by Dr. Laura Flannigan (St. John’s, University of Oxford)

The early modern period witnessed unprecedented levels of litigation. Indeed, the size of surviving archive of court rolls, pleadings, and depositions marks out the contours of a ‘legal revolution’ in the centuries up to c.1600, observable across much of the Western world. This trend, scholars have assumed, was preconditioned by population recovery following the Black Death, by rising literacy and document ownership, and by the centralisation of judicial systems under various monarchical regimes. Frequent litigation would seem to imply widespread knowledge of its norms and procedures among litigants – enough to drive them to seek out law courts and legal authorities more regularly. But what did (and what could) this knowledge consist of, how was it acquired and disseminated, who by, and how coherently or accurately? These were some of the questions that formed the genesis of this one-day workshop on ‘Popular Knowledge of the Law in Early Modernity’ at St John’s College, Oxford, with contributors exploring English and trans-Atlantic contexts for answers.

One distinction that emerged early in the day’s discussions was that between the knowledge of litigants and that of the lawyers who advised them. The former is typically very difficult to see, since most of the formal legal documents left to us were shaped by legal professionals according to conventional rhetoric and written by trained scribes or scriveners. Several papers tested overly simple presumptions about who these advisors were, however. Brodie Waddell presented findings from a wide-ranging survey of petitions to regional and central English courts, with an especial focus on petitioners’ autograph signatures. Over the course of the period, he showed, all manner of people might offer petition-writing services, including clergymen, tradesmen, and local officials.

Much of this advice was available close to hand. Mabel Winter’s paper identified the movers of litigation at the community level, with cases about the use of mills put to the court of Exchequer demonstrating how localised understandings of customs could be informed by memory, by court rolls, and sometimes by wealthier and more knowledgeable neighbours. These promoters might encourage and direct litigation, but could also advise on a whole range of actions designed to improve the chances of achieving justice before involving the authorities – in this instance, boycotting certain mills.

Another delineation discussed was that demarcating knowledge of substance from the processes of the law and its structures. In many of the courts discussed at this workshop – especially the equity courts of Chancery and Exchequer, and the conciliar courts of Star Chamber and Requests – petitioners and their scribes resorted to standard tropes of right, fairness, and conscience over more precise legal terminology or precedents. Consequently, we are often misled by plaintiffs’ assertions of their innocence or ignorance of legal concepts, compared to more cunning opponents. Possession of too much substantive legal knowledge was broadly criticisable, after all. As Joanna McCunn showed us, the legal profession was roundly lambasted in literature and drama of the age for overly complicating the languages and forms of legal documents (common lawyers, in response, blamed scriveners and ‘men unlearned’ for poorly drafted deeds).

William Cecil presiding over the Court of Wards circa 1560 – 1590. Unidentified painter, Public domain, via Wikimedia Commons

Assessing familiarity with the practicalities of law – with documents, procedures, and courts – puts us on firmer ground. That much of early modern English society knew how and where to litigate seems axiomatic from the frequency with complainants shopped around for the right forum or, more and more commonly, sued in as many different forums as possible. Litigants might move their civil suits between the equity courts and Parliament by the early seventeenth century, as Jason Peacey demonstrated in his paper, and they and their lawyers had to change tact when many of those same equity courts were abolished in 1641, as Daniel Gosling discussed.

At the individual level, the capacity for strategizing is reflected in the actions of those with the resources to engage with legal processes routinely. Mike Kipling presented the many cases of the merchant Thomas Turgys, a man familiar and active enough with the Elizabethan central courts that he sought to play them off against each other. Other plaintiffs made less well-advised suits. Hannah Worthen’s paper examining petitions collected in the aftermath of the Civil War reminded us of how often people entangled in legal conflicts were required to travel to commence litigation, or to defend themselves and give testimonies in other’s cases. It seems likely that many litigants factored that burden in when they chose to drag opponents all the way to Westminster.

One of more elusive areas of study is how and why any such knowledge could have been acquired. For the circulation of the substance of law to a wider populace, we might look to the reading out of statutes and their printing by the sixteenth century; to the regular attendance of men in their majority at local courts, where local ordinances were proclaimed; and to the general accessibility of court rolls, and even the records of the central courts, for perusal and reference. Jonathan McGovern provided further illustration by way of an unusually revealing case of a barber surgeon and business manager who found himself a defendant in Star Chamber, and who claimed to have come by knowledge of a 1514 statute, which he had acted upon against the plaintiff, from a pamphlet in an East Cheap printer’s shop.

Looking to wider documentary cultures, Brodie Waddell explored the possibility that manuscript and printed formularies of legal documents offered exemplar petitions. Prospective landholding lineage might have the formulae for various kinds of legal paperwork, as well as information about their own rights, closer to hand in their family’s archive. Imogen Peck’s paper posited that these collections were not mere masses of unorganised paper, but rather carefully curated, organised, and explained, often according to their value to live legal issues.

Precedents for different courts were well-known enough that they could be mimicked. Clare Egan’s paper discussed the often-conscious presentation of otherwise defamatory sets of libels as legal ‘articles’ or ‘plaints’ – some even aped the process of summonses and interrogatories, with the aim of defaming their rivals. Literature that was not itself explicitly about law could also convey, and even sharpen, its norms among certain topics and readerships. Sue Wiseman’s contribution illustrated a changing lexicon around indentured service in late-seventeenth-century Virginia and the Caribbean, especially in the ‘sung law’ of ballads, which functioned as complaint literature about work and the absence thereof. Legal knowledge could be formulated outside of formal encounters with the law and its agents, then; at the same time, forms and languages of law were pulled into wider culture.

With all of these potential cross-currents in mind, the coherence of this period’s ‘law-mindedness’ should come under scrutiny. It was certainly possible for litigants to act upon inaccurate or outdated understandings of the law. As Chloë Ingersent’s examination of some 15,000 suits from the Elizabethan Star Chamber showed us, hedge-breakers acting in pairs or women tearing down enclosures without their husbands might have believed they would be ‘saved harmless’ by loopholes in legal conceptions surrounding riot and gendered notions of culpability. Yet they could find themselves punished in that court for such deceitful and fraudulent behaviour – especially if they attempted to defraud the court itself.

Likewise, in Jonathan McGovern’s early sixteenth-century case of the acquisition and application of statute law, all was not as well as it seemed: the defendant in question had apparently misunderstood what the act he had read actually empowered him to do, as a private party. That same gulf between formal and ‘popular’ norms was observed in different periods and geographies, too. Sung Yup Kim’s paper on the perception of JPs in eighteenth-century New York raised the intriguing proposition that these officials were more often accused of arbitrariness when diligently following the rules of process-serving, rather than acting with discretion towards a public they were supposed to serve.

In all, the workshop productively complicated the notion of ‘popular knowledge’ and how we find it amid vast archives of pleadings, depositions, and rulings. By ‘popular’ we really mean the lay consumers of the legal system rather than its professional lawyers, although how their knowledge bases interacted is an important part of the puzzle. Moreover, the day’s discussions highlighted the existence of knowledge bases specific to merchants, to landowners, to tenants reliant on mills or on enclosed lands, and to women (differing between wives and widows, perhaps). The sources of knowledge were variable, too, ranging from the ‘official’ word of statute law posted in market squares and customs proclaimed at local courts, to the informal advice of trusted neighbours and communal experience. These delineations help define some of the inroads to understanding how knowledge and use of the early modern legal system informed one another.

Past & Present logo, 2017 all rights reserved