Sunday, 19 January 2020

The Unlawful Games Act 1541


Controlling Recreation and Maintaining the Class Divide
Richard J. Hayton
BA Medieval and Early Modern History
While the seventeenth-century puritanical laws against entertainments are infamous in English history, it is rather little-known that several Acts had already infringed on the recreational freedom of the working class in the centuries prior. The most complex and intrusive of these arrived during the reign of Henry VIII in 1541; this was the ‘Acte for the Mayntenance of Artyllarie, and debarringe of unlawful Games’, or the Unlawful Games Act. Essentially, it forbade the lower classes from playing most recreational games, such as cards and dice games, but also the likes of tennis and bowling, whilst reserving the privilege for the wealthy and highborn. The ‘middling sort’ – those beneath the gentry – could be met with hefty fines for hosting or playing games, except for at Christmas. The other part of the Act is more notorious, as it was the last in a series of medieval and early-modern laws which required Englishmen to regularly practice longbow archery. Mandatory archery practice and the prohibition of games might seem like an unusual pairing, but as the preamble of the Act explains, the popularity of newly-devised games was seen as the “reason where of archery is sore decayed and daily [was] like to be more and more minished.”[1] Yet, this explanation surely seems terribly inadequate, to believe that the competition of other games was as detrimental to archery as to necessitate a large-scale ban for the lower classes. What else might have inspired such an Act? Was the intention to protect the realm from civil disorder arising from games, or was the Crown inspired by an ever-growing moralism which condemned “noxious, inordinate and unhonest games”?[2] This article assesses potential rationales for the Unlawful Games Act 1541 and, considering it within a sequence of oppressive medieval and early modern laws, exposes a longstanding precedent of conditioning social order, controlling which activities and behaviours were appropriate for different classes. The Unlawful Games Act took advantage of a moralist society in order to reserve recreational games as privileges of the peerage, while maintaining the obligation of the ‘middling sort’ to work in accord with other legislation.

