Hostname: page-component-7c8c6479df-27gpq Total loading time: 0 Render date: 2024-03-27T12:45:27.047Z Has data issue: false hasContentIssue false

The culture of reconciliation: community and the settlement of economic disputes in early modern England*

Published online by Cambridge University Press:  11 February 2009

Craig Muldrew
Affiliation:
University of Cambridge
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The period from 1550 to 1640 saw a tremendous rise in the amount of litigation initiated in England. Although the pattern of this great expansion is known, its social meaning is not yet clear. Litigation has, paradoxically, been interpreted as both the barometer of a breakdown in social relations, or alternatively as a functional means of dispute settlement. Here this problem will be addressed by placing the initiation of litigation within the context of the social practices and events which led to disputes, and also by looking at how contemporaries reacted to, and interpreted these events, both publicly and privately. Most litigation arose out of economic disputes concerning credit and contracts, and this was a result of the growth of marketing in the period. Such disputes were seen as threatening to the social order, and were something which contemporaries took very seriously. The primary means of dealing with disputes was to attempt to initiate a community negotiated Christian reconciliation between the disputing parties in order to maintain social peace and concord. But as the market grew more complex, and disputes became more difficult to resolve, increasingly the authority of the law had to be invoked. This in turn led to the development of a more pessimistic language of social relations which stressed that any form of positive sociability could only be maintained under an institutional umbrella created by the threat of authority. As a result, community relations and reconciliation, although still defined in terms of Christian love and charity, came to be seen as more functional than normative because of the massive interjection of the civil law into day to day life.

Type
Articles
Copyright
Copyright © Cambridge University Press 1996

References

1 The estimate of central court litigation is taken from Brooks, C. W., Pettyfoggers and vipers of the commonwealth; the lower branch of the legal profession in early modem England (Cambridge, 1986), pp. 4951, 56–7, 305 n. 21Google Scholar. The estimates of local litigation are based on counts of the number of suits initiated in various courts for a number of sample years. In towns yearly levels of litigation were simply compared to the household population of each town in question (after subtracting suits by individuals from outside of town), and an average ratio of 2·6 suits per urban household was established, which when multiplied by a rough estimate of the population of towns in the early seventeenth century comes out to 410,526. In King's Lynn and Bristol, for instance, an average of 2,000 and 4,000 suits respectively were brought before their civil courts each year in the early seventeenth century. The figure for local rural litigation is based on calculations made for the wapentake of Langbaugh in north Yorkshire in the mid-seventeenth century, which indicate an average rate of litigation of 0·7 suits per household per year, and this has been checked with other jurisdictions and multiplied by an estimated rural population in the early seventeenth century calculated at 87 per cent of four million people. These estimates will be discussed at greater length in my forthcoming monograph, The economy of obligation. Craig, Muldrew, ‘Credit and the courts: debt litigation in a seventeenth-century urban community’, Economic History Review, XLVI, 1 (1993), 23–8Google Scholar. Norfolk Record Office: Norwich City Records, Shelf 8b Box #3, Yarmouth Corporation, Court Books, C5/75; Bristol Archives Office, Z27/04457, 04458, 14459 (1–4), Z37/04756–70, 04429; North Yorkshire Record Office, ZDU 154; Public Record Office, E.179 215/451, 216/461; Brooks, C. W., ‘Interpersonal conflict and social tension: civil litigation in England, 1640–1830’, in Beier, A. L., David, Cannadine, AND Rosenheim, J. M. (eds.) The first modem society (Cambridge, 1989), pp. 360–7, 372–4Google Scholar. Martin, Weinbaum, British borough charters 1307–1660 (Cambridge, 1943)Google Scholar. Jones, W. J., ‘Palatinate performance in the seventeenth century’, in Peter, Clark, Smith, A. G. R. and Nicholas, Tyacke (eds.), The English commonwealth, 1547–1640 (Leicester, 1979), pp. 189204Google Scholar. Population estimates were taken from Wrigley, E. A., People, cities and wealth (Oxford, 1987), pp. 157–67Google Scholar, and Wrigley, E. A. and Schofield, R. S., The population history of England 1541–1871 (Cambridge, 1989), pp. 531–2Google Scholar. The estimate of average household size used here is 4·75 taken from Peter, Laslett, ‘Mean household size in England since the sixteenth century’, in Laslett, and Wall, R. (eds.), Household and family in past time (Cambridge, 1972), pp. 125–58.Google Scholar

2 Such complaints were voiced by the mayor of London in the 1570s. Steve, Rappaport, Worlds within worlds: structures of life in sixteenth-century London (Cambridge, 1989), p. 212Google Scholar; Brooks, , Pettyfoggers, pp. 108–11.Google Scholar

3 SirDavies, John, Le primer report (London, 1650)Google Scholar, reprinted in Wootton, D. (ed.), Divine right and democracy (Harmondsworth, 1986), pp. 137–8Google Scholar. Richard Gough similarly chided one of the members of his parish for being ‘a litigiouse person amoung his neighbours much given to the law’, Richard, Gough, The history of Myddle, Hey, D. (ed.) (Harmondsworth, 1981), p. 245Google Scholar. Jones, W. J., Politics and the bench: the judges and the origins ofthe English Civil War (London, 1971), pp. 35–6.Google Scholar

