Abstract
As the Star Chamber archive suggests, the relationship between social harmony and social conflict was particularly ambiguous in late Elizabethan and early Stuart England. This was a society whose obsession with order is axiomatic, yet one where tension, dispute and litigation were common enough. Fundamentally, the community politics of this society entailed the resolution of social conflict, the keeping of the public peace. Pacification appealed to an extensive value system of neighbourly relations, especially to aspirations of charity and harmony. In practice, however, the ‘moral economy of the early modern community’ might be less than consensual, the meaning of charity might fluctuate, and the keeping of the peace might involve public processes of constraint or coercion as well as private injunctions to mutuality and forgiveness.2 In this sense, pacification and litigation enjoyed a particularly problematic relationship, one that is much commented upon, though not yet fully resolved, in the historiography of the period. It will be argued here that this ‘culture of reconciliation’ depended upon far more than ideals of neighbourliness.3 Ultimately, pacification involved the injection of some measure of public authority into the ‘disputing process’, and it is with the experience of that authority that this chapter is concerned.
I have noted one thing, that your ancestors though they had no authority, were so painful and careful as soon as they heard of any differences or suits between any of their neighbours, that they would interpose themselves and mediate an end, by which the expense of time and much money was saved, and the courts at Westminster nothing near so filled and pestered with causes as now they are.
Sir Thomas Egerton, Circuit Charge in Star Chamber, 1602[?]1
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Notes
Simon Roberts, Order and Dispute (Harmondsworth, 1979); Bossy (ed.), Disputes & Settlements.
Lawrence Stone, ‘Interpersonal Violence in English Society, 1300–1980’, P&P 101 (1983), 32;
Stone, The Family, Sex and Marriage in England, 1500–1800 (Oxford, 1977), pp. 95, 98.
J.M. Beattie, ‘The Pattern of Crime in England, 1660–1800’, P&P 62 (1974), 47–94;
Beattie, Crime and the Courts in England, 1660–1800 (Oxford, 1986), pp. 74–139, 400–49, 619–38;
Wrightson and Levine, Poverty & Piety, pp. 110–41, 173–85; Wrightson, English Society, pp. 39–65, 149–82; J.A. Sharpe, ‘“Such Disagreement Betwyx Neighbours”: Litigation and Human Relations in Early Modern England’, in Bossy (ed.), Disputes & Settlements, pp. 186–7; Sharpe, ‘The People & the Law’, pp. 262–5; Sharpe, ‘Debate: The History of Violence in England, Some Observations’, P&P 108 (1985), 212–13.
Margaret Spufford, ‘Puritanism and Social Control?’, in Fletcher and Stevenson (eds), Order & Disorder in Early Modern England, p. 43; Cynthia B. Herrup, ‘Crime, Law and Society: A Review Article’, Comparative Studies in Society and History 27 (1985), 170.
Cynthia Herrup, ‘Law and Morality in Seventeenth-Century England’, P&P 106 (1985), 102–23; and Herrup, The Common Peace. Cf. Alan Macfarlane, The Justice and the Mare’s Ale: Law and Disorder in Seventeenth-Century England (Cambridge, 1981), pp. 1–26, 173–99, quoting p. 194;
ss Macfarlane, Capitalism (Oxford, 1987), pp. 53–76.
Eamon Duffy, The Stripping of the Altars: Traditional Religion in England, 1400–1580 (New Haven, Conn., 1992), p. 95.
W.G. Runciman, A Treatise on Social Theory, Volume II: Substantive Social Theory (Cambridge, 1989), p. 123.
See, e.g., Joel B. Samaha, ‘The Recognizance in Elizabethan Law Enforcement’, AJLH 25 (1981), 189–204;
Norma Landau, The Justices of the Peace, 1679–1760 (Berkeley, 1984), pp. 173–208;
Ruth Paley (ed.), Justice in Eighteenth-Century Hackney: The Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book (London Record Society 28, 1991), pp. xvi–xxii;
Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c.1660–1725 (Cambridge, 1991), pp. 19–41, 95–126;
Shoemaker, ‘Using Quarter Sessions Records as Evidence For the Study of Crime and Criminal Justice’, Archives 20 (1993), 145–57.
For treatments of disorder see most of the essays in three recent collections: Brewer and Styles (eds), An Ungovernable People; Paul Slack (ed.), Rebellion, Popular Protest and the Social Order in Early Modern England (Cambridge, 1984); Fletcher and Stevenson (eds), Order & Disorder in Early Modern England. The oustanding discussion of ideals of order is Wrightson, ‘Two Concepts of Order’.
Quoting Edward Thompson, ‘Folklore, Anthropology and Social History’, Indian Historical Review 3 (1977), 255. For the violence debate itself, which has generally assumed rather than explained the link between litigation, violence and mentalities, see Macfarlane, The Justice & the Mare’s Ale;
J.A. Sharpe, ‘Domestic Homicide in Early Modern England’, HJ 24 (1981), 29–48;
Stone, ‘Interpersonal Violence’; J.M. Beattie, ‘Violence and Society in Early Modern England’, in A.N. Doob and E.L. Greenspan (eds), Perspectives in Criminal Law: Essays in Honour of John Ll.J. Edwards (Toronto, 1984), pp. 36–60; Sharpe and Stone: ‘Debate: The History of Violence in England’; Beattie, Crime & the Courts, pp. 74–139;
J.S. Cockburn, ‘Patterns of Violence in English Society: Homicide in Kent 1560–1985’, P&P 130 (1991), 70–106;
and Susan Dwyer Amussen, ‘Punishment, Discipline and Power: The Social Meanings of Violence in Early Modern England’, JBS 34 (1995), 1–34.