It would be erroneous to wholly disregard the Act’s provided explanation, as indeed the rationale of protecting archery cannot be entirely disingenuous. In fact, it is well evidenced; over a century earlier in 1388, an Act of Richard II imposed a ban on a number of games, (chief among them a new sport akin to cricket), while simultaneously commanding serfs and peasants to practice the longbow.[3] Henry VIII’s particular concern with preserving archery is apparent, too, as in an era in which archery was in true decline, Richard II’s law of required practice was reasserted and extended by the Longbow Statute of 1515. The preservation of the longbow can be understood as a matter of English pride, as the victory provided at Agincourt was renowned, and not too distant in memory. Yet, ultimately it no longer represented the same profound military advantage, even if the Unlawful Games Act did speak of England losing its skilled bowyers to Scotland in terms of divulging a secret military technology.[4] Englishmen were abandoning archery not because of the distraction of games, but because of a loss of faith, and the failure of magistrates to enforce practice laws.[5] The correlation between the abandonment of archery and the popularity of other games can be readily disproved by the behaviour of local magistrates. While most towns enforced the prohibition of unlawful games, they still neglected to seriously enforce the archery mandate.[6] The ban on games was comparatively acceptable, demonstrating a grave lack of enthusiasm for archery. In 1577, the Privy Council conceded that archery might instead be in decline because people believed it “to be no use for service as they see the caliver so much embraced at present.”[7] This was the age of gunpowder, and to compete militarily with the continent, the Crown had to prioritise arming and training soldiers with guns. Hence, there is reason to believe the Crown was not entirely honest about its objectives, and it is reasonable to investigate alternative rationales.
A legal precedent might be observed which explains the Unlawful Games Act as a device to protect civil peace. Similar acts which banned games were devised in order to tackle crime and disruption, which were strongly associated with games of all kinds. Games played in taverns were often the recorded origin of quarrels, brawls and other anti-social behaviour which threatened civil peace.[8] For instance, an Act of Edward IV in 1477 forbade gambling houses and a plethora of new games. The outward objective of this was not to forbid the games themselves, but rather to prevent them from degenerating into such anti-social behaviour.[9] All kinds of games could constitute a public nuisance. In 1446 the Bishop of Exeter complained of “…ungodly-ruled people within the said cloister have exercised unlawful games, as the top, queke, penny-prick, and most at tennis, by the which all the walls of the said cloister have been defouled and the glass windows all to-burst.”[10] ‘Queke’ was likely a game akin to hopscotch, and penny-prick was merely a coin- tossing game.[11]  If even such trivial games as these were not harmless, perhaps it was justified to forbid so many. However, the greatest public nuisances had always been sports, which required countless prohibitions from local authorities as well as the Crown. Most chaotic of all was football, which in those times involved inordinate mobs, boundless play and violence between participants. An abundance of contemporary complaints illustrate the problems. In 1608, the court leet of Manchester imposed a ban, describing “glasse windowes broken yearlye and spoyled by a companie of lewd and disordered persons.”[12] With little success, football had been banned across England five times between 1349 and 1540. Considering these broad problems, and the many bans enacted to tackle them, there is certainly a precedent for the Unlawful Games Act to share that purpose, at least as a secondary objective; but it was not a primary goal. Previous acts which banned games to protect civil peace, such as Edward IV’s 1477 act, overtly describe this objective. Meanwhile, the Unlawful Games Act fails to mention this cause, and doesn’t even describe the games using any disparaging language, which would be expected. ‘Chaotic’ sports like football go unmentioned, implying that they were not a priority, (though they were incorporated as ‘any other Manner of Game prohibited by any Estatute heretofore made’).[13] Finally, Section 15 of the Unlawful Games Act is clearly contrary to the 1477 Act and the aim of crime prevention. This section allows for the purchase of ‘placards’, which were essentially licenses to operate a gambling house legally.[14] A special provision to protect gambling houses is unusual, considering that the 1477 legislation identified a singular issue in the rampant criminal activity arising from them.[15] Mary I would later abolish these licensed gambling houses with the express purpose of confronting ‘robberies and many other misdemeanours’, further attesting that the Unlawful Games Act had neglected a significant problem. For these reasons, tackling anti- social crime and protecting civil peace can be disqualified as a fundamental motive of the Unlawful Games Act.
One of the most conceivable alternative explanations for the Act is that it was inspired by popular moralism, which actively disparaged games throughout the medieval and early-modern periods. It was this growing puritanism, spurred on by the reformation, which would eventually motivate Cromwell’s infamous anti-recreational laws of the seventeenth century. However, despite the prominence of moralism in Tudor England, it hardly influenced the Crown. The prominent issue of gambling can be used to demonstrate this claim, as it can be proven in certain terms that the Unlawful Gaming Act was not devised to tackle gambling. While the Act forbids traditional gambling games, and though bets were also wagered regularly on games like tennis, it is significant that a distinction is not made between gambling and non-gambling games. One might argue that this could be an example of a linguistic turn, and that the difference was not necessarily important in this period, but the distinction of gambling was already well-established in theological writings.[16] Gambling is only specified in the Act in relation to the aforementioned licensing of gambling houses, which obviously fails to condemn gambling. Plainly, the Crown was disinterested in the morality of gambling. If they were, then surely the Unlawful Games Act wouldn’t make such specific provisions for the upper classes. It was atypical of English acts to involve gambling before the eighteenth century. Gambling was a major pastime of the Tudor kings, who commonly enjoyed gambling at card and dice games, as well as wagering on tennis and archery contests.[17] It was by no accident that Henry VIII inherited his father’s bad habit; he had been introduced to gambling at a young age. He had been playing cards and dice games since at least 7, and aged 11 the prince received a sum of 66s 8d, (approximately £1,500 in today’s money), specifically for ‘my lord of York to play at dice’.[18] While the Crown was not influenced by moralism, it still had a role in this legislation. In explaining why local magistrates enforced the Unlawful Games Act, McIntosh suggested that it was part of a moralist policy to control youths and servants.[19] The pervading moralist view of games as unwholesome and dishonest activities helped to justify the Act to the same people it controlled. As seen throughout history, moralism can be used as a tool of government to ensure social order.