4 Barnes, T. G., ‘Due process and slow process in the late Elizabethan–early Stuart Star Chamber’, American Journal of Legal History, VI (1962), 222, 226–32, 243–9, 337–40Google Scholar; Barnes, T., ‘Star Chamber litigants and their counsel, 1596–1641’, in Baker, J. H. (ed.), Legal records and the historian (London, 1978), pp. 728Google Scholar; Jones, W. J., The Elizabethan court of chancery (Oxford, 1967), pp. 1719, 177, 196–9, 147–8, 317, 498Google Scholar. Many of the rules of equity were designed to determine rights based on the circumstances of each case, and thus avoid the potential injustice of hard and fast rules. But this actually led many people to make claims which then could only be resolved by litigation. Yale, D. C. E. (ed.), Lord Nottingham's Chancery cases, Selden Society, LXXIII, LXXIX (1957), I, xxxvii-cxxiv, II, 7207.Google Scholar

5 Stone, for instance, has argued that litigation was the consequence of a breakdown in community methods of dealing with conflict. Lawrence, Stone, ‘Interpersonal violence in English society 1300–1800’, Past and Present, CI (1983), 2832Google Scholar. Conrad Russell has stated that by the early seventeenth century, ‘many people were using malicious law suits as a means of vexing an enemy’. Russell, , The crisis of parliaments: English history 1509–1660 (Oxford, 1971), p. 173Google Scholar. For similar views see: Stone, , The crisis of the aristocracy 1558–1641 (Oxford, 1965), pp. 240–2Google Scholar; Thomas, Barnes, ‘Due process and slow process’, p. 337Google Scholar; Joyce, Youings, Sixteenth-century England (Harmondsworth, 1984), p. 225Google Scholar; Cynthia, Herrup, ‘Law and morality in seventeenth-century England’, Past and Present, CVI (1985), 110.Google Scholar

6 Sharpe, J. A., ‘“Such disagreement betwyx neighbours”: litigation and human relations in early modern England’, in John, Bossy (ed.), Disputes and settlements: law and human relations in the West (Cambridge, 1983), pp. 167–87Google Scholar; Sharpe, , ‘The people and the law’, in Barry, Reay (ed.), Popular culture in seventeenth-century England (London, 1985), pp. 246, 253–4Google Scholar. Ingram, , ‘Communities and courts: law and disorder in early seventeenth-century Wiltshire’, in Cockburn, J. S. (ed.), Crime in England 1550–1800 (London, 1977), pp. 119–21, 125–7Google Scholar. It should also be noted that Star Chamber and Chancery, where most vexatious litigation was carried out, only heard about 300 and 3,000 suits respectively a year; Jones, , Chancery, pp. 271–3Google Scholar. Sharpe has criticized Stone in a reply to the latter's ‘Interpersonal violence’ article. However, in neither Stone's original article, nor Sharpe's reply was a clear distinction made between conflict and violence. Sharpe, J. A., ‘The history of violence in England: some observations’, Past and Present, CVIII (1985), pp. 207–15Google Scholar. Here, I wish to make clear that I only want to deal with interpersonal conflict. This could lead to violence, but in most cases did not.

7 Simon, Roberts, ‘The study of dispute: anthropological perspectives’, in Bossy, (ed.), Disputes and settlementsGoogle Scholar; Roberts, S., Order and dispute; An introduction to legal anthropology (Oxford, 1979), pp. 3044, 4653Google Scholar; Max, Gluckman, Politics, law and ritual in tribal society (Chicago, 1965), pp. 169215Google Scholar; Peter, Stein, Legal institutions: the development of dispute settlements (London, 1984).Google Scholar

8 The relationship of such local or neighbourly means of maintaining order to the ‘law’ as enforced by the courts, is now studied by anthropologists and lawyers under the rubric of ‘legal pluralism’. Comoroff, John L. and Simon, Roberts, Rules and processes: the cultural logic of dispute settlement in an African context (Chicago, 1981), pp. 512Google Scholar; Dworkin, R., ‘Social rules and legal theory’, Yale Law Journal, LXXXI (1972), 855–90CrossRefGoogle Scholar; Merry, Sally Engle, ‘Legal pluralism’, Law and Society Review, XXII, 5 (1988), 869–96CrossRefGoogle Scholar; Barbara, Yngvesson, ‘Inventing law in local settings: rethinking popular legal culture’, Yale Law Journal, XCXIII (1989), 16891709Google Scholar; Arthurs, H. W., Without the law: administrative justice and legal pluralism in nineteenth century England (Toronto, 1985), pp. 112.Google Scholar

