A Cultural History of Law in the Age of Enlightenment

Rebecca Probert, John Snape, Rebecca Probert

• Publisher: Bloomsbury Academic
• Year: 2021
• ISBN:
  9781350079250
• Edition: 1
• Topic: Geschichte
• Subtopic: Sozialgeschichte

The period of the Enlightenment was marked by innovation in political, cultural, religious, and educational ideas with the aim of improving the experience of human beings in society. Key to intellectual debates and day-to-day life were ideas about the law. Many looked to Britain, and to the British, as exemplars of a state governed by moderate laws under a moderate constitution. Britain's laws and constitution were portrayed and satirized in almost every artistic medium. A Cultural History of Law in the Age of Enlightenment presents essays spanning the "long 18th century" (1680 to 1820) which explore the place of law in a range of creative and artistic media, all of which flourished in a commercial society with law at its center and enlightenment as its aim. Drawing upon a wealth of visual and textual sources, A Cultural History of Law in the Age of Enlightenment presents essays that examine key cultural case studies of the period on the themes of justice, constitution, codes, agreements, arguments, property and possession, wrongs, and the legal profession.

CHAPTER ONE

Justice

Popular Ideas and Actions in the Long Eighteenth Century

STEVE BANKS

As a term, “justice” is a difficult abstraction; aspirational, ill-defined, often seeming to refer to a kind of balance that will only be achieved when the world is made “right.” Historically, men and women have turned to a god for justice, aware that only a god is likely to be able to deliver it in its final definitive form—and often not in this world but the next. In the material world though, law has always made great claims in respect of its connection to justice. Indeed, law tries to occupy as much of justice’s cognitive space as possible. Law tries to consume justice, to swallow it whole in order to legitimize itself and to claim that there is no justice to be done or found outside “The Law.” Not for nothing do we in the United Kingdom (as in many other places) now have a governmental organization that grandly declares itself to be the Ministry of Justice.

In the eighteenth century, however, things were somewhat different. The state’s capacity to act was severely circumscribed. Jennifer Davis observed of a later period that historians have “overestimated the extent to which the nineteenth-century state was either able or willing to intervene in the everyday affairs of its subjects” (1984: 314). What was true of the nineteenth century was even more true of an eighteenth century in which the state was quite unable to monopolize the justice business to the extent observable today. This chapter then considers what ordinary people meant when they spoke of justice in the long eighteenth century and considers how, in the absence of an all-powerful legal center, they tried to obtain it. As the chapter will observe, notions of justice were generally rooted in particular times, places, and privileges. The term “justice” was more often used in reference to very particular bundles of entitlements rather than employed as an all-embracing word expressing general notions of fairness or even personal rights. Injustice was said to have occurred when traditional entitlements had not been respected or when other legitimate expectations within a community had been ignored. To remedy injustice recourse was generally had to local mechanisms. Some of those mechanisms were official and some unofficial although, as we shall see, the barriers between the two were not always easy to define. In the absence of a monopolistic legal system those seeking their entitlements or wishing to uphold accepted social mores often relied upon lively traditions of self-help expressed through the customary rituals of popular justice.

A WORLD OF LEGAL PLURALISM

It is scarcely an exaggeration to say that there was no unified legal system in the long eighteenth century. What one observes, rather, are a series of jurisdictions, sometimes running parallel, sometimes overlapping, but often operating independently of each other. There was a central spine of higher civil and criminal courts but it was afflicted with many procedural complications. Not the least of these was the fact that there was a division between the common law courts and the courts of equity. Cases to be heard under the common law naturally went before the common law courts. However, it was not possible for formal rules of law to deal fairly with all imaginable circumstances. If application of the law might do a manifest injustice it was possible to seek a remedy instead in the courts of equity. The most notable of these was the Court of Chancery and there were times when there was rivalry between it and the common law courts which led in turn to some legal uncertainty and confusion. The position was additionally complicated by the fact that there was also an independent system of ecclesiastical courts. The church court system experienced a slow decline during the eighteenth century but this was uneven and in one particular area, Lancashire, there may in fact have been more ecclesiastical prosecutions than in the century before (Outhwaite 2006). This ecclesiastical system was riven with its own anomalies: even in 1832 there still existed some three hundred “peculiar courts,” that is to say independent ecclesiastical courts outside of the jurisdiction of the parishes within which they were located.

For ordinary folk, contact with legal authority often came in the form of a Justice of the Peace (hereafter “JP”) sitting either with a colleague or conducting business on his own—usually in his home. Of these JPs perhaps three things need briefly to be said. Firstly, that they exercised the most extraordinary personal discretion at the beginning of the eighteenth century.

