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Documenting Authority: Texts and Magistracy in Restoration Society*

Published online by Cambridge University Press:  11 July 2014

James M. Rosenheim
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Despite the initial welcome extended to him, Charles II returned to the English throne in 1660 accompanied by skepticism and even hostility from substantial numbers of his subjects. In the years immediately following the Restoration, the king, his government and the landed order, all uncertain of the extent of their power, strove together to define, reassert, and make it permanent. This was no easy task, in part because the messages of the Restoration were confusing. One was conciliatory, acknowledging that the events of the 1640s and 1650s could not be undone and had to be accommodated in some manner by the new regime. Legal proceedings under the republic were confirmed, passage of the Act of Indemnity signalled the eschewal of systematic revenge, and the retention of Interregnum officials, especially in local administration, deprived triumphant Anglican royalists of the monopoly of power and office for which they had hoped. The other message was conveyed in harsher terms. In many places and from many institutions, adherents of the revolutionary regime did lose their positions, while followers of recently-respectable creeds were now cast as enemies of the state and good order. The new monarchical order held no brief for republicans, and many dissenters of no very radical stripe were quickly placed beyond an official pale because they could not accept a prayer-book order in the church. In the early years of the Restoration, then, policies of accommodation coexisted with those of repression, and we may well ask how in these circumstances an enduring regime was reconstructed.

Type
Order and Authority: Creating Party in Restoration England
Information
Albion , Volume 25 , Issue 4 , Winter 1993 , pp. 591 - 604
Copyright
Copyright © North American Conference on British Studies 1993

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Footnotes

*

Earlier versions of this paper were presented to the South-Central Society for Eighteenth Century Studies and the American Historical Association. The members of a colloquium of the Interdisciplinary Group for Historical Literary Study at Texas A&M University provided me a challenging and highly beneficial set of perspectives on this study. More particularly I am indebted to the comments of David Anderson, Daniel Bornstein, Jeff Cox, Margaret Ezell, Richard Greaves, Howard Marchitello, Larry Reynolds, Edward Rosenheim, Lawrence Stone, and Larry Yarak.

References

1 The conceit of reconstruction is Seaward's, Paul: The Cavalier Parliament and the Reconstruction of the Old Regime 1661–1667 (Cambridge, 1989)Google Scholar.

2 The literature notably includes Shoemaker, Robert B., Prosecution and Punishment: Petty crime and the law in London and rural Middlesex, c. 1660–1725 (Cambridge, 1991)Google Scholar; Herrup, Cynthia B., The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge, 1987)CrossRefGoogle Scholar; Beattie, J. M., Crime and the Courts in England 1660–1800 (Princeton, 1986)Google Scholar; Landau, Norma, The Justices of the Peace, 1679–1760 (Berkeley, 1984)Google Scholar; Sharpe, J. A., Crime in Seventeenth-Century England: A County Study (Cambridge, 1983)Google Scholar; Hay, Douglas, et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975)Google Scholar. Part I of Langbein's, JohnProsecuting Crime in the Renaissance (Cambridge, Mass., 1974)CrossRefGoogle Scholar, revealingly entitled “The Marian Statutes,” constitutes an exception to my generalization.

3 On Doughty, who was in the commission from December 1660 to December 1665, see Rosenheim, I. M., “Robert Doughty of Hanworth, A Restoration Magistrate,” Norfolk Archaeology 38 (1983): 296–312Google Scholar, and Rosenheim, , ed., The Justice's Notebook of Robert Doughty, 1662–1665, Norfolk Record Society 54 (1991)Google Scholar (hereafter cited as JN).

4 This figure is calculated from the notebook, begun after Doughty had been on the bench for twenty months, which records some 650 occasions between August 1662 and December 1665 when he acted as a justice. Even this account is not exhaustive, since papers relating to justice business not recorded in the notebook survive in the Norfolk Record Office (hereafter NRO), principally in Aylsham 1 and Aylsham 347.

5 See Herrup, The Common Peace; Shoemaker, Prosecution and Punishment, part II; Beattie, Crime and the Courts, chs. 2, 8.

6 Although most people who appeared before Robert Doughty sought written orders or warrants from him, not all did so, which reminds us that documents were not necessarily to the fore in legitimating magisterial authority.

7 Commissions themselves survive haphazardly, mostly in local record offices, but the Crown Office docquet books provide a guide to their issuance. For Robert Doughty's appointment, see Public Record Office, C231/7, f. 58.

8 W. Burleigh to R. Doughty, 12 December 1660, NRO, Aylsham 193, instructed Doughty to appear at sessions to be sworn a justice. Doughty's official dismissal came in October 1665 but in ignorance of it he continued to act until December. On the embarrassment of dismissal see Smith, A. H., County and Court: Government and Politics in Norfolk 1558–1603 (Oxford, 1974), p. 73Google Scholar.