9 Brooks, , Pettyfoggers, p. 111.Google Scholar

10 Keith Wrightson and Anthony Fletcher have looked at some of the informal means by which villagers sought to control violence, and have compared these methods with more official efforts by constables and justices. Keith, Wrightson, ‘Two concepts of order: justices, constables and jurymen in seventeenth-century England’, in John, Brewer and John, Styles (eds.) An ungovernable people: The English and their law in the seventeenth and eighteenth centuries (New Brunswick, N.J., 1980), pp. 2146Google Scholar; Anthony, Fletcher, Reform in the provinces: the government of Stuart England (New Haven and London, 1986), pp. 6683.Google Scholar

11 Weintraub, Karl J., ‘Autobiography and historical consciousness’, Critical Inquiry, 1, June (1975), 827Google Scholar. Diary writing became increasingly common in England from the late Elizabethan period onward. These diaries contain a wealth of information on day to day life, and have been used extensively by early modern social historians as a source. For example see Linda, Pollock, Forgotten children (Cambridge, 1983), esp. pp. 6889.Google Scholar

12 Amussen, Susan Dwyer, An ordered society: gender and class in early modern England (Oxford, 1988)Google Scholar; Keith, Wrightson, ‘Estates, degrees, and sorts: changing perceptions of society in Tudor and Stuart England’, in Corfield, P. J. (ed.), Language, history and class (Oxford, 1991), pp. 3052.Google Scholar

13 Michael, Clanchy, ‘Law and love in the middle ages’, in Bossy, (ed.), Disputes and settlementsGoogle Scholar; John, Bossy, Christianity in the west (Oxford, 1985), pp. 140–52Google Scholar; Bossy, J., ‘Moral arithmetic: seven sins into ten commandments’, in Edmund, Leites (ed.), Conscience and casuistry in early modern Europe (Cambridge, 1988), pp. 214–34CrossRefGoogle Scholar. Felicity Heal has also described how perceptions of hospitality also shifted during the same period from the idea of ministering to the material and spiritual needs of one's fellow man, to judging the worth of those in need of charity. Heal, F., Hospitality in early modern England (Oxford, 1990), pp. 389402CrossRefGoogle Scholar. For discussions and debates about how such notions of solidarity were actually expressed in the institutional and social structure of medieval communities, see, Smith, Richard M., ‘“Modernization” and the corporate medieval village community in England: some sceptical reflections’, in Baker, Alan R. H. and Gregory, Derek (eds.), Explorations in historical geography (Cambridge, 1984), pp. 140–79Google Scholar; Miri, Rubin, ‘Small groups: identity and solidarity in the late middle ages’, in Jennifer, Kermode (ed.), Enterprise and individuals (Stroud, 1991), pp. 132–50Google Scholar; Zvi, Razi, ‘Family, land and the village community in later medieval England’, Past and Present, XCIII (1981), 436Google Scholar. For work on medieval litigation and the arbitration of disputes, see, Britnell, R. H., Growth and decline in Colchester, 1300–1525 (Cambridge, 1986), pp. 98114, 206–17CrossRefGoogle Scholar; Edward, Powell, ‘Settlement of disputes by arbitration in fifteenth-century England’, Law and History Review, II (1984), 2143Google Scholar; Carole, Rawcliffe, ‘That Kindliness should be cherished more, and discord driven out': the settlement of commercial disputes by arbitration in later medieval England’, in Jennifer, Kermode (ed.), Enterprise and individuals (Stroud, 1991), pp. 99117Google Scholar. It is my contention here that it was not changes in practice which led to a reformulation of community in negative terms, but the sheer overwhelming scale of disputation and the need for settlement brought about by the growth of the market.

14 Clanchy, , ‘Law and love’, pp. 13Google Scholar; see below p. 928. For a discussion of a broader simultaneous philosophical skepticism about the possibility of natural sociability in the face of sin in a European context see, Quentin, Skinner, The foundations of modern political thought (Cambridge, 1978), I, 157–61.Google Scholar

15 SirElyot, Thomas, The boke named the gouernour, edited by Henry Herbert, Stephen Croft (2 vols., London, 1880), I, 148, II, 202Google Scholar; Thomas, Wilson, Arte of rhetorique, Derrick, Thomas J. (ed.), (London, 1982), pp. 1821Google Scholar. Bossy, , ‘Moral arithmetic’, pp. 217.Google Scholar

16 For a criticism of thinking which sees the two phenomena as functionally incompatible see, Laura, Nader, ‘The recurrent dialectic between legality and its alternatives: The limitations of binary thinking’, University of Pennsylvania Law Review, CXXXII (1984), 621–45.Google Scholar

17 Brooks, , Pettyfoggers, pp. 69, 94–7Google Scholar. Craig, Muldrew, ‘Credit, market relations and debt litigation in late seventeenth century England, with special reference to King's Lynn’ (unpublished Ph.D. dissertation, Cambridge, 1990), pp. 145–80Google Scholar. Cases concerning credit also predominated in the exchequer court of Chester. Jones, W. J., ‘The exchequer of Chester in the last years of Elizabeth I’, in Slavin, A. J. (ed.), Tudor men and institutions (Baton Rouge, 1972), pp. 141–5.Google Scholar