So powerful were the Justices that they were virtually independent … neither the central government nor Parliament told them what to do, closely supervised their activity, or even insured that they act at all. (Landau 1984: 2)

Secondly, while there have been attempts to cast the whole legal system as the mere tool of the propertied classes, modern scholarship has shown that the common people frequently consulted and complained to JPs—for example after being assaulted (King 2004). As Peter King has observed, “Almost every aspect of social and economic life might generate a dispute, complaint or criminal accusation before a summary court” (2004: 128). Finally, far from being imperious and aloof, most magistrates were not at all indifferent to the mores of the community that surrounded them. In part this was due to simple pragmatism. If they had in theory a wide independence of action nonetheless JPs had to exercise caution insofar as they had rather limited resources with which to enforce their authority. Persuasion was often their best tool, and brute force of doubtful effect. In the majority of matters brought before them they acted not as unbending judges but rather as mediators or arbitrators. To quote King again:

A huge variety of minor disputes—illegally obtained property, interpersonal violence, insults, wages, poor relief, dangerous driving, swearing, etc.—were all resolved by these magistrates without recourse to jury trial or summary punishment. (2004: 149)

Even in respect of criminal matters they generally strove to have the affair “compromised,” that is, settled by a monetary payment to the victim.

Notwithstanding the wide remit of the JPs, there were still areas of jurisdiction that lay within the old manorial courts. Studies such as that of the Manor of Havering in Essex have shown that both the civil and in particular the criminal jurisdiction of manorial courts ebbed away during the seventeenth century in consequence of the emergence of the petty sessions and the expanding remit of the quarter sessions (McIntosh 1991). However, important agricultural questions remained within their purview, including water rights, questions over land transfer, and disputes over pasture. It was still said in 1809 that, “Manor courts are pretty generally held, even where the copyhold tenure is extinct, and their utility is experienced on many occasions, as the settlement of boundaries and preventing of litigations, appointment of constables etc” (Marshall 1818: 215). Matters were settled according to customary practice rather than common law and there were important variations between manors. Thus Lloyd Bonfield has observed that in these courts, “law in its modern sense may be absent, regardless of how judgments are articulated” (1989: 530–531). Similarly, Christopher Harrison has remarked that, “I have yet to come across a court leet record which exactly replicates the contemporary lawyer’s view on what these courts did” (1997: 46). Legal plurality was further evidenced by the operation of special situational or occupational courts. Within the royal forests, for example, forest law prevailed, and this was enforced through gatherings of the forest wardens at verderer’s courts. Tin miners were allowed to govern their own industry and offenses within it were prosecuted in front of gatherings of fellow miners in special stannary courts.

Custom remained an important determinant of legal outcomes and the writer Oliver Goldsmith declared that, “nothing could be more certain than that numerous written laws are a sign of a degenerate community, and are frequently not the consequences of vicious morals in a state, but the causes” ([1759] 1934: 415). However, although written law and custom could, and often did, inform each other, the written law could only go so far in acknowledging the diversity of customary practice and “from the middle of the sixteenth century onwards, that conflictual relationship between custom and central law was given a new expression with the growing strength of a variety of central equity law courts based in Westminster” (Wood 1997: 54). There was genuine perplexity when courts began to challenge customary entitlements and declare that they were no longer, nor indeed ever had been, lawful.

JUSTICE FOR THE COMMUNITY: CUSTOM AND ENTITLEMENT

In The Rights of Man (1791–1792), Tom Paine famously espoused privileges conferred by the mere circumstance of common humanity. However, when rights were referred to in the past they were often what we might better refer to as “entitlements,” claims that were unashamedly particular to the claimant. Entitlements were vested in membership of a particular community and the enjoyment of a particular social situation; their very value lay in the fact that others could not enjoy them. As E.P. Thompson remarked, local economies were “parochial and exclusive: if Weldon’s rights were ours, then Brigstock men and women must be kept out” (1991: 179). Justice then, was often a matter of recognition of entitlement; it was situational and referenced the traditions of communities that did not change much during the first half of our period.

