Wynstone, would have imagined that propertyless, yet non-apprenticed, English men would ever be so degraded (as they would have considered it) that under the law they might not have their own “castles” and the male privileges appertaining to their gender status.99 Nor would Bacon or Wynstone have thought to find in “nature” an apology for the assertion of a general sexual privilege by one set of men – propertied and unpropertied – over all women of another set of the propertyless population. Yet the first of these inconceivable ideas would not only be thought of, it would become an essential operating principle of the Anglo-American plantation economy.100 And, more amazing, the second, thought of and instituted, would become an indispensable element in the maintenance of bourgeois social control in continental plantation Anglo-America.101