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Le pénal dans tous ses États

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René Lévy
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Xavier Rousseaux

- I - Acculturation juridique et intégration nationale

The Law, Law Enforcement, State Formation and National Integration in Late Medieval and Early Modern England

James A. Sharpe

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  • 1 For a classic work which provoked a lively debate around many of the relevant issues for the perio (...)

1Considering the theme of 'national integration' must encourage us to pause slightly and ponder for a moment or two on some of the related issues. I would support the idea that we should focus on a phenomenon which is obviously related to national integration, that is, State formation. But of central importance here is the problem of how we propose to define the State. Obviously (and justifiably) most historians and other social scientists use the term in a fairly unproblematical way, employing it as a convenient shorthand which covers a whole range of related phenomena. I think, however, that I would like to begin by clarifying some of my own thoughts on the subject. The point which I would stress is a fundamental one which, although hardly original, is worth restating: many historians, particularly those dealing with that part of English history with which I am most familiar (that is, the sixteenth and seventeenth centuries) have tended, when dealing with what might be called 'the State' to concentrate on central government: on its personnel, its structure, the establishment of its bureaucratic routines1. This is understandable: obviously, what happened at the centre was important. Yet it is not whole story, and this conclusion poses questions about what we mean by the State (or, to take a term more favoured by British historians, government) in the periods before the nineteenth-century. Most Englishmen of the sixteenth and seventeenth centuries would have used a term other than 'the State' (although the word was beginning to be used in something like its modern sense) to describe the national political unit in which they lived: 'commonwealth' would probably have been the word most likely to have been employed. And this term 'commonwealth' implied something more than 'the State' narrowly defined as its central organs and personnel. It implied something like a fusion of central authority and what we might term 'civil society'. Which is to suggest that in considering 'the State' in late medieval and early modem England (and, I suspect, in most other parts of Europe) it is difficult to separate 'the State' from (to introduce another modem term) 'society', and it is important to remember that the operation of the State, however defined, depended heavily on the co-operation and acquiescence of large numbers of local people. Thus a study of how State law operated immediately brings us into contact with wider questions about society.

2Having touched on the definition of the State, we encounter a second issue: what contemporaries considered its function to be. If states were formed, what did those forming them think they were doing, and what did those at the receiving end of the process of State formation make of it all or expect from this process? Obviously a number of answers could be given to these questions: the ambitions of monarchs, taken as individuals or as a collectivity, the fact that there have always been natural bureaucrats or administrators, the need for better equipped and more competent armies and more effective taxation systems to support them, and more recently, the notion that the State should be the provider of certain basic services which will make the lives of its subject better (health care, old age pensions, unemployment benefit, and so on). Perhaps one the most persistent themes in justifications for the existence of the State, however, has been its role in providing, or a least attempting to guarantee, law and order. The point awaits investigation, but it seems fairly certain that a few afternoons spent reading contemporary works of political theory would reveal that a good number of Europeans in the late medieval and early modem periods regarded the maintenance of law and order, and the passing and execution of good laws, as among the prime functions of government. With Thomas Hobbes, for example, we reach an extreme version of this view: the sovereign power exists to restrain humankind from constant indulgence in that 'war of all against all' which was, to Hobbes, so crucial an aspect of the State of nature. From the perspective of the centre, then, the law had an undeniably integrative function: it helped to construct the good citizen.

3Concern over the law was also, I suspect, fairly important to those at the centre of State systems. Ministers would regard the maintenance of order as a sign of success, and with the emergence of a legal profession and the entry of lawyers into the bureaucracies of Europe another dimension was added. Yet I would suggest another avenue of approach which might be worth considering: ideas on kingship. Monarchs in the period with which we are concerned, as the history of any part of Europe demonstrates, varied from saints to psychopaths, and the attitudes of individual monarchs to law enforcement included many personal variations. Yet when they (or their advisers and propagandists) set about theorizing their position, or began to construct an image of royalty, one of the key elements they stressed was the monarch’s role as a lawgiver: in an era where classical culture was of central importance, Justinian provided an important role-model. The monarch was a font of justice and of mercy, and the idea that one of the major attributes of kingship was indeed that making and upholding of good laws to which political theorists referred, was a notion of central importance in the self-image of kings and in the propaganda which was being peddled around them. The effects of all this on a wider audience remains problematic: that the business of propaganda was though to be worth the efforts is, however, instructive.