9 However usual, it was of course not necessary to come to a justice in person to secure his warrant (see R. Fisher to R. Doughty, 13 November 1665, NRO, Aylsham 193).

10 Another important type of unofficial document consists of the correspondence about legal business directed from justices to government officials. In Doughty's case, he wrote two significant explanatory letters, one explaining his actions regarding an accusation of treasonable words and the other excusing an absence from assizes and inquiring after two cases he forwarded there for trial. For the first correspondence see the draft to Edward, Earl of Manchester, Lord Chamberlain, 27 December 1662, and three contemporary drafts to “Our Good Lord,” all in NRO, Aylsham 1. For the second correspondence see two undated drafts (after 16 March 1663) to Matthew Hale, Lord Chief Baron of the Exchequer, on an envelope addressed “For Robert Doughty Esq at his house at Hanworth,” NRO, Aylshafn 347.

11 Three of these charges survive in both states, the other in rough form only. The three fair copies are printed in JN, pp. 89–121. See notes intended for the fourth charge, starting “In the year of our Lord 1348…,” NRO, Aylsham 304.

12 Fletcher, Anthony, Reform in the Provinces: The Government of Stuart England (New Haven, 1986), p. 172Google Scholar.

13 JN, p. 89.

14 In his breakdown of offences, Doughty's debt is evident to Lambarde, W., Eirenarcha, or Of the Office of the Justice of Peace, London, 1619Google Scholar (and other editions: it is unclear which Doughty knew).

15 Charges to the Grand Jury at Quarter Sessions 1660–1677 by Sir Peter Leicester, ed. Halcrow, E. M., Chetham Society 3rd ser., 5 (1953): 43Google Scholar. Leicester said this in a charge delivered in 1666.

16 To what extent a justice actually indicated his authorities to his audience is unclear. In Doughty's case, references to statutory or biblical authority were sometimes appended to sentences almost as source notes (e.g. “Subornation of perjury is committed by any who procureth another to swear: 4 Elizabeth c. 9” [JN, p. 90]). At other times, however, they were incorporated in Doughty's phrasing (see his use of Isaiah 45:23 to justify oath taking [ibid., p. 91]), and on occasion he directly discussed a particular statute (as with the Quaker Act of 1662 [ibid., pp. 91–92]). At times Doughty abbreviated his charges in delivery and may have omitted his source references altogether (ibid., pp. 40, 89, 104).

17 Ibid., pp. 89, 104.

18 Halcrow, , ed., Charges to the Grand Jury, pp. 106–08, 149Google Scholar.

19 JN, pp. 15–17; Sharpe, J. A., ed., “William Holcroft His Booke”: Local office-holding in late Stuart Essex, Essex Historical Documents, no. 2 (Chelmsford, 1986), pp. 51–54Google Scholar; Shoemaker, , Prosecution and Punishment, pp. 53–54Google Scholar. Doughty's forms are found in NRO, Aylsham 304; see as well “A warrant for apprehending a felon,” 27 June 1661, NRO, Aylsham 347.

20 See his draft letter to “Our Good Lord” (i.e. the Earl of Manchester), n.d., NRO, Aylsham 1, where he refers to “the direction of Mr Dalton in that impression I have (for the later are in that particular larger).”

21 JN, p. 26. The reference is presumably to The Reports of Sir George Croke…, 3 parts, London, 1637–1661Google Scholar. Sir Peter Leicester's library contained the reports of Dyer, Coke, Croke, and Noy (Halcrow, , ed., Charges to the Grand Jury, p. 106Google Scholar).

22 Palgrave to Doughty, 3 December 1662, NRO, Aylsham 1. In a similar circumstance, Doughty was hamstrung as a tax commissioner in 1661 because the three acts raising money to disband the army each made different provisions for dealing with defaulters (draft warrant to the constables of Metton [30 March 1661], NRO, Aylsham 193).

23 JN, p. 40.

24 On the rarity of resistance, see Fletcher, Anthony J., “Honour, Reputation and Local Officeholding in Elizabethan and Stuart England,” in Fletcher, Anthony J. and Stevenson, John, eds., Order & Disorder in Early Modern England (Cambridge, 1985), pp. 113–14CrossRefGoogle Scholar.

25 Sharpe, , “William Holcroft His Booke,” p. xviGoogle Scholar; warrant, 12 November 1663, NRO, Aylsham 347 and Doughty's endorsement of 16 November. For other examples of justices who were the targets of abuse see Fletcher, , “Honour, Reputation and Local Officeholding,” pp. 110–13Google Scholar.

26 In his study of Middlesex, Shoemaker argues that for many, satisfaction with the system of misdemeanor law coexisted with “an undercurrent of serious lack of respect for representatives of the judicial system” (Prosecution and Punishment, pp. 315, 318).