18 Davies, , Le primer report, p. 138.Google Scholar

19 This contrasts with the situation in early colonial America, where historians have dealt with dispute settlement more thoroughly than is the case for early modern England. American historians have argued that there was a linear progression away from informal community based dispute settlement in the colonies, as this was supplanted and eroded by the growth of institutional litigation. Mann, Bruce H., Neighbours and strangers; law and community in early Connecticut (Chapel Hill, 1987)Google Scholar; Konig, David Thomas, Law and society in puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill, 1979)Google Scholar. Nicole Castan has argued that a very similar sort of progression took place in France in the seventeenth and eighteenth centuries. Castan, N., ‘The arbitration of disputes under the “Ancien Regime”’, in Bossy, (ed.), Disputes and settlements, pp. 220, 257–60.Google Scholar

20 For an excellent and provocative discussion of how state formation was in many ways a response to this popular ‘demand’ for authority, see Steve, Hindle, ‘Aspects of the relationship of the state and local society in early modern England: with special reference to Cheshire C. 1590–1630’ (unpublished Ph.D. dissertation, Cambridge University, 1992).Google Scholar

21 There were, of course, also numerous familial arguments, and drunken brawls, as well as disputes between communities. James Jackson related how a quarrel broke out in a church yard one Sunday afternoon amongst parishioners who had been at the alehouse. He drew the expected moral lesson about non-attendance at church, and pointed out that the affair ended ‘to the losse of much bloode’. Francis, Grainger (ed.), James Jackson's diary, 1650–1683, Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society, new series, XX (1921), 98100Google Scholar. Bagley, J. J. and Tyrer, F. (eds.), The great diurnal of Nicholas Blundell of Little Crosby, Lancashire, Record Society of Lancashire and Cheshire (1968), II, 13, 6, 10, 20, 27, 30, 36–7Google Scholar; Robert, Latham and William, Mathews (eds.), The diary of Samuel Pepys (10 vols., London, 19701983), II, 6, 64, 90.Google Scholar

22 Alan, Macfarlane, The family life of Ralph Josselin, a seventeenth-century clergyman: An essay in historical anthropology (Cambridge, 1970), pp. 57.Google Scholar

23 Ruth, Bird (ed.), The journal of Giles Moore, Sussex Record Society, LXVIII (1971).Google Scholar

24 Alan Macfarlane and Keith Wrightson have looked at some of Josselin's, and Adam Eyre's loans to neighbours, but little else has been done. Macfarlane, , Family life of Ralph Josselin, pp. 55–9Google Scholar; Keith, Wrightson, English society, 1580–1680 (New Brunswick, N.J., 1982), pp. 52–3Google Scholar. Adam Eyre, and Nicholas Blundell, mentioned debts or reckonings (the balancing of accounts with others) innumerable times. Morehouse, H. J. (ed.), ‘The diurnall of Adam Eyre’, in Yorkshire Diaries, Surtees Society, LXV (1875), pp. 8, 910, 15, 16, 23, passimGoogle Scholar; Blundell, , Diurnal, 1, 17, 18, 24, 26, 28, 41, 49, 65, 75, 82, 86, 90, 107, passim.Google Scholar

25 Samuel Pepys and the Lancashire estate owner Nicholas Blundell both kept detailed separate account books of their financial dealings, but both obviously still considered the memory of the actual transactions they were engaged in socially important enough to record in their diaries. Keith, Thomas, ‘Numeracy in early modern England’, Transactions of the Royal Historical Society, 5th Series, XXXVII (1987), 103–32.Google Scholar

26 Pepys, , Diary, I, II, 190, 201, 204, 279Google Scholar; Vaisey, D. (ed.), The diary of Thomas Turner, 1754–1763 (Oxford, 1985), pp. 13, 169.Google Scholar

27 Mendelson, Sarah Heller, ‘Stuart women's diaries and occasional memoirs’, in Mary, Prior (ed.), Women in English society, 1500–1800 (London, 1985), pp. 181210.Google Scholar

28 Dates given above indicate the time spans covered by the diaries.

29 For examples of such works see below pp. 928, 930, 936.

30 This was true despite the decline in litigation in the first half of the eighteenth century. Brooks, , ‘Interpersonal conflict’, pp. 360–7.Google Scholar

31 It should be noted as a caveat, however, that while there is evidence that poorer individuals believed in the virtue of reconciliation, it can not similarly be shown whether they considered themselves to have been treated with equanimity in arbitrations by their betters.