4To proceed to more specific matters, let us now turn to the particular circumstances of a kingdom occupying the major part of an island on Europe’s Western margin: that is, England. One of the major areas of interest in studying English history in the long term lies in considering, in a comparative approach with the rest of Europe, how the processes of State formation, and not least the processes of legal acculturation, worked there over a long term. Consider the situation in 1603, when the ruler of the northern part of that island, James VI of Scotland, assumed rule in England on the death of Elizabeth I. There was very little by way of a standing army. There was a relatively underdeveloped central bureaucracy. There was very little by ways of local office holding on what was to become the French model, local government being largely in the hands of unpaid amateurs. Internal political divisions (compared with, say, France, the United Provinces, or the Iberian territories ruled by Philip III) were almost non-existent, as were internal customs barriers. Superficially, at least, the kingdom of England looked rather odd, and, in many respects, rather undeveloped, in comparison with other western European states. Yet, broadly speaking, it functioned.

5One of the main reasons why it functioned and one of the peculiarities of English government, was its law and legal system. England was not centralized in bureaucratic terms, and the physical means of coercion of central government, in terms of armed forces, were slight. Yet the English common law, and the related notion of the king’s peace, provided an important, and in a sense 'centralizing' and 'integrative', ideological cement. There were, of course, other types of law in existence in England: the ecclesiastical law which survived the Reformation more or less intact; the Roman Law which was operated in a few tribunals; the Equity jurisdiction of the Court of Chancery; the local customary law which was in operation, usually in tandem with the common law, in manorial or borough jurisdictions. Yet these other systems were generally regarded as inferior to the common law, certainly for rhetorical purposes. The English common law and its officers were not, generally speaking, confronted by those local legal privileges or those seigneurial jurisdictions which were so powerful elsewhere. The exact origins of all this are disputable, but there is little doubt of their antiquity. Students of Anglo-Saxon England are fond of stressing the happy State of affairs before the Norman conquest, when England did seem to have an unusually well founded monarchy in which the maintenance of law and order was an important achievement. More conventionally, however, historians tend to focus on the reign of Henry II, by all accounts an unusually tough and competent monarch, whose achievement include a major overhaul of the English legal system in the later twelfth century. At this point, the financial rewards of justice (the forfeiture of the goods of convicted felons, the collection of fines and so on) probably loomed as large as did the rhetoric of good kingship. But it is important to grasp that the peculiarities of the English legal system dated from a very early period.

  • 2 The history of litigation in early modern England, although the importance of the subject has ofte (...)

6As the monarchy became more settled, especially over the fourteenth and fifteenth centuries, a system of central courts became established at Westminster, just down the River Thames from England’s capital, London. By the late fifteenth century these courts, the three common law courts, Common Pleas, King’s Bench and the Exchequer of Pleas, and Chancery with its Equity jurisdiction, were dealing with a large amount of business, most of it civil litigation. The volume of this business was to increase steadily up to the outbreak of the civil wars in 16422. Of these courts the most important, for our immediate purposes, was the King’s Bench. This dealt with a considerable amount of civil business, but also had a side which dealt with criminal cases. The exact origins of the King’s Bench are obscure, but by the sixteenth century it had long completed its transition away from being the personal court of the monarch to being the most important of the common law courts, having considerable supervisory powers over other criminal courts. The records of King’s Bench have not been fully explored, yet it is evident that, despite its theoretically wide powers, the criminal business of the court was, by 1600 or so, although voluminous, fairly restricted in its nature. The most important body of cases seem to have been misdemeanours involving violence - assault, riot, and forcible disseisin [that is, the denial to its owner of access to or use over landed property by force] - the participants often being persons of a fairly high status, and the cases being removed to Westminster from a local assizes or quarter sessions on a writ of certiorari.

7But with the King’s Bench we return to fundamental problem. Having a system of courts near to the royal court and the nation’s capital city was obviously important. The firming up of the machinery of these central courts was obviously an important step in State formation, while the fact that increasing numbers of people were willing to litigate there points to the attractiveness of the criminal law for control of conflicts. The mere presence of these courts, however, did not guarantee that the royal will would be done in the localities: what happened at the centre may not have reflected what happened at the peripheries. The major step in solving this problem was initiated in the reign of Henry II, with the institution of the assizes in the 1170s. The origins of these courts lay in a fairly lengthy process during which medieval monarchs and their advisers tried to construct an administrative framework capable of ensuring royal control over local courts, the full collection of the profits of justice, and the meeting of what was already a popular demand for speedy and efficient justice. As part of these processes a system of gaol delivery was developed. Under this system (virtually in place but the end of the thirteenth century) professional and centrally directed judges would be sent out from Westminster twice a year to try the criminal suspects held in county gaols. The assize system proved to be a successful and enduring method of ensuring central government supervision of local criminal justice.

  • 3 The standard introductions to the assizes in the early modem period remains J.S. COCKBURN, A Histo (...)

