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2020-05-04 William Lambarde's Eirenarcha and the Centralization of Local Government

LeClair, Stacey Crystal

LeClair, S. C. (2020). William Lambarde's Eirenarcha and the Centralization of Local Government (Unpublished master's thesis). University of Calgary, Calgary, AB. http://hdl.handle.net/1880/111991 master thesis

University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY

William Lambarde's Eirenarcha and the Centralization of Local Government

by

Stacey Crystal LeClair

A THESIS

SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE OF MASTER OF ARTS

GRADUATE PROGRAM IN HISTORY

CALGARY, ALBERTA

MAY, 2020

© Stacey Crystal LeClair 2020

Abstract

William Lambarde played a pivotal role in the centralization of local government in late

Elizabethan England. Although he has been frequently referenced in history as a legal scholar and antiquarian, his widely read manual for the justices of the peace, Eirenarcha: Or, of the

Office of the Justices of the Peace (1582), demonstrates that his knowledge of the history of the common law enabled him to critically analyze the operations of local government in an effort to reform the way judicial administration was conducted by lay justices of the peace. This thesis investigates the work of Lambarde and his contribution to law reform in late Elizabethan

England, particularly as revealed through the Eirenarcha. One of the chief reasons for the publication of Eirenarcha was to provide a solution to the inefficiencies and inaccuracies that persisted in the administration of law and justice by lay JPs. At a time when the law was neither rigidly applied nor uniformly understood, Lambarde provided a comprehensive and consistent source of legal knowledge that acted as a bridge between the central government and the JPs in the localities, proving Lambarde to be a central figure in the process of criminal justice reform in late Elizabethan England. Lambarde’s legal reforms put forth through his Eirenarcha ultimately brought about tangible changes to the commission and made a lasting impression on legal scholars well into the seventeenth century.

ii Acknowledgments

There are a number of people to whom I must express my deepest and most sincere gratitude for their part in making this thesis a reality. Firstly, I would like to thank my supervisor, Dr. Ken

MacMillan, who took the time to provide me with excellent guidance, all the while challenging and encouraging me to pursue my passion for legal history. The attention you have paid to the development of my thesis has been exemplary and made what started off as a daunting task into a manageable challenge. I could not have asked for a better supervisor. Thank you to the Social

Sciences and Humanities Research Council (SSHRC) for funding my studies through the Canada

Graduate Scholarships program.

I must pay special thanks to my previous instructor Dr. Glenn Wilkinson, who encouraged me to not give up on my pursuit of law but to combine my curiosity for the law with my passion for history. I would also like to thank the amazing administrative staff in the

Department of History at the University of Calgary for their tremendous assistance throughout the past two years.

I have met so many great people over the course of my studies and I would like to thank my cohort for their endless support and encouragement. Amy, Blake, Chloe, Sam and Xumeng, thank you for making this entire experience so enjoyable. I always looked forward to attending class with you all. To my office mates, Tracy, Joe, Sophia, Logan and Alexis, thank for your company, motivation and most of all your friendship. I will miss our afternoon coffee runs.

To my family, thank you for your patience and support, not to mention for putting up with my makeshift law library on the kitchen table. To my Dad, for being the best cook! Thank you for ensuring I had a well-balanced meal at least once a day. Your feminism is truly

iii something to be emulated. Mom, you sparked a passion for history in me first. Thank you for always encouraging me to take pride in my interests and to lead an authentic life. To Danny, for being the best little brother a girl could ask for and lightening the load on the days that seemed too hard to handle alone. And to Anthony, for listening to me go on endlessly about a sixteenth century lawyer and never putting a stop to the happiness it brought me.

iv

For my Uncle,

Ben Robert Plumer

December 31, 1950 - December 12, 2019

v Table of Contents

Abstract ii

Acknowledgments iii

Dedication v

Table of Contents vi

Introduction 1 William Lambarde: Legal Antiquarian and Reformer 1 Law Humanism and Centralization in Tudor England 4 Lambarde and His Historians 9 Argument and Organization 13

Chapter One: A Handbook for The Crown 19 The Justice of the Peace in Tudor England 19 Eirenarcha and Other Handbooks 26 The Purpose of Eirenarcha: More than a Manual 29 Theory or Insight into the Justices of the Peace 35 Oath of the Justices of the Peace 48 Conclusion 51

