Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558-1660by Paul Raffield, Raffield Paul
Raffield (constitutional law and legal history, Birkbeck College, U. of London) works thematically through the development of the secular legal profession from 1558 to 1660, including the emergence of its powerful oratory and narrative, the elaboration of its other oral traditions such as communal dining, its transition to text and symbol, its elements of theater, its… See more details below
Raffield (constitutional law and legal history, Birkbeck College, U. of London) works thematically through the development of the secular legal profession from 1558 to 1660, including the emergence of its powerful oratory and narrative, the elaboration of its other oral traditions such as communal dining, its transition to text and symbol, its elements of theater, its relationship to the English state, and its fates under Charles I (in which the Inns of Court declined in their independence and influence), in the unsettled period in which the nation seemed to rule itself by means of pamphlet, and during the Interregnum. One of Raffield's most interesting observations is that Commons developed from a simple meal and Holy Communion to become an ideal society governed by the perfect reason of common law. Annotation ©2006 Book News, Inc., Portland, OR
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Cambridge University Press
0521827396 - Images and Cultures of Law in Early Modern England - Justice and Political Power, 1558-1660 - by Paul Raffield
A mile downstream from Westminster, in the enclosed environs of the Inns of Court, the English legal profession of the sixteenth and early seventeenth centuries created a commonwealth of lawyers. The content of its constitution was founded on a code of manners, integrating the moral and ethical precepts of Judaeo-Christian theology and Neoplatonic humanism. The self-governing legal community gave physical expression to a Utopian ideal: an autonomous state governed by the equitable principles of common law ideology. The physical structure of the Inns and the institutional existence of their members provided a microcosm of the ideal English state, in which the ethical subject of law was acknowledged as a constitutional entity and the embryonic social contract between subject and ruler was nourished and enhanced. The legal community represented and articulated this unprecedented relationship, and through the regulation of its quotidian existence delineated the rights, obligations and restrictions that attached to it.
In jurisprudential terms, the principal achievement of the Henrician Reformation was to establish the primacy and sovereignty of a secular legal system, albeit one strongly informed by its religious inheritance. Common lawyers demarcated the boundaries of jurisdiction between ecclesiastical and common law, but it is evident that the English legal system derived most of its traditions from the laws and customs of the Roman Church. As the authority of crown and church became coextensive during the reign of Henry Ⅷ, following the Act of Supremacy, so common law acquired much of the jurisdiction previously associated with ecclesiastical law. A principal argument of this book is that through the various signs of its legitimacy and sovereignty the English constitution was consciously developed to represent the indivisibility of divine law and common law within a classically ordered cosmos.1 Although common lawyers and jurists of the early modern period argued that the English legal system represented the coalescence of divine law, human reason and natural law,2 the constitution was characterised principally by its unwritten nature, unfettered by formal constraints. In such a system, willing subjection by the individual to the authority of law is determined by the perceived legitimacy of the legal institution. Unblemished institutional provenance is therefore a crucial indication of lawful authority. The absence of textual codification necessitates that the legitimacy of the legal institution, and of the constitution that it embodies, is established with reference to a system of representations and visual signs. This system can be described broadly as the aesthetics of law: the idea that governmentality expresses the 'art' of law.3 It is an art in which the perception of the image or sign is manipulated so that the subject of law attaches itself willingly to the authority of the legal institution.