8By about 1600 the assizes enjoyed three main function3. They dealt with civil cases, normally tried on a writ of nisi prius taken out of the common law courts at Westminster. They also heard criminal cases, the accused being tried on indictment: by 1600 most felonies (broadly, offences which might lead to the death penalty upon conviction) were heard before the assizes, the most common being grand larceny, burglary, homicide, rape, arson and witchcraft. Moreover, in more general terms, the assizes were a link between central and local government. England was divided into six assize 'circuits', or groups of counties, and two judges were assigned to each. They had a supervisory role to play over local government, and also acted as spokesmen for central government concerns as they met county elites at the assizes: indeed judges were usually briefed on the central government concerns they were to emphasize before leaving Westminster for their circuits. Equally, the assize grand jury, composed normally of members of the middling gentry, might act as a mouthpiece for county opinion or county grievances. The function of the assizes as a means of transmitting information was made easier by the fact that, certainly by the seventeenth century, the assizes had become an important part in the county’s calendar. At the border of each county, the judges would be met by the sheriff and his retinue, they would be lodged and dined in on of the main county towns, the actual sitting of the courts would be prefaced by a sermon, and by the eighteenth century assize week would be the time for balls and other entertainments.

  • 4 E. COKE, Fourth Part of the Institutions of the Laws of England, London, 1669. For the history of (...)

9The twice-yearly arrival of the assize judges was clearly an important event, and the assize system’s success was an important element in the process of English State formation before 1700. The supervisory and didactic roles of the assizes are also evidence of the integrative nature of the centrally directed legal criminal justice system. Obviously, however, some system of more permanent agents was needed to at least offer some hope that law and order would be maintained at those times when the judges were not present. The main institutional answer to this problem lay in the existence of justice of the peace. The office had its inception in the fourteenth century, with the conservatores pacis [conservers or keepers of the peace], local officers with legal powers who were just one of a number of administrative experiments which were being tried at that time. These officials became associated with another of the administrative innovations of the period, mid-century labour legislation passed in the aftermath of the Black Death (the lower orders were profiting from the shortage of labour that followed the epidemic by asking for higher wages). This legislation depended for its enforcement on sessions to be held four times a year, in which lay the origin of the quarter sessions which were so central to county government by 1600. By that date practically two centuries of parliamentary legislation had added steadily to the duties of the justices (formally conservators) of the peace, and the acceleration of this process over the sixteenth century was itself indicative of the quickening processes of State formation. One legal expert, the Kentish lawyer and justice of the peace William Lambarde, commented on the workload which the conscientious justice might find himself committed to. Another legal observer, Sir Edward Coke, thought that the justices and the quarter sessions constituted 'such a form of subordinate government for the tranquillity and quiet of the realms, as no part of the Christian world would have the like, if the same be duly executed'4.

10It is with the justices of the peace, however, that we enter the interface between three separate historical developments: State formation, which has been our major concern so far, 'acculturation juridique' (a term whose English equivalent I find little elusive, but which I shall render as 'judicial acculturation'), and national integration. For one of the great peculiarities of the English State, as I have suggested, was the dependence upon unpaid amateurs. And with justices of the peace we find local gentlemen (roughly the equivalent of what French historians would term the petite noblesse, although at least some justices came from fairly high up the scale in the nobility) being willing to serve the State as unpaid local administrators and law enforcers. My own expertise is very much in the sixteenth and seventeenth centuries, and I am uncertain about how far the trends with which I am familiar were operating in the fifteenth century. Yet with they restoration of effective central rule and good governance in the countryside which came after the accession through military victory of Henry VII in 1485, English local elites fell in fairly rapidly behind the Tudor dynasty. Despite some difficult moments, notably in the period c. 1540-1560, they were to continue to support central authority until the Civil War began in 1642. Thus the implementation of the criminal law depended not just on professional judges, but also on local elites. Why was their co-operation forthcoming?

  • 5 For a seminal work which played an important part in establishing the existence of major cultural (...)

11The reasons were varied. I would like to single out four. The first is that by 1485 (like their French equivalents in 1598) the English gentry had experienced of period of political instability and spasmodic civil warfare which made a strong central authority and the guarantee of order it seemed to provide attractive to all but the most avid adherents of the Yorkists. The second is that of changing aristocratic lifestyles. Our major concern is that legal acculturation which allows criminal disputes to be adjudicated via the courts but is seems to me that this needs to be considered in the context of other forms of acculturation, or, if we are unhappy with that term, at least with broader cultural changes. And, without doubt, the culture of the nobility, even that provincial petty nobility which we know in England as the gentry, was changing5. A greater desire for education, the steadily increased entry of the sons of the gentry unto the universities over the period c. 1550-1640, the spreading ideal of the renaissance gentleman were all symptoms of a broader cultural change. Allied to this set of processes was a redefinition of what we would call State service. The medieval idea of serving one’s feudal lord as a knight was now being supplemented by other notions of service, including a more overt willingness to serve in administrative capacities. And fourthly the office of justice of the peace is a good demonstration of how the needs of the State coincided with these new aspirations. For, in county society, appointment to the commission of the peace was a mark of arrival, being taken off it a sign of disgrace. Thus the aspirant gentleman making his way up the local social pecking order wanted to be a justice of the peace, just as central authority wanted justices to operate in the localities.