G.L. Williams, ‘Arrest for Breach of the Peace’, Criminal Law Review (1954), 578; Law Commission (LAW COM. no. 222), Binding Over: Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965 (HMSO Cm 2439, February 1994), pp. 4, 6, 30–1, 41.
This problem of ‘legal pluralism’ is addressed in Wrightson, ‘Two Concepts of Order’; Amy L. Erickson, ‘The Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England’, EcHR 2nd ser. 43 (1990), 21–39;
and Peter King, ‘Gleaners, Farmers and the Failure of Legal Sanctions in England 1750–1850’, P&P 125 (1989), 116–50.
Cf. Natalie Zemon Davis, ‘The Rites of Violence: Religious Riot in Sixteenth-century France’, reprinted in Davis, Society and Culture in Early Modern France (Stanford, 1975), p. 187.
Oathtaking and perjury are neglected subjects, although preliminary discussions include Perez Zagorin, Ways of Lying: Dissimulation, Persecution and Conformity in Early Modern Europe (Cambridge, Mass., 1990);
Zagorin, ‘The Historical Significance of Lying and Dissimulation’, Social Research 63 (1996), 863–912;
John Spurr, ‘Perjury, Profanity and Politics’, The Seventeenth Century 8 (1993), 29–50;
James C. Oldham, ‘Truth-Telling in the Eighteenth-Century English Courtroom’, Law and History Review 12 (1994), 95–121.
For an analysis of such petitions, see Hindle, ‘The State & Local Society’, pp. 243–52. Cf. Susan Amussen, An Ordered Society: Gender and Class in Early Modern England (Oxford, 1988), p. 166.
Dorothy J. Clayton, ‘Peace Bonds and the Maintenance of Law and Order in Late Medieval England’, BIHR 58 (1985), 133–48;
and Clayton, The Administration of the County Palatine of Chester, 1442–85 (Manchester, 1990), pp. 240–1.
G.P. Higgins, ‘The Government of Early Stuart Cheshire’, NH 12 (1976), 32–52; T.C. Curtis, ‘Quarter Sessions Appearances and Their Background: A Seventeenth-Century Regional Study’, in Cockburn (ed.), Crime in England, pp. 135–54.
Shoemaker, Prosecution & Punishment, pp. 117, 277, 280–1. Donald Woodward, ‘The Determination of Wage Rates in the Early Modern North of England’, EcHR 2nd ser. 47 (1994), 40.
Cf. Donna T. Andrew, ‘The Code of Honour and its Critics: The Opposition to Duelling in England, 1700–1850’, SH 5 (1980), 434;
Vic Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford, 1994), pp. 225–41,
and John Stevenson, ‘An Unbroken Wave?’, HJ 37 (1994), 695.
Phillipa C. Maddern, Violence and Social Order: East Anglia, 1422–42 (Oxford, 1992), p. 227.
For a subtle and astute analysis of a not entirely dissimilar long-term attitu-dinal shift, see Keith Thomas, Man and the Natural World: Changing Attitudes in England, 1500–1800 (1983).
Sharpe, ‘“Such Disagreement Betwyx Neighbours”’, pp. 169–70. Cf. Paley (ed.), Justice in Eighteenth-Century Hackney, pp. xxix–xxx. For a full-scale study of malice at law in the later period, see Douglas Hay, ‘Prosecution and Power: Malicious Prosecution in the English Courts, 1750–1850’, in Douglas Hay and Frances Snyder (eds), Policing and Prosecution in Britain, 1750–1850 (Oxford, 1989), pp. 343–95.
This Weberian definition of the state is arguably implicit in the notion of the King’s peace. Those bound by recognizance were expected to keep the peace to ‘the King and all his liege people’. See Dalton, The Countrey Justice, p. 127; and the legal formulae for Jacobean recognizances surviving as CRO QJF 32/1/55. On Weber’s definition, see R. Axtmann, ‘The Formation of the Modern State: A Reconstruction of Max Weber’s Arguments’, History of Political Thought 11:2 (1990), 295–311.
See S.B. Chrimes, Henry VII (1972), pp. 212–16;
J.R. Lander, ‘Bonds, Coercion and Fear: Henry VII and the Peerage’, in Lander, Crown and Nobility, 1450–1509 (1976), pp. 267–300;
Williams, The Tudor Regime (Oxford, 1979), pp. 393–4; and Morrill, Cheshire, pp. 280–3; Underdown, Revel, Riot & Rebellion, pp. 199–206;
John Sutton, ‘Cromwell’s Commissioners for Preserving the Peace of the Commonwealth: A Staffordshire Case Study’, in Ian Gentles, John Morrill and Blair Worden (eds), Soldiers, Writers and Statesmen of the English Revolution (Cambridge, 1998), pp. 151–82.
In different ways, the works of Elias on manners, on Foucault on surveillance and of Bakhtin on Rabelasian carnival converge in a portrait of the mechanics of the enforcement of ‘cultural order’. Norbert Elias, The Civilising Process: Sociogenetic and Psychogenetic Investigations, Volume 2: State Formation and Civilisation ([1939] English trans., Oxford, 1982);
Michel Foucault, Discipline and Punish ([1975] English trans., Harmondsworth, 1979);
Mikhail Bakhtin, Rabelais and His World ([1965] English trans., Bloomington, 1984).
For a treatment of some of these themes, see Peter Burke, History and Social Theory (Cambridge, 1992), pp. 147–58.
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© 2002 Steve Hindle
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Hindle, S. (2002). The Keeping of the Public Peace. In: The State and Social Change in Early Modern England, 1550–1640. Early Modern History: Society and Culture. Palgrave Macmillan, London. https://doi.org/10.1057/9780230288461_4
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