Chapter Two: A Handbook for Justices of the Peace 53 Justices of the Peace in the Counties 53 The Use of Discretion on Behalf of the Justices of the Peace 56 The Maintenance of an Objective Approach to Law 63 Pre-Trial Procedure 71 Conclusion 83

Conclusion: Lambarde and His Legacy 85 Bibliography 92

vi Introduction

William Lambarde: Legal Antiquarian and Reformer

On April 24, 1582, William Lambarde (1536-1601) delivered a charge to the jury of the General

Sessions of the Peace at Maidstone, England.1 Commenting on the state of crime within the county, Lambarde acknowledged the pervasiveness of “sin of all sorts” and criticized those “put in trust with the execution of such laws” for not correctly administering justice and reporting on any wrongdoings brought to their attention.2 Lambarde instructed that the Justices of the Peace

(JPs) were expected to be the “mouth of the [queen’s] laws,” and were predominantly

“accountant to her majesty for the faults of [the] country.”3 By recognizing their duties,

Lambarde stressed the accountability of the justices and made them responsible for any crime that went unpunished. He also criticized the performance to the jury, made up of local officials who were responsible for searching and inquiring upon offences and informing the justices, as their shortcomings worked to hinder the execution of justice on behalf of the JPs. “But in the meantime,” Lambarde declared, “if you, seeing either will not see at all or but see through your fingers, then must we require at your hands not only that fault of your own willful blindness but also all such other offences as by your concealment do escape unpunished.”4

Lambarde’s charge speaks to the state of law enforcement throughout the rural countryside in late sixteenth century England. It shows Lambarde as a pivotal figure in the pursuit of establishing a more centralized and consistent system of criminal justice and local

1 The term “charge” refers to an exhortation given to the jury of the Sessions of the Peace. 2 William Lambarde, William Lambarde and Local Government: His “Ephemeris” and Twenty- Nine Charges to Juries and Commissions, ed. Conyers Read (Ithaca, NY: Cornell University Press, 1962), 68-69. 3 Lambarde, William Lambarde and Local Government, 70. 4 Lambarde, William Lambarde and Local Government, 70.

1 government. That same year, Lambarde reflected this goal more explicitly in his Eirenarcha: Or, of the Office of the Justices of the Peace (1582). This treatise was designed to be a handbook for the JPs (as the title in Anglicized Greek indicates “the office of the peace”) and provided them with an essential aid in fulfilling their duties. This thesis examines the work of Lambarde and his contribution to law reform in late Elizabethan England, particularly as revealed through the

Eirenarcha. Supporting my investigation of this important primary source are Lambarde’s twenty-nine charges, delivered to the Quarter Sessions from 1582, when Lambarde published

Eirenarcha, to 1600, the year before Lambarde's death. The charges offer insight into the

Eirenarcha, as they provide a more practical application of the reforms and criticisms he proposed in the handbook, and help to reveal the motivations behind his work and his role as a legal reformer. One of the chief reasons for the publication of Eirenarcha was to provide a solution to the inefficiencies and inaccuracies that persisted in the administration of law and justice by lay JPs. At a time when the law was neither rigidly applied nor uniformly understood,

Lambarde provided a comprehensive and consistent source of legal knowledge that acted as a bridge between the central government – the executive branch of government known as the

Crown, consisting of the regnant king or queen, his or her privy council, and other key office holders – at Westminster and the JPs in the localities, in order to enhance the Commission of the

Peace and centralize local government.

William Lambarde was an Elizabethan lawyer, jurist, JP, and antiquarian. He studied law at Lincoln’s Inn, one of the four Inns of Court for the teaching of the common law. During his time at the Inn, he developed a passion for the study of Anglo-Saxon laws and customs, compiling the first collection of the laws and customs of ancient Kent, and translating them from the Anglo-Saxon language into Latin. A Perambulation of Kent (1576), recognized as the earliest

2 county history, described the history and customs of the county and included a complete map indicating all the ancient sites dating back as far as the Roman Empire.5

Scholars have celebrated Lambarde for his pioneering effort in the translation of Anglo-

Saxon laws and customs (Archaionomia [Ancient Laws], 1568), which included a section on

Anglo-Saxon invasions, their kingdoms, as well as the laws of William the Conqueror and Henry

I.6 His work at the Inn was highly recognized and led to his promotion as Associate Bencher in

February 1579, demonstrating his contribution to the society.7 Shortly after, Lambarde published