32 Sachse, W. L. (ed.), The diary of Roger Lowe, 1663–1674 (London, 1938), p. 76.Google Scholar

33 Turner, J. Horsfall (ed.), The Rev. Oliver Heywood B.A., 1630–1702: his autobiography, diaries, anecdote and event books (Bingley, 1883), III, 94.Google Scholar

34 Turner, , Diary, p. 31Google Scholar. For other examples of quarrels see, Pepys, , Diary, II, 6, 64, 90, III, 24, 45, 145–6, 216, 261, IV, 211, 288Google Scholar; Blundell, , Diurnal, I, 96, III, 120, 123, 130, 144–7, 203–4, 219, 247, 277Google Scholar; Bradley, J. A. (ed.), The diary of Walter Powell 1603–1654 (Bristol, 1907), pp. 25, 27, 30Google Scholar; Dove, Stephen G. (ed.), The parish register and tithing book of Thomas Hassell of Amwell, Hertfordshire Record Society, 5 (1989), p. 228Google Scholar; Ashcroft, M. Y. (ed.), The papers of Sir William Chaytor of Croft 1639–1721, North Yorkshire County Record Office Publications, 38 (1984), pp. 22, 26, 50, 62, 93, 145, 163, 183.Google Scholar

35 Because of the shortage of cash, it was a common practice for individuals to wait for a period of time, and then ‘reckon’ with one another; that is to compare accounts and cross out mutual amounts owed to one another and then pay the remainder to whomever it was owed. Muldrew, , ‘Credit market relations and debt litigation’, pp. 1924, 254–8.Google Scholar

36 Only 11% of the suits entered in the borough court of Lynn involved sealed instruments. Ibid. pp. 145–80, 234–77. Suits over bonds, however, were much more common in the central courts, where suits over larger sums, negotiated between traders dealing over longer distances were more common. Brooks, , Pettyfoggers, pp. 6670.Google Scholar

37 David, Cressy, Literacy and the social order, reading and writing in Tudor and Stuart England (Cambridge, 1980), pp. 176–7, ch. 6Google Scholar; Keith, Thomas, ‘The meaning of literacy in early modern England’, in Gerd, Bauman (ed.), The written word in transition: Wolfson College Lectures 1985 (Oxford, 1986), pp. 102–3, 108–11Google Scholar; Keith, Thomas, ‘Numeracy in early modern England’, pp. 103–32Google Scholar. John, Warr, The corruption and deficiency of the laws of England soberly discovered (London, 1949)Google Scholar, reprinted in Wootton, (ed.), Divine right, pp. 158–63.Google Scholar

38 Wallington never seemed to have any more than a vague idea of the value of his cash on hand, or goods in his shop. In one of his personal manuscripts entitled ‘A Record of the Mercies of God’, he related the story of a dishonest journeyman, who, in the space of two years, managed to embezzle over £100 pounds from Wallington without him noticing the loss! Paul, Seaver, Wallington's world; a puritan artisan in seventeenth-century London (Stanford, 1985), pp. 120–4Google Scholar. Guildhall Library MS 204, pp. 428–30.

39 Blundell, , Diary, I, 67, 131, 203, 225, 288, 313–22.Google Scholar

40 Turner, , Diary, p. 207Google Scholar. Also see, Eyre, , ‘Diurnal’, p. 72.Google Scholar

41 Blundell, , Diurnal, I, 31, 57, 62, 77, 90, 103, 193, 206, 280, 285, 277Google Scholar; Giles, Moore, Journal, pp. 5, 170–3, 194–5, 222.Google Scholar

42 For a discussion of community memory, see Daniel, Woolf, ‘Memory and historical culture in early modern England’, Journal of the Canadian Historical Association, New Series 3 (1992), 301–4.Google Scholar

43 Henry, Wilkinson, The debt book, or a treatise upon Romans 13, civil debt and sacred debt of love (London, 1625), pp. 9, 60, 65, 69, 72.Google Scholar

44 For a discussion of the protestant notion of inherent sin see Herrup, , ‘Law and morality’, pp. 109–11, 123Google Scholar. The most famous exposition of the antisocial nature of the passions is that of Thomas Hobbes. Hobbes, , On man, ed. by Bernard, Gert (New York, 1972), pp. 5570Google Scholar; Hobbes, , Leviathan, ed. by Macpherson, C. B. (Harmondsworth, 1968), pp. 183–8.Google Scholar

45 Fletcher, J. S. (ed.), The correspondence of Nathan Walworth and Peter Seddon of Outwood, Chetham Society, 109 (1880), pp. 57–8Google Scholar. Also see, Heywood, , Autobiography and diaries, II, 247Google Scholar; Gough, , History of Myddle, pp. 59, 95, 101, 104, 140, 184, 245.Google Scholar

46 Ashcroft, (ed.), Papers of Sir William Chaytor, p. 22.Google Scholar

47 Heywood, , Autobiography and diaries, III, 274.Google Scholar

48 Gerrard Winstanley's denunciation of quarrelling and repeated emphasis on the necessity of law in his pamphlets aimed at the poor is evidence that these values were held by poorer people. Gerrard, Winstanley, A new-yeers gift for the parliament and armie (London, 1650)Google Scholar, reprinted in Wootton, (ed.), Divine right, pp. 318–25Google Scholar. John, Brewer and John, Styles, ‘Introduction’, to Brewer, J. and Styles, J. (eds.), An ungovernable people, pp. 1314Google Scholar; Sharpe, , ‘The people and the law’, pp. 244–7Google Scholar. Keith Wrightson has shown how villagers could believe in order while at the same time disagreeing on what sort of behaviour needed to be proscribed by law. Wrightson, , ‘Two concepts of order’, pp. 2146.Google Scholar

