What legal test, if any, distinguished gentlemen from commoners in Tudor England?

Question

I read today that, as part of the dubious legal proceedings which Henry VIII used to get rid of Anne Boleyn, five men were tried and executed for having treasonous relations with the queen: Mark Smeaton, Henry Norris, William Brereton, Sir Francis Weston, and her brother George Boleyn, Viscount Rochford.

Of the five, only Smeaton ever confessed, and the usual explanation for this goes as follows:

1. The accusations were fabricated to suit the king's political and personal needs.
2. Smeaton was classed as a commoner, whereas each of the other defendants belonged to one of the higher social tiers of gentry, knightage or peerage.
3. It was illegal to torture a gentleman. It was likewise illegal to torture a knight or a peer. But it was perfectly legal to torture a commoner.
4. Therefore Smeaton was tortured, but no the others.
5. Therefore Smeaton confessed, but the others were able to resist the pressure to confess to trumped up charges.

The fact that only Smeaton was tortured, when it would have been extremely convenient for the king to have extracted confessions from the others, suggests to me that there must have been some clear distinction in law between commoners and the various grades of aristocracy. But what was that distinction in law?

With George Boleyn, Viscount Rochford, the distinction is obvious. He was a viscount. To this day, the peerage enjoy substantive legal privileges; in Tudor times, those privileges were greater still, e.g. peers could only be tried by the House of Lords. And the matter of who is and who is not a peer was, and indeed is, highly circumscribed and clearly defined.

The situation is less clear in the case of Sir Francis Weston. He was a knight, but, to the best of my knowledge, the knightage have never enjoyed any significant privileges under English law. Show me the law which stated that a musician could be tortured, but not a knight, because I cannot find it. But Weston's knighthood is nevertheless a clear mark that he belonged to the upper crust of Tudor society.

The situation is even murkier with Norris and Brereton. Both were younger sons of provincial landowners, and thus were not in line to inherit any land, as far as I know. However, both were awarded minor court titles, and significant grants of lands as reward for service at court. Were they perhaps considered gentlemen on the basis of those court titles, or on the basis of their status as landowners? Or was there some other factor?

Answer 1

I only have a conjecture, it is derived from one case. But I suppose it is typical.

George Green was a miller in Nottingham in the first half of 19th century. He owned a mill and worked in it. He was not a gentleman and could not join the Gentlemen's club. But he wanted to join, because in his spare time he did mathematics, and the Gentlemen club had the only library in the city where there were mathematical books.

So he rented his mill out. Now he made his living from the rent, that is did not work himself, and qualified as a gentleman, and joined the club. (This was the famous Green, of the Green function and Green's formula).

So I suppose that if your main income is from a wage or a small business, and you do physical labor, you are not a gentleman. If you make your living from a rent or an interest on your capital, you qualify for a gentleman. Physical labor was probably important, since doctors, lawyers and other professionals were considered gentlemen, even if they made their living from wages. And certainly, criteria could change with time, I am speaking of a very different epoch.