A particular element of moralism served as an especially important instrument of control in medieval and early modern legislation. This was idleness; perceived as a shameful flaw, the idle man or woman failed to contribute and fulfil their expected societal role. Idleness was most relevant to English law wherein it represented the case against vagrancy: criminal unemployment and homelessness. Failure to meet labour expectations, especially willingly, was a breach of social boundaries. Idleness was used in this case as a device to control the ‘middling sort’ by admonishing those ‘vagrants’ who abandoned their societal role. Peasants and workers were confined to their place of work and residence by the 1351 Statute of Labourers, so that abandoning one’s work was not only a social wrongdoing, but a codified crime, binding peasants to their masters.[20] In 1563, during Elizabeth I’s reign, the Statute of Artificers further entrenched these confines, and enshrined the obligation of peasant class to work.[21] Laws of this kind are the visible surface of those which define the status of the working class, conditioning their ways of life and even what activities are appropriate for them.[22] If these laws shape the economic lives of the working class, then the Unlawful Games Act imposes upon recreational life. The games prohibited by the Unlawful Games Act were ‘idle and vaine pastymes’ perceived to offend God; and another Elizabethan statute identified card and dice games as tools of ‘rogues and vagabonds’.[23] [24] The Unlawful Games Act was not influenced by any of the moral criticisms of games themselves; rather, in light of the laws against vagrancy, it targeted the failure to work in accordance with social status.
The establishment was preoccupied with maintaining social boundaries, and shaping ideas of which activities and behaviours were appropriate for people of different classes. This involved the confinement of what the ‘middling sort’ were permitted to do, but only for the sake of expanding the social domain of the gentry and aristocracy. Maintaining this class separation was what distinguished certain activities as noble. Commoners, therefore, must be barred from the recreational activities which belonged to the upper class. Idleness was not in the same way a problem for the nobility, for whom many recreational activities represented a part of their societal role. Games and sports held important social functions as tools of hospitality and personal image, and they could be manipulated as demonstrations of wealth and magnificence. Indeed, accomplishment in some activities, such as dancing, could be essential social skills for men and women at court.[25] The key tool for distinguishing noble recreations from common games was inaccessibility. For instance, courtly dancing was kept distinct from the agrestic flavour of peasant dance by exclusivity of setting and social circles. Another example is jousting, preserved by its enormous expense and martial requirement; but the most prominent is hunting, already safeguarded by age-old property laws which severely punished poachers. These activities ostensibly belong to the ruling class because the rest of society were reliably excluded already, often simply by the intrinsic nature of the activity. Meanwhile, many games, even tennis: ‘the sport of kings’, were fairly accessible to common people, and therefore they required supplementary legislation in order to be reserved for the elite. This is the objective of the games ban in the Unlawful Games Act, evidenced by the design of specifically unobtrusive exemptions for the upper class. In addition to being exempted from games bans themselves, sections 22 and 23 awarded masters the right to authorise visitors and their servants to play games.[26] With this authority, a matter-of-course is protected; gentlemen can continue to use games as a tool of hospitality with their guests, and as a means to reward their servants. The Unlawful Games Act served as supplementary legislation to further encroach on the lifestyles of common people, in order to safeguard the nobility and privilege of recreations like tennis and gambling.
The Unlawful Games Act of 1541 is a most curious entry in early-modern English law, which conditions the recreational lives of the common people in spite of mysterious objectives. The outward explanation for the Act – to preserve archery – is inadequately convincing, considering the intrusive extent of the games prohibition. In light of the language of the statute, it is also unlikely that confronting games-related crime was foremost objective at the heart of the Act. If these were genuine concerns, then they failed even more certainly in either case. Rather than sharing similarities with previous acts which prohibited games, the Unlawful Games Act instead has more in common with acts like the Statute of Artificers, which imposed boundaries on the freedoms of the working class. The Unlawful Games Act is particularly unprecedented, going beyond controlling economic working lives by imposing which recreational activities are appropriate for people of the working class. This prohibition of games might be seen as an attempt by the establishment to reserve them as exclusive noble privileges, akin to other inaccessible recreations such as hunting. If this interpretation is to be accepted, then it suggests that the Crown approached social construction intelligently, working to proactively maintain the social divide and distinctive lifestyle differences between classes. Examining other inconspicuous statutes within this context of social conditioning might produce further interesting insights about the nature of agendas in early modern legislation.