49 Muldrew, , ‘Credit, market relations and debt litigation’, pp. 170–80.Google Scholar

50 William, Gouge, Of domesticall duties (London, 1622), pp. 228–31.Google Scholar

51 Hobbes, , De cive edited by Bernard, Gert (New York, 1972), pp. 109–64Google Scholar; Hobbes, , Leviathan, pp. 183–8, 193, 196, 200–4, 223–8.Google Scholar

52 See, for instance, Elyot, , Boke named the gouemour, pp. 186–7, 220 ff.Google Scholar

53 Thomas, Wilson, Arte of rhetorique, pp. 1619, 66–9.Google Scholar

54 Hainsworth, R. H. (ed.), Commercial papers of Sir Christopher Lowther 1611–1644, Surtees Society, 189 (1974), p. 27.Google Scholar

55 Josselin, , Diary, p. 245.Google Scholar

56 Ibid. p. 364. Blundell also recorded instances when he helped to decide differences between his tenants and friends, including disputes over land, one between two parsons, and one between a husband and wife in which he asked another tenant to ‘help make them friends’. Blundell, , Diurnal, I, 120, 123, 130, 161, 170; II, 10Google Scholar. Powell, , Diary, p. 23.Google Scholar

57 Turner, , Diary, pp. 3, 12, 13, 31, 47, 129.Google Scholar

58 It is clear from the diaries that those whom the authors called friends and neighbours could come from places quite a distance from where they themselves lived. Many of Nicholas Blundell's friends lived in Liverpool, for instance. In this sense the bounds of the community were quite flexible. It is, however, much more difficult to tell, from the diary evidence alone, to what extent nonconformists and catholics drew primarily upon neighbours who shared their own beliefs for assistance. For a discussion of ‘neighbourliness’ and the variable geographical boundaries of the neighbourhood, see Keith, Wrightson, English society, pp. 51–7Google Scholar. For a discussion of the nature of ‘communities’, see Ian, Archer, The pursuit of stability, social relations in Elizabethan London (Cambridge, 1991), pp. 5960.Google Scholar

59 Thomas, Tusser, Five hundred points of good husbandry (Oxford, 1984), pp. 1819Google Scholar. Wilkinson, , The debt book, pp. 4, 59, 95Google Scholar; Turner, , Diary, pp. 105, 137, 225.Google Scholar

60 Wilkinson, , The debt book, p. 103Google Scholar. Keith Thomas has shown how clergymen, especially, were expected to act as arbiters, and good neighbours to their flocks. George Herbert exclaimed that a good parson should ‘endure not that any of his flock should go to law: but in any controversy that they should resort to him as their judge’. Keith, Thomas, Religion and the decline of magic (Harmondsworth, 1971), p. 182–3Google Scholar. Religious sayings expressing moral sentiments against quarrelling could be hung on the walls of alehouses or in the dwellings of the poor. Tessa, Watt, Cheap print and popular piety 1550–1640 (Cambridge, 1991), pp. 96, 100, 101, 220, 234, 253.Google Scholar

61 Cheshire Record Office, Quarter Sessions Files, QJF 27/2/44; Grosvenor MS 2/20 fo. 53, 2/24. These references were kindly supplied by Steve, Hindle, and will appear in Hindle, ‘The keeping of the public peace in early modern England’, in Adam, Fox, Paul, Griffiths, AND Steve, Hindle (eds.), The experience of authority in early modem England (London, 1996)Google Scholar. Paul Bowes of Great Bromley in Essex claimed that when his father was a J.P. he prevailed with his neighbours ‘by Councells, perswations and his owne example to live peaceably, forgive iniuries and compose diferences whereby he became signalized for a great peace maker and doth enjoy the blessed fruites thereof.’ East Suffolk Record Office, Paul Bowe's Diary of Great Bromley, 1659–1683 (typescript) HA93/10/4, p. 8.

62 Josselin, , Diary, p. 457Google Scholar. For other examples of Josselin acting as arbitrator in differences between his neighbours see pp. 409, 436, 457, 544, 567.

63 Heywood, , Autobiography and diaries, II, 286.Google Scholar

64 Eyre, , ‘Diurnall’, pp. 32–3.Google Scholar

65 Josselin, , Diary, pp. 278, 327.Google Scholar

66 For a contemporary definition of an arbitrator see, John, Cowell, The interpreter (Cambridge, 1607), p. 38Google Scholar. Simon, Roberts, Order and dispute, p. 70Google Scholar: Roberts, , ‘The study of dispute: anthropological perspectives’, in Disputes and settlements, pp. 1113Google Scholar. Also see, Stein, , Legal institutions, pp. 56, 15.Google Scholar

67 NRO KL/C25/17, 09/18/52. For some examples of the legal forms of written arbitrations, see William, West, Symbolaeographia (London, 1590), sec. 424–7Google Scholar. Such directions could be put in wills as well.

