How to commit treason once you are dead

Shane O'Neill died in 1567. In 1569, he attainted for high treason in the Parliament of Ireland by the Viceroy Sir Henry Sidney. Its long been a matter of interest to Irish historians that this happened: some speculate that Sidney and the crown wanted to get O'Neill's property in Ulster. A recent essay by Ciaran Brady argues that the trial was an arena for making a political point. Brady argues that the crown did not need to take O'Neill's property, instead what the act of attainder was was a complex act of political propaganda. Its long preamble asserted English perpetual sovereignty over Ireland and particularly over Ulster. Its importance was as an ideological statement of English power in Ireland and as a statement that both the native Irish and the English colonists were bound by that power. If O'Neill was a subject then he was a subject in the same way as the English colonists and so were all his Irish compatriots. The legal case was a political statement.

Its an interesting argument and Brady is probably right about Sidney's motivations. It does though make you think about the purposes of early modern and even of modern justice. Quite frequently you think of justice as a three party relationship: there is the offender, the judge and the audience outside. The offender is judged by the law to have committed a crime. The judge sentences to send a message to him and to the audience outside that crimes have consequences. The judge sends a message to the audience outside that crimes will meet with retribution: he satisfies bloodlust. What Brady shows is that there may be another dimension to a crime or a criminal trial: a trial establishes what is true and what is legal. So for example I may want as the state to demonstrate that Irishmen are subjects to the English Crown, thus I pass an Irish act of Parliament to assert that Irishmen can commit treason in the same way as the English.

To come to my title, the point is that O'Neill actually didn't do anything to commit treason. Rather than thinking about his punishment (the disinheritance of his heirs) as a punishment, its worth thinking about it as an argument. John Austin famously argued that all speeches or arguments were acts: Austin was right but what the case of Shane O'Neill reveals is that many acts are actually arguments.

Henry VIII's will

In 1536, the north rose up in the largest revolt between the Wars of the Roses and the English Civil War. Robert Aske, one of the leaders of that revolt, declared later under interrogation that one of his concerns was the succession: he said, under interrogation, that

he and al wise men of those partes then grodged at [28 Henry VIII c. 7] and that for diverss causes. On was that befor that estatut, sith the Conquiror, never King declared his Will of the crowne of this realme, nor never was ther known in this realme no such law

Aske was reflecting on one of the most controversial legal changes of Henry VIII's reign. In 1534, 1536 and 1544 Henry passed three succession acts. Three acts which attempted to will the crown to a particular descendent.

Eric Ives in an article in the journal Historical Research describes the acts. The 1534 act was not particularly radical as all it did was recognise that Henry had married a new wife and that his old marriage was illegitimate: it merely entrenched the reformation (the merely is partly ironical). However in 1536 and 1544 Henry went further. He not merely declared that his marriage to Aragon (and Boleyn) were invalid: he also said that after the demise of his first legitimate heir- Edward- he was able to set the succession. In 1536 he left it at that: and we are left to surmise who he meant. Ives guesses that he wished to place Richmond his son by Bessie Blount and then Elizabeth and Mary on the throne. Ives argues that the act was a nudge aimed at James V of Scotland, Henry's nephew. In 1544, after Richmond's death, the second act made the succession more explicit and this time we can see how it was aimed. Henry reasserted that he could establish the succession. Contrary to common law, he opted that after Edward the succession would not go to the first legitimate heir- James V- but would go to his basterd daughters- Elizabeth and Mary and after them would go to the heirs of his youngest sister Mary- the Grays.

This had vast consequences running through the centuries. Most immediately it set a pattern of confused successions which ran up until 1603. When Edward died in 1553, he left no heir. Edward nominated Jane Grey to succeed him- arguing that his father had made Mary illegitimate and that he might therefore will the crown to Jane. Jane and Mary for nine days battled it out and Mary eventually won becoming queen. In 1553 when she made her own birth legitimate- repealing the act declaring that Catherine of Aragon and Henry were not married, Mary was unable to repeal the act declaring Elizabeth her heir. The Lords and Commons, Sir William Paget told her, would not accept such a repeal. So Mary died too without issue and left the throne to Elizabeth. Elizabeth too disliked the act. Both her and Mary claimed they inherited the crown naturally and not by the 1544 act: and Elizabeth too sought to shut out the next in line- the Grey family. Elizabeth waited on the matter without deciding what to do and in the end James rather than the Greys succeeded. In 1553, 1558 and 1603 the absense of a straightforward succession and the availability of two methods of succession (common law and Henry's acts) caused confusion.

More especially though it led to something else. Henry's acts proceeded from the crown to Parliament and the Commons and Lords recognised what Henry had done. In 1553, if Ives is right, they prevented Mary changing the succession acts to stop Elizabeth. Just as importantly during Elizabeth's reign on two occasions Parliament decided that it faced a situation where Elizabeth might die: if she died the establishment decided that a Parliament would have to be calleed to invalidate the succession of her heir presumptive- the Catholic Mary Queen of Scots. As a constitutional precedent therefore Henry's act was important to the Bond of Association of 1585, and was discussed even as late as the exclusion crisis in 1679-81. Henry's acts though were invalidated by the Stuart succession of 1603- James became King, whereas Henry would have intended Edward Seymour to succeed Elizabeth. Furthermore lawyers echoed the judgement of Robert Aske. Sir Matthew Hale concluded that the experiment of Henry's acts had never worked and so were not noteworthy in England's constitutional history.

Ives shows that Hale was wrong. The experiments are noteworthy. Without Henry's act, neither Mary (1553-8) nor Elizabeth (1558-1603) might have become Queen. Elizabeth in particular is a key monarch in British history: it is afterall her Church of England that survives and she was the first supreme governor of that Church (Henry was the supreme Head). Furthermore Henry's act, just as the Reformation acts, established that Parliament was the arena in which such matters might be discussed. Ives's article reasserts their importance in the constitutional revolutions of the 16th Century and thus is to be welcomed.