Early modern legal violence: for the common good?

In a 1628 sermon preached before the Assize court at Oxford, Robert Harris reminds the “Sheriffes, Iustices, [and] Iudges” that they have taken “an oath for the common good.” He reminds them that they work for the people, not for power: they are to “plucke the spoile out of the teeth of the mighty” “and to bestride [their] poore brother, when hee is stricken downe.”

But even the most cursory Hamnet searches of “justice” reveal the law’s violence against the poor, in particular. Property crime and even begging were disproportionately punished with stocking, naked whipping, dismemberment, scourging, imprisonment, hanging, and other public shame-and-pain punishments. Legal historians call the Elizabethan and early Stuart era “the bloodiest period in English criminal law.”¹ Stocks, whipping posts, and pillories—like those pictured below from Stratford-upon-Avon—were visual reminders of the law’s violence.

The stocks at Stratford, John Thomas Blight, 1864 (Folger ART Vol. d75 no.19b)

In June, I spent an awe-filled month reading the Folger Shakespeare Library’s rare materials on legal violence. I had already traced early modern case law and how it was encoded in literature by authors like Shakespeare, Milton, Herbert, and Cavendish, but the Folger’s rare materials allowed me to see underneath, behind, and alongside the black letter law. I observed how the law’s violence was honored in the breach and on the streets. Reading family papers, letters, manuscript assize sermons, Justices’ marginalia and case notes, I grew to understand early modern anxieties about the power of juries to mitigate law, the way Justices of the Peace modified sentencing rubrics, and how people informed others about punishments in their private correspondence.

In this post, I’ll focus on two sets of materials that enriched my understanding of early modern legal violence: notebooks and marginalia by Justices of the Peace and personal correspondence about jury nullification.

Justices’ Notebooks and Marginalia

A small, well-worn 1539 Boke for a Justice of Peace guides lower court justices on statutes concerning “newe fangled news,” “unlawful games,” “excesse in apparayle,” and how to punish “vacabundes, stronge beggars, and impotent personnes.” Vagabonds seem to have been of particular concern. “In al places through out this realme of Englande,” the book warns its justices, “vacabundes and beggars have of long tyme increased” committing “heinous offences” to the “hyghe displeasure of God” and the “inquietation and damage of the kynges people.” Punishing the vagabonds warrants many pages of direction, ranging from imprisonment and stocking to stripping and public whipping.

Boke of Justices of Peace with marginalia, 1539 (Folger STC 14876)

As seen in the image above, the Folger’s copy is heavily annotated, providing a rare glimpse into an early-sixteenth-century Justice’s actual practice of reading the law. It was not a passive activity. The Justices seemed to have viewed the statutes less as a determined sentencing rubric and more as a conversation; one annotator, for example, marked every passage in which the statutes indicated that the extent of whipping was at the discretion of the Justice of the Peace, and emphasized his flexible power in the margin:

Boke for a Justice of Peace, annotated, 1539 (Folger STC 14876)

the Impo //
tent beggar //
to be //
whippd //
or Stokked //
by the //
discrecyon //
of the Iustic //
or highe //
Constable²

I read the statutes differently after seeing the Justices’ marginalia – they reveal an interpretive flexibility with which court officers read the law.

Nearly a hundred years later, in his copy of a 1641 portable sentencing guide, a vade mecum (which still retains one working metal clasp), Justice Thomas Birch even changed the ascribed punishments in several places. For example, he drew a line through the jail sentence for those “such as hawk between the first of July and last of August,” reducing “commitment three moneths” to “one moneth.” In other places, Birch intensified punishment—in a statute against unwed pregnancy, he drew a manicule and annotated that the jail commitment will be “without baile.” Apparently, he consulted the zodiac chart along with the sentencing guide, affixing charts to the front and back of the book.

A Manuell, or A Justice of Peace his Vade-Mecum, 1641 (Folger V.a.395). Left: title page with Thomas Birch’s name. Right: Justice Birch reduced a prison sentence from three months to one month.

A Manuell, or A Justice of Peace his Vade-Mecum, 1641 (Folger V.a.395). Left: Justice Birch drew manicule and added “without baile” to a jail sentence. Right: 1650 zodiac chart adhered to inside cover.

The Folger also has a hand-written and self-bound 1587 paper notebook with 63 pages of commentary, penalties, and case lists kept by a Justice of the Peace in Horncastle, Lincolnshire. It reveals a pervasive concern about willful and corrupt juries, one of the most significant ways that the English people resisted legal violence.

Manuscript legal notebook, ca. 1581-ca. 1593 (Folger V.a.485). Left: cover. Right: open.

