As Christopher Brooks once put it, social relations in early modern England were often mediated through the law. Lawyers abounded, and the courts system became increasingly complex and wide-ranging. The law was often the tool of central government, to punish and enforce behaviour, but social historians have emphasised the participatory nature of the law, and noted the extent of law legal knowledge. This class examines the uses and functions of the law in early modern society, with particular reference to England, and also introduces students to the ways historians can use legal sources for a variety of historical enquiries.
To what purposes did people put the law in this period?
- To what extent was the law an instrument of imposed authority, or coterminous with ‘the state’?
- Was the law truly participatory?
- How much continuity was there between how people used the English and continental legal systems?
Please read the Dolan and the extract from The State and Social Change, the Farebancke case, the sheet of short extracts, and either Cave v. Ellerker or Attorney General v. Salkeld.
Please then pick at least one of the other core readings, and at least one of the further readings, in order to prepare an anwer to the question ‘what functions did the law serve in early modern society?’.
You may find this visual summary of the English legal system by Brodie Waddell useful for visualising how the various courts worked with one another. https://manyheadedmonster.files.wordpress.com/2019/10/waddell-2019-scheme-of-courts-1550-1750.pdf
Finally, this guide to early modern sources may prove useful for those of you unused to legal documents.
Sangha, Laura, and Willis, Jonathan P., eds, Understanding Early Modern Primary Sources (London: 2016)
Attorney General v. Salkeld, STAC 8/16/18
Cave v. Ellerker, STAC 5/C5/27
Whittaker v. Farebancke, STAC 8/296/24
*Dolan, Frances, ‘First Person Relations: Reading Depositions’, in True Relations: Reading, Literature and Evidence in Seventeenth Century England (Philadelphia: 2013), pp. 111-153
*Hindle, Steve, ‘The Provision of Prerogative Justice’, and ‘The Keeping of the Public Peace’ in The State and Social Change in Early Modern England, c. 1550-1640 (Basingtoke and London: 2000), pp. 66-115
Essential reading: provides a perspective both on ‘top-down’ and ‘bottom-up’ formulations of state formation via the law.
Hindle, Steve, ‘Self-image and public image in the career of a Jacobean magistrate: Sir John Newdigate in the Court of Star Chamber’, in Braddick and Withington, eds, Popular Culture and Political Agency in Early Modern England and Ireland: Essays in Honour of John Walter (Woodbridge: 2017), pp. 123-143
Demonstrates how the central law courts could be used by locals against gentry.
Holmes, Clive, ‘The Legal Instruments of Power and the State in Early Modern England’, in Padoa-Schioppa, Antonio, ed., Legislation and Justice (Oxford: Clarendon Press, 1997), pp. 269-289
Clear analysis of law as state instrument.
Ingram, M.J, ‘Communities and Courts: Law and Disorder in Early Seventeenth-Century Wiltshire’, in Cockburn, JS., ed., Crime in England 1550-1800 (London: 1997), p. 110-134
Ingram is very good on local communities’ use of the law.
Strange, Diane, ‘From Private Sin to Public Shame: Sir John Digby and the use of Star Chamber in Northamptonshire and Bedfordshire, 1610’, Midland History 44:1 (2019), pp. 39-55
Really wonderful for both thinking about how people used the court of Star Chamber and how historians can use legal documents.
Clarke, Lucy J.S., ‘I say I must for I am the kings Shrieve’: magistrates invoking the monarch’s name in 1 Henry VI (1592) and The Downfall of Robert Earl of Huntingdon (1598)’, Historical Research 95:268 (2022), pp. 196-212
Latter half is useful for thinking about commoners using the law as a weapon, and raising questions about the relationship between the law and state authority.
Cromartie, Alan, ‘The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England’, Past and Present 163 (1999), pp. 76-120
A bit dense, but one of the defining studies on the relationship between law and the monarch.
Cuttica, Cesare, ‘An Absolutist Trio in the Early 1630s: Sir Robert Filmer, Jean-Louis Guez de Balzac, Cardin le Bret and their Models of Monarchical Power’, in Cuttica and Burgess, eds, Monarchism and Absolutism in Early Modern Europe (London: 2015), pp. 131-145
European perspectives on the nature of the relationship between law and monarch.
Gowing, Laura, ‘Language, power and the law: women’s slander litigation in early modern London’, in Kermode and Walker, eds, Women, Crime and the Courts in Early Modern England (Abingdon: 1994), pp. 26-42
Excellent work that opens up women’s place in the courts in early modern London.
Härter, Karl, ‘Security and “Gute Policey” in Early Modern Europe: Concepts, Laws, and Instruments’, Historical Social Research 35:4 (2010), pp. 41-65
Longue durée approach to law as crown instrument.
Kesselring, Krista J., Making Murder Public: Homicide in Early Modern England, 1480-1680 (Oxford: 2019), esp. intro, ch1 and ch 4.
Utterly brilliant: examines how the crown brought murder more fully into its own remit, and how the offence became increasingly understood as one against the state or public, rather than just the monarch.
Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, France (London: 2013)
Extremely good for the nuts and bolts of prosecution in the period, and for the comparison between England and the continent.
Laven, Peter, ‘Banditry and lawlessness on the Venetian Terraferma in the later Cinquecento’, in Dean and Lowe, eds., Crime, Society and the Law in Renaissance Italy (Cambridge: 1994), pp. 221-248
Interesting case of overlap between social groups and disorder, and the insufficiency of ‘state’ power.
Lombardi, Daniela, ‘Intervention by church and state in marriage disputes in sixteenth- and seventeenth-century Florence’, in Dean and Lowe, eds., Crime, Society and the Law in Renaissance Italy (Cambridge: 1994), pp. 142-156
Useful for thinking about ‘state’ power and its relationship to different legal jurisdictions.
Rublack, Ulinka, ‘Gossip, Silence, or Accusation’, in The Crimes of Women in Early Modern Germany (Oxford: 1999), pp. 16-42
A nice perspective on communal responsibilities and the place of women.
Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge: 1998), esp. ch 1 and 2.
Detailed exploration of the ways that women could and could not use the law.
Vermeesch, Griet, ‘Reflections on the relative accessibility of law courts in early modern Europe’, Crime, Histoire and Sociétés 19:2 (2015), pp. 53-76
Fairly dry but useful quantitative review of a variety of different court systems.
Weisser, Michael R., Crime and Punishment in Early Modern Europe (Bristol, 1979), chapter 4 (pp. 89-105)
Basic but useful for overview of basic functions of criminal law in early modern Europe.
Wood, Andy, ‘Custom, Identity and Resistance: English Free Miners and Their Law c. 1550-1800’, in Griffiths, Fox and Hindle, eds, The Experience of Authority in Early Modern England (Basingstoke: 1996), pp. 249-285
Excellent for thinking about who the law was ‘for’ and about lay legal knowledge.