68 Blundell, , Diurnal, I, 144–50, 301.Google Scholar

69 For a discussion of the duty of J.P.s to act as arbitrators see, Hindle, , ‘Keeping of the public peace’ (forthcoming)Google Scholar, and Norma, Landau, The justices of the peace 1679–1760 (Berkeley, 1984), pp. 173208.Google Scholar

70 Pepys, , Diary, IV, 398.Google Scholar

71 Ibid. IV, 404.

72 Ibid. V, 36; Powell, , Diary, pp. 15, 23Google Scholar; Eyre, , ‘Diurnall’, pp. 4, 7, 31–2, 8994.Google Scholar

73 Norman, Penny (ed.), The household account book of Sarah Fell of Swarthmoor Hall (Cambridge, 1920)Google Scholar; Meads, D. M. (ed.), The diary of Lady Margaret Hoby, 1599–1605 (London, 1930), pp. 94–5, 156, 178, 179, 218Google Scholar; John, Loftis, The memoirs of Anne, Lady Halkett and Ann, Lady Fanshawe (Oxford, 1979), pp. 83–4, 189Google Scholar; Thwaites, W., ‘Women in the market place: Oxfordshire c. 1690–1800’, Midland History, IX (1984), 2342CrossRefGoogle Scholar; Peter, Earle, The making of the English middle class (London, 1989), pp. 158–74Google Scholar; Mary, Prior, ‘Women and the urban economy: Oxford 1500–1800’, in Prior, M. (ed.), Women in English society, 1500–1800 (London, 1985), pp. 93117.Google Scholar

74 Eyre, , ‘Diurnall’, pp. 42–3.Google Scholar

75 Hoby, , Diary, pp. 155–6, 189Google Scholar; Halkett, , Memoirs, pp. 32–3Google Scholar; Thornton, , Diary, pp. 16, 136, 163.Google Scholar

76 Heywood, , Autobiography and diaries, I, 50.Google Scholar

77 The Countess of Warwick, Daily Spiritual Diary and Meditations, 166–78, BL Add. MSS 27351–6, 1 March; 30 May; 8, 14 June 1677. (I would like to thank Sarah Mendelson for this reference.)

78 Blundell, , Diurnal, I, 26, 47, 51–2, 90.Google Scholar

79 Cholmeley paid over £120 per year in recusancy fines on an estate worth less than £800 per year, and he also had to deal with informers attempting to gather information on him and his family. The memorandum book of Richard Cholmeley of Brandsby, 1602–1623, North Yorkshire Record Office Publications 44 (1988), pp. vii–viii, 112, 18, 34–8, 60–2, 89, 122, 131, 146.Google Scholar

80 Ibid. pp. ix, 16, 162, 165.

81 Such power was given to landlords in rental agreements, and once a distress was taken the tenant had to sue for trespass in common law if he felt the action to have been unjust. If the rent remained unpaid the landlord could eventually sell the distrained goods at common sale to recover what was owed. In most cases, though, the distress was meant simply to force the tenant to ‘compound neighbourly with him for the debt’. Cowell, The interpreter, sv. distresse; Baker, J. H., An introduction to English legal history, third edn (London, 1990), pp. 271–3.Google Scholar

82 Cowlson had already been sued by Sir Henry Browne. A month later he was also sued by Cholmeley's uncle Robert Hungate and threatened by others, which forced him to flee the parish to avoid being arrested, while his friends again rescued his one poor cow from the pound and attempted to hide it from the bailiff. Ibid. pp. 158, 161–2.

83 Ibid. pp. 159–62.

84 Ibid. pp. 162, 167.

85 A copy of a bond of this nature can be found in the King's Lynn court books, where two individuals who seem to have been engaged in a fairly serious quarrel signed an agreement which made provision for the repayment of £13 15s. in two separate payments. NRO KL/C25/17, 11/13/52. Also see, Eyre, , ‘Diurnall’, p. 80.Google Scholar

86 Marshall, J. D. (ed.), The autobiography of William Stout, Chetham Society, third series, 14 (1967). P. 146.Google Scholar

87 Tusser, , Five hundred points, p. 21Google Scholar. For information on the popularity of this work, see Stevenson, L. C., Praise and paradox (Cambridge, 1984), pp. 16, 132, 140–1.CrossRefGoogle Scholar

88 Tusser, , Five hundred points, p. 13.Google Scholar

89 Pepys, , Diary, II, 29.Google Scholar

90 John, Vernon, The compleat compting-house (London, 1678), pp. 178–9.Google Scholar

91 Lowe, , Diary, p. 44.Google Scholar

92 Josselin, , Diary, p. 315.Google Scholar

93 Walworth, , Correspondence, pp. 60–5.Google Scholar

94 Stout, , Autobiography, p. 120.Google Scholar

95 Josselin, , Diary, p. 342.Google Scholar

96 Pepys, , Diary, III, 16.Google Scholar

97 The debt had actually been incurred by Robert Pepys, but Samuel was responsible for it as the executor of the will. He eventually paid it in full two and one half months later. Ibid., III, 34, 80.