  • 6 How religious considerations might mix with other components of the mentality of a provincial just (...)

12How far this connects with any 'acculturation juridique' is, of course, problematic. The gentleman’s objectives in wanting office (social prestige, and also maybe holding an office where favours could be done to friends and bad turns to enemies) may not have been exactly what central authority wanted from justices. Yet despite the odd case of corruption, most justices most of the time seem to have operated fairly effectively. Some of them were very efficient, especially those (if we may turn to another aspect of acculturation) who in the aftermath of the Reformation, were attracted by what might be described as the puritan emphasis on the role of the godly magistrate in the creation and maintenance of the godly commonwealth6. But the implications of all this for State formation and national integration were very clear. Local gentry were finding the notion of serving as local law enforcement agents increasingly attractives, and, by the later sixteenth century, many of them were developing a working knowledge of the law (at least a leavening of them would have had formal legal training) and were conceiving of State services in terms of their legal responsibilities. And, from an early date, this social level was retreating from using violence as a means of settling its disputes.

  • 7 The history of legislation has been largely ignored by historians of the English parliament, who h (...)

13To remain on this social level, it is also worth pondering on who was actually making the law. Another major force for national integration was parliament, a national representative institution whose lower house (the Commons) was becoming increasingly filled with upper gentry, most of whom would be justices of the peace in their home counties. These sat alongside members of urban elites, most of whom had experience of the responsibilities of urban government, and of acting as justices, and judges in civil actions, in their own areas. It was these people, in co-operation with the top stratum of landowners and the bishops in the House of Lords, who were responsible for passing laws7. So the process of law-making, like that of law-enforcement, depended on the actions of what was an increasingly integrated national elite. The degree of integration should not be overestimated perhaps. Members of parliament were able quite happily to think of themselves as representatives of the nation at one point in a day’s business, and as representatives of their home area, or of some sectional interest, at another. Yet, slowly and incoherently, the gentry and burgesses sitting in the House of Commons came to think of themselves as speaking, on occasions at least, for the nation. So, any discussion of the centralisation of the criminal law, juridical acculturation and national integration in England has to take into account the fact that the body which actually made that law was one which stood for national integration.

  • 8 For the development of the English legal profession, see E.W. IVES, The Common Lawyers of pre-Refo (...)

14Yet there was another group in the House of Commons which we should consider: lawyers. As everywhere in Europe, the late medieval and early modem periods witnessed the emergence of a legal profession. In England, where offices in the government which might be filled by persons with a legal training were comparatively few, this process was less marked than in some other European states. Yet, again by that great watershed of 1642, it was possible to discern the origins of a legal profession8. Then as now, the English legal profession was divided into two elements. By far the most self-conscious of these, and perhaps the section most worthy of the adjective 'professional', were the barristers, welltrained lawyers who actually pleaded in the courts, and whose upper stratum were very wealthy and well connected. These were normally sons of relatively rich families whose fathers were able to send them through the expensive process of legal training at the Inns of Court. Less well off, and frequently trained through apprenticeship rather than formal legal education, were what these days would be called solicitors, attorneys in contemporary parlance. The emergence of legal profession had wide ramifications, yet it can be seen as integrative in certain respects. If nothing else, it opened up employment opportunities to sons of the gentry, while attendance at an Inn of Court, like attendance at a university, meant that sons of the elite got to know their fellows from all over the country and were immersed with them in a shared educational and cultural experience.

15But the emergence of the legal profession leads to another point: the rise of this group was in large measure explained by a growing need for their services. However much lawyers were made a target of criticism and social satire, it remains clear (as rising levels of litigation suggest) that increasing numbers of people needed their services. Lurking behind this was the much more general issue of how people in the late middle ages and early modem periods seemed willing to use the law to settle disputes. Again, we need to be a little cautious of how we use the evidence: the use of litigation as a means of furthering disputes or of harassing an enemy was familiar to contemporaries and ought not to be lost sight of by the modem historian. Yet the fact remains that it was through the use of the law, and not through the pursuit of the feud or other forms of violence, that action was being taken. And at least some of the inhabitants of England in this period had access to a surprising number of legal institutions. The citizen of York, admittedly a fairly important administrative centre, around 1600 would find him or her self living in a town were many courts operated. There were a number of city courts, with the mayor and corporation presiding over tribunals with both civil and criminal jurisdictions. The Archbishop of York administered the northern half of the Church of England from the city, and his courts enjoyed considerable business. The northern circuit of the assizes met in the city twice a year, delivering the gaol in York castle of the criminals of England’s biggest county. And, down to the Civil War, the Council of the North sat in the city, its role underpinning the rule of northern England including a judicial function. This unelaborated list of the courts in existence in one provincial centre reminds us of the depth of legal culture in the early modem period.