References

‘Unlawful Games Act’, 33 Hen. VIII c. 9, (1541).
Coulton, G. G., Chaucer and His England, (Frankfurt, 2018). 12 Rich. II c. 6, (1388).
Gunn, Steven, ‘Archery Practice in Early Tudor England’, Past & Present, 209, (2010), pp.53-81. McIntosh, Marjorie Keniston, Controlling Misbehaviour in England, 1370-1600, (Cambridge, 1998)
Muchembled, Robert, A History of Violence: From the End of the Middle Ages to the Present, (Cambridge, 2012).
17 Edw. IV c. 3, (1477).
Shillingford, John, ed. Stuart A. Moore, The Shillingford Letters, (Ann Arbor, 2018).
Manchester Court Leet Rolls, (12th October 1608).
Robert, Pierre, ‘Les origines de la répresson des jeux en droit anglo-saxon: le contrôle de l’Homo ludens dans l’Angleterre du XIVe au XVIe siècle’, Droit & Société, 17-18, (1991).
Hutchinson, Robert, Young Henry, (London, 2011).
‘Statute of Labourers’, 22 Edw. III c. 8, (1351).
‘Statute of Artificers’, 5 Eliz. I c. 4, (1563).
McKay, Elaine, ‘‘For refreshment and preservinge health”: the definition and function of recreation in early modern England’, Historical Research, 81, 211, (2008), pp.52-74.
‘Vagabonds Act’, 39 Eliz. I c. 4, (1597).



[1] ‘Unlawful Games Act’, 33 Hen. VIII c. 9, (1541), preamble.
[2] G. G. Coulton, Chaucer and His England, (Frankfurt, 2018), p. 229.
[3] 12 Rich. II c. 6, (1388).
[4] ‘Unlawful Games Act’, 33 Hen. VIII c. 9, preamble.
[5] S. Gunn, ‘Archery Practice in Early Tudor England’, Past & Present, 209, (2010), p. 57.
[6] M. K. McIntosh, Controlling Misbehaviour in England, 1370-1600, (Cambridge, 1998), pp. 96-107.
[7] S. Gunn, ‘Archery Practice in Early Tudor England’, Past & Present, 209, (2010), p. 75.
[8] R. Muchembled, A History of Violence, (Cambridge, 2012), p. 419.
[9] 17 Edw. IV c. 3, (1477).
[10] J. Shillingford, ed. S. A. Moore, The Shillingford Letters, (Ann Arbour, 2018), p. 101.
[11] Ibid.
[12] Manchester Court Leet Rolls, (12th October 1608).
[13] ‘Unlawful Games Act’, 33 Hen. VIII c. 9, (1541), s. 11.
[14] ‘Unlawful Games Act’, 33 Hen. VIII c. 9, (1541), s. 15.
[15] 17 Edw. IV c. 3, (1477).
[16] P. Robert, ‘Les origines de la répresson des jeux en droit anglo-saxon: le contrôle de l’Homo ludens dans
l’Angleterre du XIVe au XVIe siècle’, Droit & Société, 17-18, (1991).
[17] R. Hutchinson, Young Henry, (London, 2011), p. 46.
[18] R. Hutchinson, Young Henry, (London, 2011), p. 47.
[19] M. K. McIntosh, Controlling Misbehaviour in England, 1370-1600, (Cambridge, 1998), pp. 96-107.
[20] ‘Statute of Labourers’, 22 Edw. III c. 8, (1351).
[21] ‘Statute of Artificers’, 5 Eliz. I c. 4, (1563).
[22] P. Robert, ‘Les origines de la répresson des jeux en droit anglo-saxon: le contrôle de l’Homo ludens dans
l’Angleterre du XIVe au XVIe siècle’, Droit & Société, 17-18, (1991).
[23] E. McKay, ‘“For refreshment and preservinge of health”: the definition and function of recreation in early modern England’, Historical Research, 81, 211, (2008), pp. 52-74.
[24] ‘Vagabonds Act’, 39 Eliz. I c. 4, (1597).
[25] E. McKay, ‘“For refreshment and preservinge of health”: the definition and function of recreation in early modern England’, Historical Research, 81, 211, (2008), pp. 52-74.
[26] ‘Unlawful Games Act’, 33 Hen. VIII c. 9, (1541), s. 23-23.

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