The sign system of the early modern legal profession was predicated on the theory that the origins of common law lie beyond the memory of man. Jurists argued that substantive law derived from the distillation of ancient custom and was therefore largely unwritten, the principles enshrined in common law having their textual origins in Judaeo-Christian scripture. These practices attain the authority of law by means of the form through which they manifest themselves, or are 'presenced' in social life. The legal community at the Inns of Court was the principal architect in shaping and constructing all such representations. Following its expansion and standardisation during the sixteenth century, the political influence of the legal profession was such that it became the pre-eminent institutional body to affect directly the shape of an emergent constitution, in which common law was sovereign. The Inns of Court, which developed on an unprecedented scale throughout this period, were symbols and embodiments not only of the self-proclaimed status of the legal profession as legitimate guardians of the constitution, but also of the values inherent in the constitution itself. Their world within a world endeavoured to constitute an exemplary community of impeccable genealogy, whose self-governing status was essential to the regulation of that community.4 Through the active intervention of their governing bodies, the Inns of Court legislated for a living constitution within their own sovereign realm. The regulation of every aspect of diurnal life was intended to be instrumental in the realisation of an ideal commonwealth, whose citizens were guided and united by their shared belief that the common law embodied ethical principles, adherence to which would ultimately ensure the effectuation of a Utopian state. Central to the creation of this state is the Platonic notion of order as a symbol of perfection; its achievement, in the state or in the individual, depends upon the correct ordering of parts and the performance by each part of its allotted function.5
My analysis is founded on the historical and philological observation that the sources of the Ancient Constitution are classical and continental, rather than indigenous. That the insular tradition is a foreign importation supports the normative argument that it is the symbolic presence and value of legality, the semiotic or appearance of a native law that is the reality of the tradition, rather than its quotidian judgments and other elaborations of rules. The integration of Christianity and Neoplatonic humanism, represented at a cultural level by the artistic and literary achievements of the European Renaissance, manifested itself in a unique and unprecedented manner in the struggle for political sovereignty in post-Reformation England. Successive Tudor monarchs consolidated and enhanced the independent status of the nation-state, providing stability and security through increased use of the royal prerogative. Common lawyers responded to the threat of absolutism by citing the Ancient Constitution as the amorphous symbol of fundamental rights and freedoms.
The order of signs created by the Elizabethan Inns of Court articulated a particular constitutional relationship between governor and governed, the basis of which was the classical concept of justitia, or right relations between men. The idea that the common law predated the memory of man and that the legitimacy of the Ancient Constitution was guaranteed by the usage of ancient, English custom was fictive. The theory of constitutional provenance expounded by jurists of the Elizabethan and Jacobean periods accredits mythical (and notably foreign) archetypes such as Brutus and Solon with the foundation of English law. Apart from demonstrating the importance of iconic archetypes of national unity to the foundation of the body politic, this accreditation betrays the tacit acceptance by common lawyers of the classical and continental origins of English law. The relevance of these origins to constitutional theory is their foundations in the city-states of the ancient world, and the nature of the civic freedoms and obligations that such provenance implies, in particular the relationship between citizens and between subject and ruler. The constitutional model proposed by Hooker in Of the Laws of Ecclesiastical Polity broadly suggests that the English legal system embodied a code of tradition, manners or honour. This model finds its classical equivalent and original in The Republic of Plato, in which justitia referred to the ideal goodness of society and not exclusively to the application of formal law. Of seminal influence also was The Politics of Aristotle, in particular its suggestion that the bonds of friendship between citizens provided the essential basis for the ideal polis.6
