Agricultural History Review, Volume 59 Part 1 (2011), p. 132

Chris Brooks’s book is one to read slowly and savour over a long period. His mission is to explain the role that the law played in early modern society. This brief allows him to look not only at issues of politics and administration, but also the legal writing and education and, a question which interests him greatly, how far legal principles were understood within early modern society. He also writes about how people used the law and how far legal institutions impinged on their lives.

The book effectively falls into two parts. In the first, Brooks adopts a chronological approach which builds to the denouement of 1641 – in which many of the legal disputes of the previous half century, and in particular the innovations of the previous 15 years – were conclusively resolved by statute. Brooks’s success is in showing that there is, in a legal sense, a high road to the civil war. In 1640–1 we can see the Elizabethan legal mind reasserting itself and seizing the opportunity given it by the Scots to resolve some issues once and for all. In the course of this he gives us a fuller exposition of the ‘common-law mind’ than we have had before, drawing a great deal of his material from what might be called ‘grey literature’: readings at the Inns of Court, assize sermons and charges at the assizes and quarter sessions – to give us a much clearer sense of what legal ideas circulated and where. From all of this, it becomes clear that there was never a single legal mind, but persisting questions about a variety of issues, including the power of the crown. Brooks is good on the debates around monarchical power, and he confirms the existence of a ‘republican’ streak in Elizabethan legal and political thought or, as he puts it, a ‘mixed monarchical interpretation of the English constitution’ (p.81). Sir Edward Coke, in particular, comes across as a man after his time, fighting a rearguard action against Thomas Lord Ellesmere and others whose view of the prerogative James I found more congenial. Brooks also shows how some of Ellesmere’s clients held pretty absolutist ideas. This leads to the thought that in the law, as in religion, the late 1580s and the 1590s were as formative a decade as the late 1540s had been for the Elizabethan generation. Where the Elizabethans saw 1549 and recoiled from inflaming the commons, some of the generation who lived through the Presbyterian campaigns and the furore provoked by Martin Marprelate spent the remainder of their lives suspecting popularity and detecting incipient democracy in all quarters. (Lord Chancellor Ellesmere suspected Coke of popularist tendencies, and he was almost certainly right.)

The second half of the book changes tack. It focuses on a variety of areas in which the law can be seen in operation. Several of these are required reading for early modern rural historians including the helpful discussions of copyhold, employment and family law, debt and credit, and the legal dynamics of local communities. There is some extraordinary material on the scale of imprisonment for debt before the civil war (of which I hope someone will give us a fuller exposition): each reader will find their own cherry. I differ from Brooks on some points here, perhaps approaching these issues from another perspective. I think he fails to appreciate (following the work that Henry French and I did on Earl’s Colne) just how far there is a rejection by ordinary people of the seigneurial claims implicit in the exercise of the manorial court. Moreover, John Broad has shown how some lords might be reluctant to convene courts given that they represented a potential source of opposition (and were certainly the locus of custom) to their estate policies. Conversely one would like to know more about the larger ‘world view’ of those lords who continued to try and make their courts work right through to 1640. The accounts of judicial attitudes to corporation are helpful, but incorporation, I am relieved to say, barely features, which leaves me space to offer my views on this elsewhere. Occasionally the text wanders, and I thought that Brooks’s discussion of the ‘problem of the over-mighty’ rather lost its way and did not offer the firm conclusion that an undergraduate reader might hope for.

There were also a couple of areas I felt Brooks downplayed if only by omission. One is Star Chamber, about which there are some very interesting comments concerning its role as a check on public officials in the seventeenth century, but there is perhaps less on its place as the vehicle through which administrative policy could be enforced. Of course, we need a good modern account of Star Chamber. The other is arbitration, an area of great interest to historians perhaps thirty years ago, but not one which raises any legal principles, and which warrants only three page references in the index. Yet arbitration is pretty ubiquitous in early modern society and deserves its place in any account of how the law was used. Arbiters are often lawyers. Much litigation ended in with an extra-curial settlement and it is possible to see much of the work of Chancery as being arbitration.

I am a little sceptical too when Brooks says that ‘it is very difficult to find any evidence at any point during this period of a distinctively “folk justice” that existed outside one kind of local jurisdiction or another’ (p.424). Difficult, but not impossible, and I think that there are hints from 1549 of alternative systems of justice, both in the sense of short-lived tribunals, but also in the justice administered by the earl of Arundel, both perhaps offering a different balance of equity in which greater weight was given to the needs of the small man, the manorial tenant, and less to the manorial lord. Something of this sort can also be seen in the petitions of 1549 and Norfolk petition of 1553, and the same ideas underpin much equitable litigation in which custom is made to support claims of a distinctively peasant equity. The comments of Archbishop Richard Bancroft in 1609, quoted on p. 117, are very interesting here, suggesting as they do that jury trials at the common law were easier for the gentry to manipulate in their favour so that the poor were disadvantaged in enclosure disputes. A forthcoming paper of mine on the protracted disputes in Taverner v. Cromwell from north Norfolk in the third quarter of the sixteenth century shows all too plainly how both parties believed that a jury of yeomen would find differently to a jury of gentry on the same facts. Now this may not amount to ‘folk justice’, but I think we should keep open the possibility that there were voices within the countryside that regarded the common law as the (manorial) lord’s law.

Law, politics and society is underpinned by an enormous range of reading, not only from the printed materials, but also a mass of unpublished literature from both sides of the Atlantic. One of the key sources that Brooks draws on are the charges given at assizes and quarter sessions by judges or magistrates and he shows compellingly how these articulate not only current preoccupations but also the essentials of the law and legal thinking. Brooks is interested in how far legal understanding permeated English society. I would say a long way. Recall, for instance, the doubts expressed when the levying of the Forced Loan was announced in 1626: the legal principles at stake were widely recognised and understood. Now we have this book, we can appreciate that charges were a form of legal as well as political education. The sources he does not consider are the printed sermons contained in the Book of Homilies, some of which might usefully be seen as contributing to a popular legal consciousness.

Brooks has a good eye for a telling anecdote from the law reports, the lectures given at the inns of courts and the charges. Sometimes he précises at length, but all too often one is left wanting to reach for the manuscript to read the text for oneself. Hence, to give an example from late in the book, one would like to know more of Francis Ashley’s readings on Chapter 29 of Magna Carta given in 1616. It is a matter of Utopian regret that there is no companion volume giving some of the unknown but key texts which remain in manuscript (and law French too): such a volume would be both enlightening and also useful for teaching.

Readers should not allow themselves to be put off by the title. History students tend to run away from the law – the idea that society has abstract principles underpinning it does not appeal to those who read politics in terms of private advantage. In fact they will greatly profit from the book’s clear exposition of some of the legal flashpoints of the period – the ex-officio oath, the disputes over the relation of common law to equity and ship money. The book takes its considerable learning lightly and reads supremely well. I suspect – indeed I hope – that in five years it will be seen as a deeply influential work.