Manuscript legal notebook, ca. 1581-ca. 1593, “Jurors Taking Rewards” in section with treason and murder punishments (Folger V.a.485)

Jury Nullification: “A True English Conscience Is of More Solid Stuff”

Anne Broughton wrote to her father “in hast” one Thursday night in 1580, “being drowyse” and mindful of her daughter’s need for attention (L.a.222). She writes about the spices, silk, and pakethread she is sending, but more than half the letter details her concerns about recent jury nullification, including a jury that the bench sent back repeatedly “to be better advised” after they acquitted the defendant. She then recounts a jury that was punished by the Star Chamber that same day:

this day a Iurie of gloucester went on
procession twise aboutes westminster hall being marshalled with trpstaves
with goodlie paper hatbandes for acquiting a prisoner at gloucester
that had killed on medlicot mr Atkinsons man in gloucester at
the assises tyme by iudgment in the starre chamber.

Letter from Anne (Bagot) Broughton to Richard Bagot with concerns about jury nullification (Folger L.a.222)

Richard Crompton, in L’authoritie et Jurisdiction des Courts, apparently also viewed the same jury’s punishment procession:

Eleven of a Jury… did acquite one Hodye of Felony before Sir Roger Manwood Chiefe Baron in his Circuit in Somersetshire against apparent evidence: they were fined in Star-chamber, and did weare papers in Westminster hall, circa 22.Eliz. the which my selfe-saw.

Likely the jury believed that Hodye killed “Atkinsons man” in self-defense and that manslaughter was a more just verdict than murder. Eleven of the jury were thus sent to the Star Chamber, convicted of perjury, fined, and forced to march in a public shame, being marshaled by the court bailiffs (tipstaffs) while wearing paper hats (“goodlie paper hatbandes”) that read “for willful perjury.” If convicted of jury nullification or “pious perjury,” jurists could be whipped, pilloried, fined, have their ears cut off, be imprisoned, or “sometimes by more of these punishments joined together.”

The jury’s verdict in the face of such punishments gives insight into what they were willing to do to push back against the law’s violence, and legal historians have even doubted whether parading jury nullifiers was in fact enacted: “And what of the wearing of papers? Was this seriously carried out?” asks Charles Hamilton.³ Anne Broughton’s letter reveals that it was not only carried out, but it was also seen, feared, and discussed in private correspondence.⁴

Juries were kept without meat, drink, fire, or tobacco until they reached a verdict, and they were threatened with an array of public punishments for voting according to their conscience, but William Walwin in Juries Justified argues that “a true English conscience is of more solid stuff, and will endure every one of these, yea death it self, rather then be so base and unworthy [as to vote against conscience].”

Letter from Anne (Bagot) Broughton to Richard Bagot, closing signature (Folger L.a.222)

The complexity of the law’s violence—as revealed in Folger’s rare materials—mirrors our continuing debates four hundred years later about the death penalty, mass incarceration, police violence, and torture: How violent must the law be to control extralegal violence? Does the law’s violence uphold or undermine the common good? How did the sixteenth and seventeenth centuries reconcile the law’s violence with its ethical promises of justice and peace? The men I teach at Phillips State Prison and the women I teach at Whitworth Women’s Prison convince me that these questions must be asked. Tracing legal violence through history also contextualizes our own oppression to the law’s violence, as well as our ability to resist it.

I write this post not in the timeless, cloistered Folger reading room, but in Atlanta, Georgia: capital to a state with an incarceration rate 31% higher than the national average.⁵ My home state of Georgia lethally injected nine people in 2016, more than any other U.S. state, and in the twelve previous months, from December 9, 2014 to December 9, 2015, Georgia executed six people, including a Vietnam combat veteran and two men with intellectual disabilities.⁶ As the Duke says in Measure for Measure, we have “most biting laws.”⁷ The Folger materials deepened my understanding of the way that the law exists both as a state-centered discourse and as a culturally appropriated force, subject to multiple interpretations and challenges.

If my research area seems depressing, reading early modern torture accounts was tempered by the Folger’s radical hospitality among both the research staff and other Fellows. I look forward to returning in December for Heather Wolfe’s Paleography course, because of the many things that I learned at the Folger, one was that I overrated my ability to read secretary hand. My special thanks to Sarah Powell for expert paleography help, to Chris Barrett for her friendship and mutual laughter about misreading “daggers of justice,” to Camille Seerattan for her generous support of the incarcerated Shakespeare students, to Dave Harper for the Pentagon tour, and to Toby, Melanie, and Patrick Gregory for their hospitality. Tea breaks, lunches, and dinners were more than collegially supportive; they were full of wonder, intellectual support, and fun—all because of the community that the Folger brings together.