In the course of the sixteenth century the English nation-state gradually supplanted the medieval, feudal model of government. Implicit in the former model was an unprecedented, reciprocal system of governance in which individuals were guaranteed the benefits of subject status in return for the relinquishment of their natural rights and their willing submission to the legitimate authority of a sovereign power. In other words, this period in English history witnessed the transition from a society that was determined and delineated by status to one in which contract was the defining factor of societal relations.7 The resurgence and reinterpretation of classical texts, and their sudden availability due to the innovative printing processes, provided the intellectual impetus for the creation of the model polis, reinvented by Hooker as a religious commonwealth. As self-regulating, independent communities of the law, the Inns of Court were the ideal (and probably the only) institution through which the representation of this commonwealth could be manifested. Through the exercise of their executive and legislative powers, the governing bodies of the four Inns regulated the symbols of their communities in order that the images of the legal institution could give form and substance to the invisible principles of governance and legitimate rule. The visibility of the symbolic order of law and the real presence of power suggested by the image were crucial developments in the perception of the early modern legal profession as an embodiment of political, ethical and moral sovereignty. The details of quotidian existence at the Inns were regulated to present an emblem of community that could usefully serve as a template for the larger community of the nation.8
Although I refer extensively to two seminal texts by Sir John Fortescue, De Laudibus Legum Angliae and The Governance of England, and occasionally to relevant aspects of Henrician, Marian and Edwardian rule, my substantive analysis of the English legal profession concentrates on the period between the accession of Elizabeth I and the Restoration of the monarchy in 1660. Fortescue was significant both for articulating the constitutional theory of mixed monarchy and for placing the English legal profession in its ethical context as the guardian of common law rights and the arbiter of disputes between magistrate and subject. But the idea that the Inns of Court represented an ideal commonwealth of responsible citizens, in which the governance of the state could be enacted in microcosm, only attained its physical manifestation during the period of architectural, cultural and institutional expansion in the reign of Elizabeth I.9
The political relevance of the intellectual arguments for a constitutional monarchy (made variously by Fortescue, St German and Hooker) became apparent during the last decade of Elizabethan rule and throughout the reign of James I. Increased emphasis by the monarch on the constitutional primacy of the divine right of kings threatened to destroy the social contract between magistrate and subject. The political necessity to restrict the personal power of the monarch in the interests of individual liberty became a matter of urgent practical significance during the reign of Charles I, in relation to his excessive and unlawful use of the royal prerogative. In the latter part of the book I consider the veracity of claims by common lawyer MPs that they sought a constitutional settlement, the effect of which would entrench the political sovereignty of common law and abolish absolute monarchy and the conditions under which absolutism could flourish. Pursuant to this analysis, I examine the body politic of the English republic, and consider its resemblance to the ideal constitutions for which the Inns of Court had legislated. As Plato remarked in The Republic, every political system derives, however slightly, from a Utopian ideal.
My approach is thematic rather than strictly chronological, although within this stylistic framework I outline the development of the legal profession and the English constitution from 1558 to 1660. Chapter 1 traces the emergence of a secular legal profession from its ecclesiastical origins in the monastic orders. In particular I examine the oral traditions of common law. The centrality of oratory and narrative to the English legal system was crucial in determining the form of legal practice. The spirituality of common law and common lawyers was expressed unequivocally through the act of communal dining at the Inns of Court. This practice was inherited from the monasteries, in whose refectories the Word of God was symbolically eaten at dinner and spoken during the readings. The effect of the printing revolution and the increased textualisation of English law and law reporting was not so much to create an empirical, rational legal system as to initiate the evolution of legal hermeneutics: the emergence of the lawyer as author, critic and poet.
In chapter 2 I consider those public manifestations of the legal institution that collectively comprise the corpus of law. In this analysis of the semiotics of legal architecture, the buildings of the Inns are perceived as eclectic symbols of an ethical rather than a legalistic code. This unwritten law, or lex terrae, derives from classical principles but corresponds to the imperatives of a Christian nation-state of the Renaissance period.10 The religious commonwealth described by Hooker in Of the Laws of Ecclesiastical Polity is given permanence and visibility in the physical structure of the Inns.11 Throughout this chapter, the theme of the genealogy of law predominates: only these images of 'perfect blood'12 guarantee the legitimacy of the constitution. I attempt to construe from these architectural icons the content of the unwritten constitution, just as rights and obligations can be construed from a written document.