98 Blundell, , Diurnal, I, 89, 189, 285, 310.Google Scholar

99 Muldrew, , ‘Credit, market relations and debt litigation’, pp. 321–7Google Scholar. Anderson, B. L., ‘The attorney and the early capital market in Lancashire’, in Crouzet, F. (ed.), Capital formation and the industrial revolution (London, 1972), pp. 223–55.Google Scholar

100 Blundell, , Diurnal, I, 79, 277.Google Scholar

101 Ibid. pp. 189, 285.

102 Stout, , Autobiography, p. 120.Google Scholar

103 Brooks, , Pettyfoggers, pp. 132–7, 193–5Google Scholar; Prest, W. R., The rise of the barristers: a social history of the English bar 1590–1640 (Oxford, 1986), pp. 281–91Google Scholar; Sharpe, , ‘The people and the law’, pp. 258–60.Google Scholar

104 Wallington, , Record of the mercies of God, Guildhall Lib. MS 204, pp. 464–5Google Scholar; Lowe, , Diary, p. 89Google Scholar; Long, W. H. (ed.), The Oglander memoirs: extracts from the MSS of Sir John Oglander (London, 1888), pp. 20–1.Google Scholar

105 Walworth, , Correspondence, pp. 75–6Google Scholar. John Evelyn also recorded dining with the unpopular Lord Chancellor Jeffries and three Sergeants in 1686, where they told stories of how they had ‘detained their clients in tedious processes, by their tricks’ as if Evelyn noted, ‘so many highway thieves should have met and discovered the severall purses they had taken’. de Beer, E. S. (ed.), The diary of John Evelyn (London, 1959), p. 856.Google Scholar

106 Jones, , Chancery, pp. 314–20Google Scholar. Brooks, , Pettyfoggers, pp. 134–5Google Scholar, and for a discussion of local attorney's practices, and their place in society see chs. 3, 9–11.

107 Stout, , Autobiography, p. 189Google Scholar. In one of the many difficult disputes Alice Thornton became involved in, in this case concerning some of her husband's debts, she turned to her cousin, one Roger Covill, whom she described as, ‘a very able lawyer and a good honnest man, a freind… [who] had don many offices of kindness for us…’ Thornton, , Diary, p. 279.Google Scholar

108 In King's Lynn, for instance, a complaint could be made for only 4d. Norfolk Record Office, KL/C27/22.

109 For other statements of this view, see Jones, , Chancery, pp. 265–6Google Scholar; Sharpe, , ‘Such disagreement’, pp. 183, 185.Google Scholar

110 Walworth, , Correspondence, p. 61.Google Scholar

111 Turner, , Diary, pp. xxiii, 1617, 28–9, 34Google Scholar. Blundell noted an instance where he instructed his lawyer to cease proceedings in a suit after an agreement was made. Blundell, , Diurnal, I, 170Google Scholar. See also, ibid. pp. 133, 211, 224, 246, II, 66.

112 In Lynn only 4% of suits ever went all the way to judgement. In 1975, similarly, only 4·5% of actions entered in county courts had judgements entered, which indicates that in our age as well, most suits are not initiated with a view to obtaining a final court awarded judgement. Brooks, , Pettyfoggers, p. 76 n. 9.Google Scholar

113 For the civic authority of mayors and aldermen see Robert, Tittler, Architecture and power: The town hall and the English urban community 1500–1660 (Oxford, 1991), pp. 98120.Google Scholar

114 John, Rushworth, The tryal of Thomas Earl of Strafford (London, 1680), p. 662Google Scholar. Similar sentiments were expressed in a preamble to the York Assizes in 1620 cited in Sharpe, , ‘The People and the law’, p. 246Google Scholar. Also, see Brooks, , Pettyfoggers, p. 135Google Scholar, and Judson, Margaret A., The crisis of the constitution. An essay in constitutional and political thought in England, 1603–1645 (New York, 1949), pp. 4467.Google Scholar

115 Hobbes, , Leviathan, pp. 189239.Google Scholar

116 The seriousness of imprisonment in gaols, where poor conditions could often lead to death, was criticized by many contemporaries. Paul, Haagen, ‘Eighteenth-century English society and the debt law’, in Stanley, Cohen and Andrew, Scull (eds.) Social control and the state (Oxford, 1983), pp. 222–47Google Scholar; Joanna, Innes, ‘The King's Bench Prison in the later eighteenth-century’, in An ungovernable people, pp. 250–98.Google Scholar

117 Both Steve Rappaport and Ian Archer have shown how the courts of the London companies played an important role in helping to arbitrate disputes between their members. Rappaport, , Worlds within worlds, pp. 201–13Google Scholar; Archer, , Pursuit of stability, pp. 78–9, 100Google Scholar. Pepys and Heywood recorded in detail Chancery suits they were involved in which were ended through negotiation. Pepys, , Diary, I, 134 n. 2Google Scholar; n, 214–15, 134; rv, 221, 132, 351–2; x, 20–321. Heywood, , Autobiography and diaries, III, pp. 142–3.Google Scholar

118 Turner, , Diary, p. 283.Google Scholar

119 See above, p. 928. Also see, Craig, Muldrew, ‘The contractual society: litigation and the social order 1550–1650’ (unpublished paper).Google Scholar