27 Wairant, 21 September 1665, NRO, Aylsham 347.

28 JN, pp. 58–59; older, 18 June 1665, NRO, Aylsham 1.

29 JN, p. 57; warrant, 10 June 1665, NRO, Aylsham 1.

30 Warrant, 26 August 1664, endorsed with Doughty's notes of 29 August, NRO, Aylsham 347 and JN, pp. 41, 78. For efforts of the Middlesex bench to restrict justices to acting within a specific area, see Shoemaker, , Prosecution and Punishment, pp. 234–35, 256–58Google Scholar.

31 Informations of Priscilla Argent, Thomas Priest and John Gambling, 24 July 1665, NRO, Aylsham 347; JN, p. 61. For the “words against Mr Doughty” see the paper “Fakenham sessions July 1665,” in “Accounts 1660–1676,” NRO, Norfolk quarter sessions uncatalogued papers, material from Norwich city records, case 22, shelf a (4). Doughty was absent when Lomb appeared at quarter sessions in October 1665 where the disposition of the case is not recorded (quarter sessions session book, NRO, C/S1/8).

32 In the highly politicized climate of 1682, it was said that the Norfolk bench ignored the merits of legal matters before them and “at sessions…do not debate, but immediately cry, Put it to the vote”: Calendar of State Papers Domestic, 1682, p. 55Google Scholar.

33 I am grateful to Richard Greaves for this point.

34 13 Car. H, c. 6 (Statutes of the Realm, 5: 304–05Google Scholar).

35 Hutton, Ronald, The Restoration: A Political and Religious History of England and Wales, 1658–1667 (Oxford, 1985), p. 154Google Scholar; Greaves, Richard L., Deliver Us from Evil: The Radical Underground, 1660–1663 (Oxford, 1987), pp. 103, 166–67Google Scholar.

36 Scott, Jonathan, Algernon Sidney and the English Republic, 1623–1677 (Cambridge, 1988), p. 165Google Scholar; Seaward, , The Restoration, 1660–1688 (New York, 1991), pp. 27–29Google Scholar; Hutton, , The Restoration, pp. 150–52, 204–09Google Scholar.

37 Vann, Richard T., The Social Development of English Quakerism, 1655–1755 (Cambridge, Mass., 1969), pp. 16–17CrossRefGoogle Scholar.

38 JN, pp. 91–92.

39 JN, p. 117. Note Doughty's comment in June 1665 about “neglect of…office” on the part of churchwardens and overseers as well (order, 18 June 1665, NRO, Aylsham 1).

40 JN, p. 117.

41 Ibid., pp. 118–19.

42 Sharpe, , “William Holcroft His Booke,” pp. xii–xiiiGoogle Scholar.

43 Roberts, Stephen K., Recovery and Restoration in an English County: Devon Local Administration, 1646–1670 (Exeter, 1985), pp. 190–91Google Scholar; Hughes, Ann, Politics, Society and Civil War in Warwickshire, 1620–1660 (Cambridge, 1987), p. 282CrossRefGoogle Scholar.

44 Halcrow, , ed., Charges to the Grand Jury, pp. 39 and 41–56Google Scholar passim. Robert Doughty's cousin expressed his own anxiety over the continued inactivity of local officials, observing that their “common knavery…is the neglect [of] businesse” (R. Doughty of Aylsham to R. Doughty, 10 November 1665, NRO, Aylsham 304).

45 Generally see Seaward, Cavalier Parliament, chs. 6, 8, and 9. Greaves, , Deliver Us from Evil, and Enemies under his Feet: Radicals and Nonconformists in Britain, 1664–1677 (Stanford, 1990), chs. 1, 4–5Google Scholar provides a full account of the risings of the 1660s; Scott, Sidney and the English Republic, chs. 11–12, speaks to the threat from exiles.

46 Roberts, , Recovery and Restoration, p. 151Google Scholar.

47 Dunn, R. M., ed., Norfolk Lieutenancy Journal 1660–1676, Norfolk Record Society 45 (1977): 23–82Google Scholar. Victor Stater's Nobel Government: The Stuart Lord Lieutenancy (forthcoming) shows that the militia's statutory establishment was equally welcome to the king, whose control of it was thus recognized, and to the gentry, who welcomed the delineation of its powers.

48 Roberts, , Recovery and Restoration, p. 147Google Scholar; Quintrell, B. W., ed., Proceedings of the Lancashire Justices of the Peace at the Sheriff's Table during Assizes Week, 1578–1694, Record Society of Lancashire and Cheshire, 121 (1981), p. 109Google Scholar.

49 Seaward, , Cavalier Parliament, p. 45Google Scholar; Scott, , Sidney and the English Republic, p. 37Google Scholar. The phrase is from Sidney's, Discourses, written 1681–1683Google Scholar.