Chapter 3 examines the depictions of a Utopian state, envisaged during the annual, seasonal festivities known as the revels. During the course of these elaborate and extravagant entertainments, the patriarchs of the Inns of Court ceded their governing authority to junior members. The theatricality of the ensuing enactment of governance and the decision of the revellers to present a parody of the hierarchic structure of English society does not detract from the didactic function of the revels. Their social relevance was to imply that in the interests of the community or commonwealth, law acts as a repressive force upon the primitive desires of the individual. The artifice of political order and the foundation of utility can be identified clearly as central themes of the revels.13 Through an examination of two of the revels of the Inns of Court, in 1561 and 1594, I analyse the response of the legal profession to constitutional developments at the start and during the last decade of Elizabethan rule. I characterise the revels as the search for a new Utopia: a landscape that is simultaneously real and imaginary, in which the common law aspires to create the necessary political, social and spiritual conditions for the realisation of the ideal state.14
In chapter 4 I examine the representation of law in theatre and the utility of the visual and dramatic image in facilitating the comprehension of invisible concepts such as governmentality, rationality and divine law. I analyse various dramatic entertainments presented at the Inns of Court during the Elizabethan and Jacobean periods, and their status as legal texts that embody the content of the Ancient Constitution. The didactic function of the masques was to facilitate the visible expression of the poetics of law, in which human reason interacts with nature to create an ordered and perceptible realm, governed by the equitable judgments of common law. The chapter concludes with an analysis of the image of law, both as icon and idol. The doctrinal distinction indicates the importance of the particular form of the sign, both to the legitimacy of the legal institution and to the acceptance of common law as the human manifestation of divine law.
Chapter 5 assesses the constitutional status of the individual in the early modern state, within the context of sumptuary legislation enacted by the crown and the governing bodies of the Inns of Court. The crown demonstrated its respect for the independence and autonomous status of the Inns of Court by exempting them from any of the strictures of sixteenth-century sumptuary legislation. The governing bodies of the Inns responded to this freedom by manipulating the image of the lawyer to represent the inherent divinity of common law. The synthesis of classical and Christian values and their impact on the development of an ethical relationship between subject and governor demonstrates the importance of the Renaissance as a force for political change. The regulation of the image at the Inns of Court was effective in ensuring that the legal profession was perceived as a secular priesthood, whose appearance exactly reflected its spiritual role.
In chapter 6 I consider the gradual erosion of the autonomous power of the Inns, as the personal rule of Charles I encroached upon their traditional independence. Through the vociferous character of the common lawyer William Prynne, I explore the reaction of the legal profession to the increased isolation and idolatry of the royal court. For Prynne (and many other lawyers) the decadence of the Caroline court reflected the intrinsic corruption and decay of absolute government. The venality of the Inns of Court was symbolised by the extravagant masque jointly performed by their members in honour of the king and queen, The Triumph of Peace. This was a vacuous entertainment, intended primarily to ingratiate the Inns with their sovereign master. As the legal institution continued to compromise its independence by compliance with the edicts of the king, the voice of libertarian dissent shifted perceptibly from the Inns of Court to Parliament. From this public forum, the unprecedented number of lawyer MPs provided the only effective opposition to the arbitrary acts of the king. With the dissolution of Parliament in 1629 and the debilitating effect on the legal institution of the civil war, the printed pamphlet attained unprecedented significance as the means through which articulate opposition was expressed. The latter part of this chapter considers the ascendancy of the pamphlet, with particular reference to the use of literary tropes as a means of expressing common law principles of freedom and justice.
