An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries
About a quarter of a century ago many historians decided that it was high time to study rather more of the population than the top 2 or 3 percent, from whom were drawn the political and social elite: the kings, generals, nobles, judges, bishops, politicians, and local magnates whose (mostly bloody) deeds had hitherto filled the history books. The trouble was, however, that very few of the bottom 97 percent have left any trace of themselves in the records, except the bare facts of their births, marriages, and deaths. As a result, much of the early work on the poor was aridly statistical in nature. But it fairly soon became apparent that reducing the vast majority of the population to a set of numbers in a table was hardly more enlightening than ignoring them altogether. We still did not know anything about what they thought or felt.
One way out of this dilemma was to turn to the records of the law, for here alone can the authentic voices of the poor be heard, if only as voluble witnesses, angry plaintiffs, and fearful defendants. Treated with care, these documents can act as “a point of entry into the mental world of the poor.” The results have begun to emerge in the form of case histories, of which the most famous is Emmanuel Le Roy Ladurie’s Montaillou. Historians strike the richest paydirt in societies that practiced Roman law, with its written interrogations and depositions, had a well-developed police system, and used torture to extract information. The records of the Inquisition are ideal, since this institution possessed all these characteristics and was also obsessively interested in what people—even humble people—thought. In Anglo-Saxon countries hardly any of these benefits (for historians) apply, but it is still possible to glean a rich harvest from a patient study of legal documents.
Apart from illuminating the mentalité and behavior of the poor, legal records can also throw light on the relationship of authority and society. In particular they can show how the law was perceived by different social layers and how, and in whose interest, it was applied in practice. This opens up new vistas on the nature and function of power, and on the perceptions of different groups of what constitutes natural justice.
There are two possible ways to go about tackling legal records. One is to break crime down into a series of categories and to quantify indictments over time, in order to produce the sort of statistics in which the late J. Edgar Hoover used to delight.1 Even today, however, this is a very dubious excuse. We know that the number of indictments bears little relation to the number of real acts, and we strongly suspect that the relationship has varied widely over time. Secondly the numbers used are commonly quite small, since they are so tedious to extract, which leads to false deductions being made from insignificant and perhaps random fluctuations. Thirdly, our aggregate population estimates are very shaky, which…
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