  • 9 Quoted in P. WILLIAMS, The Tudor Regime, Oxford, 1979, p. 219. For a recent, and very full, study (...)

16Some courts were extremely local, and their capacity acting as agents of national integration might not at first seem obvious. Many boroughs, most of them towns or even smaller settlements of less than the size of York, had their own courts where criminals were tried and civil cases heard. Some of these latter courts, especially those dealing with litigation over debt, were very busy. And, in some places at least, an active manorial court survived. These have been much studied in the medieval period, less so in the years after 1500, but they do, in such places as they functioned, point to a very local legal system. The business there was normally very small scale, local government matters interspersed with the odd case of assault or scolding and the odd case of unneighbourly conduct: strong seigneurial jurisdictions, even in so far as they had ever existed in England, were clearly a thing of the past. But even the manor, along with its local legal institutions, could be presented as a microcosm of the national macrocosm: 'is not every manor', asked the Elizabethan cartographer John Norden, 'a little commonwealth, whereof the tenants are members, the Lord the body, and the law the head?'9.

17Norden’s formulation is felicitous for our purposes. The law as the head of the 'little commonwealth' that was the manor is a pleasing image. Unfortunately, even as he wrote, the manor was becoming, in many regions, less important as a unit of government. It was being, nationally speaking, replaced by the parish as the major unit of local secular government. One of the major achievements of the Tudor regime was to utilise the parish as an instrument of secular administration, perhaps the most important force here being the need to administer and enforce the nationally imposed poor law locally. But the parish too, by about 1600, was well along the road to forming a 'little commonwealth' of which Norden wrote. And, in examining this process, we find the clear integration of persons other than those drawn from the county’s gentry elite or the borough’s aldermen being integrated into what was, in the last resort, a national legal and administrative system. When examining this point it is important to recognise a fundamental truism: it is difficult to envisage, let alone find, a society (even a small society like an early modem village) which sees chaos as a desirable norm.

  • 10 K. WRIGHTSON and D. LEVINE, Poverty and Piety in an English Village: Terling, 1525-1700, 2nd ed., (...)

18The relevant processes are not altogether clear, are still in some measure contentious, affected different regions of England at different chronological points, and have to be approached through meticulous local research. They have been most clearly demarcated in a study of what may have been a settlement unusually precocious in its economic and social development, Terling in Essex in south-eastern England. Their mam lines lay in the response of English local society to the steady population rise which set in from the early sixteenth century, and which led to the doubling of England’s population over the period c. 1530-1630. In this south-eastern village, the result was a more marked stratification between a small group of rich yeoman farmers, small gentry and the more prosperous craftsmen on the one hand and a large body of landless or near landless labourers and poor craftsmen and artisans on the other. Research into this village revealed an increased tendency for the richer villagers, who normally held such local offices as constable, churchwarden, or overseer of the poor, to use the court system (assizes, quarter sessions, and ecclesiastical courts in Terling, although elsewhere the manorial court might also serve this purpose) to police the behaviour of what they increasingly regarded as their disorderly poorer neighbours10. So the village elites of rich farmers were, via the holding of local law-enforcement and administrative office, integrated into the State in much the same way as were their social superiors who became justices of the peace.

  • 11 For a typical, and relevant, example of these propaganda works see J. CHEKE, The Hurt of Sedicion (...)