Finally, in chapter 7 I address the extent to which the English republic adopted the Aristotelian model of government provided by the humanist commonwealths of the legal community. Despite increasing numbers of admissions during the years of the Protectorate, the political influence of the Inns declined throughout the Interregnum as their cultural activities were proscribed and their oral learning exercises fell into disuse. In the history of constitutional jurisprudence, this period signals the ascendancy of legal positivism and the irrelevance of natural law to the strong government of the state by a de facto ruler. The claims to liberty, equity and conscience made by the Levellers resembled those made previously by Coke. Their pleas were ignored and the movement crushed by a régime intent on the suppression of dissent and anarchy. The pervasive influence of constitutional libertarianism was demonstrated by attempts to balance the power of the sovereign with the liberty of the individual: the Instrument of Government and the Humble Petition and Advice both reflected common law principles of restricted sovereignty. But the pragmatic government of arms, proposed by Machiavelli in The Prince and supported by Harrington in Oceana, was incompatible with the ethereal constructs of the Ancient Constitution. The appeal of this fictive charter to immemorial custom was fatally at odds with a political climate in which equity and justice were not recognised as formal law, but (as Hobbes suggested) were mere qualities disposing subjects towards peace and obedience.15
Eating, learning and revering the law: oral traditions and the religious inheritance
COMMONS AND THE DISCIPLES OF COMMON LAW
. . . we, who are the Ministerial Officers, who sit and preside in the Courts of Justice, are therefore not improperly called; Sacerdotes (Priests): The import of the Latin Word (Sacerdos) being one who gives or teaches Holy Things.1
The suggestion that the primary purpose of the judiciary was to fulfil a sacerdotal role represents a pervasive opinion in the early modern English legal profession that jurisprudence was a form of theology, the meaning of which could be expounded only by common lawyers. It is not coincidental that, as the jurisdiction of common law encroached upon areas previously administered by the ecclesiastical courts, common lawyers should seek to establish the unimpeachable probity of their profession. After the Henrician ban on the teaching of canon law in England and the statutory recognition in 1532 of the professional status of barristers, it became incumbent upon the Inns of Court to shape the development of the legal profession along the religious lines originally suggested by Fortescue. Although the Inns were founded for pragmatic reasons, allowing lawyers to gather as a corporate body and providing easy access to the courts of justice, during the sixteenth century the regulation of members in accordance with strict religious principles became their primary symbolic role. Commons developed from its simple dietary function to become a potent symbol not only of the oral basis to the common law tradition, but also of the religious commonwealth of lawyers. From the diurnal rites of the legal community emerged the prototype of an ideal society, governed by the perfect reason of common law, inspired by divine law and articulated by common lawyers. Communion rites were enacted during commons, at which senior and junior members shared a mandatory, frugal meal. In iconic fashion (as at the supper at Emmaus), the bonds of a religious community were enforced and strengthened through the communal act of dining. The Word was made flesh and eaten, reflecting the oral tradition of the English legal system.2 Dining embodied the immemorial custom of common law; food (and the strict regulations governing its consumption) became its physical expression. In hall the past was honoured and evoked by the food offered, representing that which otherwise would not be present.3
The derivation of commons from the refectories and oratories of the monasteries, and the strict rules governing the ascetic nature of the quotidian dining regime, represented the coalescence of common law principles and sacrament-based Anglicanism. Implicit in the rules of the Benedictine Order is the correlation between the will of God, the spoken word and the law. Of particular importance to the institutional communities of monks and common lawyers was the Christian injunction against pride, a recurring theme in the sumptuary laws of the Inns of Court, with regard both to sartorial and alimentary regulation. The Benedictine monk is enjoined to 'ask all to pray for him, that God may keep him from the spirit of pride'.4 Stripped of the decadent and idolatrous excesses popularly associated with Rome and the pre-Reformation monasteries, the arcane rituals of the early modern legal profession were suggestive of a unique English Catholicism and strongly imply the centrality of this ethnocentric faith to the governance of the religious commonwealth of England. Significant also to an analysis of the oral traditions of English law and their religious affiliations is the fact that the educational exercises of the Inns took place in the sacred precinct of hall, usually as an adjunct to the rituals of dining. That common law was considered by the legal profession to be the Word of God can be construed from the fact that educational exercises were originally practised in the place of worship. A Council of Lincoln's Inn, held on 13 May 1623, records that moots were held in the old chapel prior to the consecration of the new chapel in 1623. Council 'ordered that the said exercise shall not hereafter be used in that Chappell, nor in the new Chappell; and that from henceforth the Barristers that shall sitt att the said exercises shall sitt at the Barr table on the Bench side in the Hall'.5 The resemblance to the Rule of the Order of Saint Benedict is notable: '[r]eading must not be wanting while the brethren eat at table . . . let this verse be said thrice in the Oratory, he himself beginning it: "Domine, labia mea aperies, et os meum annuntiabit laudem tuam". [O Lord, Thou shalt open my lips, and my mouth shall declare Thy praise].'6 The nourishment of body and soul was perceived as coextensive, and it is noteworthy that reference is made to the opening of the lips, in order that the law may be spoken and eaten.
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