The slow pace of change can be partly attributed to the fact that up until 1750 there was only a very gradual increase in population. There were about 5.3 million people in England and Wales in 1700 and fifty years later that number had only risen to about 5.9 million. It was thereafter that the population growth accelerated, with the total reaching 9.3 million by 1801 (Razell 1965). Traditional norms were maintained by the limitations on physical movement around the kingdom: most people were tied to the land and the agricultural seasons. In addition, perhaps a further 7.5–10 percent of the labor force was bound in non-agricultural apprenticeships (Wallis 2008). The restricted mobility that resulted suited state policy very well. A fear of masterless men and women moving about at will had influenced government from Elizabethan times onward. So the Statute of Artificers of 1563 had given the Justices power to impose yearly employment contracts upon unemployed workmen and laborers¹ and those wishing to learn a craft were forced into seven-year apprenticeships.² Once under contract, workers were bound and there were ten acts between 1720 and 1792 that prescribed whipping and incarceration for those in particular occupations that had left their employment early. These culminated in the Master and Servant Act (1823), which made any breach of any employment contract a summary offense liable to three months imprisonment.³ Some magistrates applied the penalties with enthusiasm (Hay 1998). Those without employment were also constrained; in their case by the Act of Parish Settlements (1662) which obliged parishes to assist their own paupers but also instructed them to remove back to their own parishes those paupers whose places of legal settlement were elsewhere. It was possible to change parishes (most commonly, at least for women, by marriage) and legal settlement could be acquired by forty days’ residence, but parish officials tended to treat new arrivals with some suspicion until it was established that they were not likely to become a burden upon the local poor rate (Fideler 2006). The importation of large numbers to staff major enterprises was potentially of great concern since should the enterprise fail then the charge upon the local poor rate might become prohibitive. However, the judges intervened to declare that workers who moved into a parish to work for such an enterprise would not acquire rights of settlement there and thus could be returned to their originating parishes if need be.⁴ In the meantime, vigorous steps were taken to remove vagrants. There were Vagrancy Acts in 1700, 1714 and 1744 and between 1776 and 1778 there were some 14,789 vagrant removals in Middlesex alone (Hitchcock, Crymble, and Falcini 2014). The overall effect of poor law and master and servant legislation was to affirm that everyone belonged to a particular parish and to ensure that only a minority were free to move around as they pleased.

Many, though, had no expectation of moving away from their parish. There was a strong sense of local attachment. “Every man and woman and child old enough to understand anything looks upon his parish as being partly his”⁵ wrote the journalist William Cobbett in the early nineteenth century, and the same view had prevailed in earlier decades as well. Emotional attachment ran in tandem with material benefits such as poor relief, the benefit of charitable bequests and the largess of doling customs. Many benefited from access (by law or custom) to local commons and wastes. Even those apparently well within the cash economy often depended upon grazing animals, gathering firewood, picking berries and so on. They also cultivated their own plots. J.M. Neeson’s study of twenty-three unenclosed parishes in Northamptonshire in the late eighteenth century has shown that 53 percent of the population owned at least some land, and at Wigston Magna in Leicestershire in 1765 some 99 out of the 200 families owned a plot of between one and fifteen acres (1993; Hoskins 1957). Much of the cultivation and harvesting was necessarily done in collaboration with others. Membership of the parish brought not only economically quantifiable benefits it also served to ignite moral claims. As Bernard Capp observes, great value was placed upon acts of neighborliness, reporting and rescuing stray animals, lending tools, visiting the sick, and so on; without acts of mutual support many households could not have survived (2003: 27).

To many people then, their parish was their nation entire. As with a nation, collective practices, especially festive practices, reinforced the mental and geographic integrity of the parish. For example, annual perambulations around the parish boundary ensured that the boundaries were secured (Underdown 1985a). Where no boundary markers existed the old committed to the young the memory of where the borders lay so that the neighboring parish could not quietly encroach. Encroachment was a recurrent concern since practices were as much dedicated to exclusion as inclusion. The poet John Clare referred to those living outside his parish of Helpston in Northamptonshire as being, “out of the world,” living at “the world’s end” (Snell 2003: 5). These were “foreigners” needing to be kept at bay and as such were subject to the same prejudices as foreigners anywhere. Foreigners were deficient, dishonest, their women sexually lax and so on (Grose 1787). Villagers often met and fought each other (Stevenson 1979). They took particular delight in disrupting each other’s festive practices, so for example, thirteen men stole the maypole from the parish of Gresford in 1686 and found themselves presented at Denbighshire Quarter Sessions as a result.⁶

One must not exaggerate the insularity of these communities, since they were not hermetically sealed. There were often strangers passing through. Sometimes these might be men and women peddling goods—and this trade was both routine and necessary. Considerable, sometimes even remarkable, distances were covered by those heading for hiring fairs, taking up offers of employment, seeking relatives, or even traveling to give evidence at the assizes. In addition, large companies of drovers, harvesters, and fruit pickers traveled seasonally in the course of their employment. Furthermore, ...