19Yet, as with their social superiors, this development was part of wider cultural changes. Indeed, work by medieval historians has demonstrated that similar processes had taken place in manorial courts in earlier periods. Manorial jurors were normally drawn from the upper ranks of the peasantry, and, as at least some studies have shown, were as willing to police their delinquent neighbours as was the parish elite of Terling a century or two later. That this was happening on such an intensely local scale in the middle ages makes it hard to talk about legal acculturation and national integration. Yet, arguably, what was new in the sixteenth and seventeenth centuries was a number of phenomena which were nationally integrative. The State was more intrusive. Village elites were also likely to be literate, and hence in many cases an increased educational and cultural stratification was developing to match the economic one. In some villages (like Terling) the village elite was picking up ideas on godliness from the local clergyman, and hence cultural differentiation within the village was being yet further reinforced. And, perhaps most importantly, as agricultural prices rose and hence profits increased, yeoman farmers felt that they had as much to lose from lawlessness and disorder as did the county gentry. In 1549 there occurred in England the country’s last really serious old-style peasant revolt. In the aftermath of that revolt government propagandists sought to remind the natural leaders of peasant society, that stratum of rich peasants who had played a key role in 1549 (as they had in 1381, and as their equivalents had in Germany in 1524-1525) that if they disobeyed those placed above them in the social hierarchy, how could they expect their own social inferiors, their servants and families, to obey them11. Any discussion of the developing role of the criminal law in the period up to about 1700 has to take into account the broad social base of those involved in administering the law, and the broader social base of those who benefited from the maintenance of law and order. Yet it remains clear the law was one of the major social phenomena which were, by 1600, reminding the English that they lived in a political unit bigger than their county or local community.

  • 12 For a classic Marxist analysis of the operation of the criminal law, in this case concentrating on (...)

20This broad social base of those involved in administering the law creates problems for adherents of the basic Marxist notion of the law in non-socialist societies as a form of class oppression, or at least an expression of class relationships12. In many ways it was, not least because it was administered and enforced by men of property, even if a times that property amounted to nothing more than a fair sized farm. Yet the enforcement of law and order in England depended ultimately upon the willingness of those unpaid amateurs who were parish constables to enforce an increasingly heavy burden of administration, or on persons who were offended against to report thieves or other offenders. And, connected with this, is the undeniable fact that the law offered people even fairly well down the social scale a means of gaining redress or of settling disputes. The law was essentially something which people used, and their willingness to do so suggests that it was something which they found useful. Establishing the exact connections may well prove difficult, but it would also seem likely that this contributed to something like Norbert Elias’s 'Civilising Process'. However suspicious we might be about the motives behind litigation, it was clearly a less disruptive phenomenon than overt violence. Something like judicial acculturation, then does seem to have been present in England in the years before 1700. How far it aided national integration remains problematic.

  • 13 On this topic see J.A. SHARPE, Last Dying Speeches: Religion, Ideology and Public Execution in Sev (...)

21On certain levels, the integrative role of the law, of legal institutions, and of law enforcement are evident, but always somewhat ambivalent. The gentleman sending his son to study the law at an Inn of Court was committing him to an integrative educational experience which might lead to a career in a nationally-recruited profession, but it was also a way of ensuring the boy’s future wealth and thus might also be regarded as a sound investment of family resources. The litigant suing for debt in a local borough court might be aware that he was using the national common law to achieve his immediate aims, yet it was these aims which were uppermost. And the yeoman farmer temporarily serving as parish constable would be aware of keeping the king’s peace, and might even use appropriate rhetoric along those lines as he put a drunken vagrant in the stocks, but he would also be motivated by a set of more immediate concerns. Yet something of the wider issues, of the notion of upholding the king’s peace, or of being involved in the common law (that is, the law common to all of the English monarch’s subjects, and hence a shared, and possibly integrative entity) must have entered into the consciousness. The law impinged on civil society in an ever increasing number of ways. We have noted the way in which county justices and parish officers found the demands of the State encroaching upon them. They and others might have found themselves confronted by another legal phenomenon which developed in complexity over the Tudor and Stuart periods, the public execution13. Here we encounter a legal phenomenon whose function was clearly didactic and acculturative, and whose purpose, by demonstrating that crime didn’t pay and by encouraging good citizenship, was clearly integrative.

  • 14 For a stimulating discussion of these themes, see E.P. THOMPSON, Whigs and Hunters: the Origins of (...)

22But the law in England acted integratively in yet another way. I am not certain of how far parallel situations obtained in other countries, but it does seem that by the eighteenth-century the law had attained a peculiar status in English political discourse. The constitutional struggles of the seventeenth-century all, on one level or another, resolved themselves into legal issues, and hence it is hardly surprising that the English common law should have been enshrined in the constitutional settlement which followed the 'Glorious Revolution' of 1688-1689. In the century which followed the Revolution, the resultant status quo was defended by the rhetoric of the 'Free Bom Englishman'. An important part of that rhetoric was the celebration of the supposed legal rights of Englishmen. English propagandists looking across the Channel contrasted the happy position of the English with that of the French: in France, there was black bread rather than white, soupe maigre rather than roast beef and plum pudding, and arbitrary government rather than civil liberties guaranteed by law14. This was a xenophobic and overdrawn picture, of course, yet many believed it. And among these believers were many of those socially disadvantaged against whom a law based increasingly on the defence of property may have been felt to operate. Thus this part at least of judicial acculturation was very effective: it operated as the type of ruling class myth which creates a Gramscian style of hegemony. Englishmen (and perhaps even women) were integrated by it, along with the belief most of them shared in Protestantism as established by Queen Elizabeth of blessed memory, and by the logic of an ever developing capitalist economy.

23In this essay I have ranged widely, and touched on a number of matters (from the taste for litigation to the impact of public execution) which deserve fullscale treatment in their own right. I hope to have offered an overview of how the development of a culture in which the law was important, and perhaps even the development of a 'judicial acculturation' which may have aided national integration. My general point is that the law was a complex phenomenon, but that involvement in it did encourage Englishmen (and I use the gender deliberately) to think of England as a unit. I should like to conclude by reiterating two points. The first if that the cultural influence of the law was only one factor among many which, by 1700 or even earlier, were working towards national integration in England: the most obvious among the others were the shared religious identity offered by the Church of England, a market economy, a largely shared language, the absence of internal political or customs divisions. The second is that we should not regard the connections between judicial acculturation and national integration as purely something imposed from above. Early modem states (like most governmental forms) worked because most of the governed wanted them to, or were at least rarely moved to be impossibly obstructive. If the English legal system operated successfully (which, generally speaking, it did), it was because a large number of people felt that it had something to offer them, either in providing them with a means of settling disputes or by helping them maintain their stake in the status quo. It is this awareness of the impetus 'from below' which makes me anxious that we should not take an over simplified view of 'acculturation'.

24I am also aware that in this essay there is something of a tension created by my tendency to range between the themes of national integration and State formation. Again, I feel that this tendency is justified. As I attempted to make clear at the beginning of the essay, one of the major problems which has inhibited historians of England (and, by extension, Britain) in their attempts to study 'the State' or 'government' has been a concentration on the organs of central government, and an incapacity to confront the problem of the impact of the State (or central authority) on local society. English historical studies (I cannot speak for other nations, although I suspect that the problem may well be a shared one) are hampered by 'separate historiographies' in which specialists in one area rarely recognize the importance of speaking to each other. I am labelled as a 'historian of crime', and the fact that this subject may have relevance for the history of the State or of government is one which so far has received little recognition. I have, therefore, welcomed the opportunity to explore the relationship between State-formation and national integration through what was, I would argue, one of the most important links between the two, the law. I realise that this has produced a somewhat intellectually centrifugal essay, but I hope that I have at least suggested some of the lines for future thought and future development.

Notes

1 For a classic work which provoked a lively debate around many of the relevant issues for the period it covered, see G.R. ELTON, The Tudor Revolution in Government: Administrative Changes in the Reign of Henry VIII, Cambridge, 1953. It is noteworthy that the term 'the State' appears neither in the title nor the subtitle. For a more recent work on a later period, see J. BREWER, The Sinews of Power: War, Money and the English State, 1688-1793, London, 1989.

2 The history of litigation in early modern England, although the importance of the subject has often been alluded to, has yet to be written. For an important initial discussion, based on the central courts at Westminster, see C.W. BROOKS, Litigants and Attorneys in King’s bench and Common Pleas 1560-1640, in J.H. BAKER (ed.), Legal Records and the Historian: Papers presented to the Cambridge Legal History Conference 7-10 July 1975, and in Lincoln’s Inn Old Hall on 3 July 1974, London, 1978. For some suggestions of the local dimensions of the topic, see: C. MULDREW, Credit and the Courts: Debt Litigation in a Seventeenth-Century Urban Community, Economic History Review, second series, 1993, 46, p. 23-38; and W.A. CHAMPION, Litigation in the Boroughs: the Shrewsbury Curia Parva, 1480-1730, Journal of Legal History, 1994, 15, p. 201-22.

3 The standard introductions to the assizes in the early modem period remains J.S. COCKBURN, A History of English Assizes, 1558-1714, Cambridge, 1972. Professor Cockburn has edited A Calendar of Assize Records, 11 volumes, London, H.M.S.O., 1974 onwards, of which vol. 11, 'Introduction', stands as a remarkable guide to the workings of the assizes in the Elizabethan and Jacobean periods.

4 E. COKE, Fourth Part of the Institutions of the Laws of England, London, 1669. For the history of the justices of the peace, see: B.H. PUTNAM, The Transformation of the Keepers of the Peace into the Justices of the Peace, Transactions of the Royal Historical Society, fourth series, 1929, 12, p. 19-48; J.R. LANDER, English Justices of the Peace, 1461-1509, London, 1989; J.H. GLEASON, The Justices of the Peace in England, 1558 to 1640, Oxford, 1969; N. LANDAU, The Justices of the Peace, 1679-1760, Berkeley, etc., 1984; and, for an overview of the office’s history, E. MOIR, The Justice of the Peace, Hardmondsworth, 1969. Much of the most valuable research on the justices of the peace is, however, to be found in studies of county government or of county gentry. See, for an excellent early example of this genre, T.G. BARNES, Somerset 1625-1640: a County's Government during the Personal Rule, London, 1961, chapter 3, 'Magistracy'.

5 For a seminal work which played an important part in establishing the existence of major cultural changes among the English aristocracy, see L. STONE, The Crisis of the Aristocracy 1558-1641, Oxford, 1965. A. FLETCHER, Honour, Reputation and Local Officeholding in Elizabethan and Stuart England, in A. FLETCHER and J. STEVENSON (eds.), Order and Disorder in Early Modern England, Cambridge, 1985.

6 How religious considerations might mix with other components of the mentality of a provincial justice of the peace is demonstrated in R. CUST and P.G. LAKE, Sir Richard Grosvenor and the Rhetoric of Magistracy, Bulletin of the Institute of Historical Research, 1981, 54, p. 40-53.

7 The history of legislation has been largely ignored by historians of the English parliament, who have tented to concentrate on that institution as a forum for constitutional conflict. For an important recent corrective to this view, see G.R. ELTON, The Parliament of England, 1559-1581, Cambridge, 1986.

8 For the development of the English legal profession, see E.W. IVES, The Common Lawyers of pre-Reformation England, Cambridge, 1983; W. R. PREST, The Rise of the Barristers a Social History of the English Bar, 1590-1640, Oxford, 1986; C.W. BROOKS, Pettyfoggers and Vipers of the Commonwealth: the 'Lower Branch' of the Legal Profession in Early Modern England, Cambridge, 1986; D. LEMMINGS, Gentlemen and Barristers: the Inns of Court and the English Bar, 1680-1730, Oxford, 1990. W.J. BOUWSMA, Lawyers and Early Modem Culture, American Historical Review, 1973, 78, p. 303-27 is an excellent short introduction to the significance of the legal profession in Europe in this period.

9 Quoted in P. WILLIAMS, The Tudor Regime, Oxford, 1979, p. 219. For a recent, and very full, study based on post 1550 manorial court records, see M. KENISTON McINSTOSH, A Community Transformed: the Manor and Liberty of Havering, 1500-1620, Cambridge, 1991. It is a matter of regret that professor W.J. King’s potentially important researches into the manor of Prescott in Lancashire have not yet reached completion, but for some early comments on the significance of manorial records see his: Leet Jurors and the Search for Law and Order in seventeeth-century England: Galling Persecution or Reasonable Justice?, Social History: Histoire sociale, 1980, 15, p. 315-323.

10 K. WRIGHTSON and D. LEVINE, Poverty and Piety in an English Village: Terling, 1525-1700, 2nd ed., Oxford, 1995. Insights into the pressures operating on parish constables and other minor local government officers are to be found in K. WRIGHTSON, 'Two Concepts of Order: Justices, Constables, and Jurymen in Seventeenth-Century England', in J. BREWER and J. STYLES (eds.), An Ungovernable People: the English and their Law in the Sixteenth and Seventeenth Centuries, London, 1980.

11 For a typical, and relevant, example of these propaganda works see J. CHEKE, The Hurt of Sedicion howe greveous it is to a Communewelth, London, 1549.

12 For a classic Marxist analysis of the operation of the criminal law, in this case concentrating on the eighteenth century, see D. HAY, Property, Authority and the Criminal Law, in HAY et al. (eds.), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, London, 1975. Hay’s thesis has attracted some criticism, notably: J.H. LANGBEIN, Albion's Fatal Flaws, Past and Present, 1993, 98, p. 96-120; and P. KING, Decision Makers and Decision Making in the English Criminal law, 1750-1800, The Historical Journal, 1984, 27, p. 25-58. King’s article is especially relevant to our purposes, as he stresses the participatory nature of the criminal law in this period, arguing that it could not have operated effectively without a wide degree of co-operation from non-elite people.

13 On this topic see J.A. SHARPE, Last Dying Speeches: Religion, Ideology and Public Execution in Seventeenth-Century England, Past and Present, 1985, 107, p. 144-167.

14 For a stimulating discussion of these themes, see E.P. THOMPSON, Whigs and Hunters: the Origins of the Black Act, London, 1975, p. 258-269.

Auteur

Senior lecturer in History, University of York (United Kingdom). He is the author of Early Modern England: a Social History 1550-1760 (London, Edward Arnold, 1987); and Instruments of Darkness: Withcraft in England c. 1550-1750 (London, Hamish Hamilton, 1996). He is currently researching further into English witchcraft, also in history of litigation in the early modem period.

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