Eirenarcha, which was initiated upon his first appointment to the Commission of the Peace in

August of 1579. Later in his career, he served as Deputy for Lords in the Alienations Office of the Queen’s Privy Council (1589), and as a Master in her High Court in Chancery and Deputy

Keeper of the Rolls (1597).8 In 1601, he acquired the position of Keeper of the Records in the

Tower of London from Queen Elizabeth I after diligently completing an index of the records upon her request, a position he held until his death in the same year.9

Lambarde believed that laws were immensely important to society and that since the laws and customs of the Anglo-Saxons had continued as the foundation of English law throughout the sixteenth century, he and his contemporaries needed to study the history of the Anglo-Saxon past in order to understand their society.10 By this right, Lambarde communicated his understanding

5 Wilbur Dunkel, William Lambarde, Elizabeth Jurist 1536-1601 (New Brunswick: Rutgers University Press, 1965), 39. 6 Retha M. Warnicke, William Lambarde: Elizabethan Antiquary, 1536-1601 (Chichester: Phillimore, 1973), 23. 7 Wilbur Dunkel, “William Lambarde of Lincoln's Inn,” American Bar Association Journal 46 (1960), 1339. 8 Wilfrid Prest, “William Lambarde, Elizabethan Law Reform, and Early Stuart Politics,” The Journal of British Studies, vol. 34, no. 4 (1995), p. 464. 9 Richard J. Terrill, “William Lambarde: Elizabethan Humanist and Legal Historian,” The Journal of Legal History vol. 6, no. 2 (1985), 175. 10 Warnicke, William Lambarde: Elizabethan Antiquary, 24-25.

3 of the law through the history of the English past. This aspect was fundamental to his work and will be further investigated throughout this study, as he often referred to historical legal decisions to fortify the legal knowledge that he sought to address.11

Law, Humanism and Centralization in Tudor England

The formative years of Lambarde’s life occurred at a time when England was adapting to the ongoing Protestant Reformation and its emergence as an independent nation-state. The study of

Anglo-Saxon culture was popular among many sixteenth-century scholars such as Lambarde and occurred in conjunction with the supremacy of national identity against old provincial ties. The emergence of nation states throughout Europe stimulated feelings of nationhood that motivated a desire in some to search the past in order to glorify one’s nation with historical examples that demonstrated the country’s enduring greatness, preeminence and uniqueness compared to

Continental Europe.12 The Reformation also generated a need to understand the past as Protestant and Catholic reformers strived to trace their origins with the use of historical sources.13 The removal of papal authority during the Reformation motivated an interest in England's history among scholars to provide evidence that the church in England had been misguided by papal direction. Those who offered a historical foundation for this theory provided a narrative that justified the Reformation and subsequent severing of ties to Rome. This justification allowed for a venerated interpretation of the Tudors, who had purged the land of idolatry.14 What resulted

11 J. D. Alsop, “William Lambarde (1536-1601),” in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004). 12 Warnicke, William Lambarde: Elizabethan Antiquary, 25. 13 Terrill, “William Lambarde: Elizabethan Humanist,” 157. 14 Warnicke, William Lambarde: Elizabethan Antiquary, 25.

4 was a surge of historical writing aimed at uncovering the past, and the legal profession played a significant role in contributing to the cultivation of this historical scholarship.15

At the center of this movement was a group of men historians have referred to as legal humanists.16 These men appear in England at the time of Henry VII (r. 1485-1509), and they sought to recover the knowledge of the ancient past to bring back the historical foundations of the law. Many English legal humanists were common law lawyers and were mainly concerned with improving the procedure of the common law. Historians focusing on the work of English legal humanists have established their findings on England's relation to Continental Europe and the processes of change that both England and the rest of Europe experienced in the construction of a formal body of law. The English common law was unique to England and contrasted with the customs of the remainder of Europe.17 Dating as far back as the twelfth century, Roman civil law, a body of law that was codified by order of the Emperor Justinian, had been received by most parts of Europe, including Italy, France, Germany, Spain, Portugal, the Netherlands, and

Scotland.18 England did not accept this legal code but rather instituted a different form and custom that came to be known as the common law.19 Studies on the distinctions between English and Continental law date back to the fourteenth century with John Wycliffe’s Tractatus De

Officio Regis (1379), which sought to declare the office of the king and to distinguish the powers

15 Terrill, “William Lambarde: Elizabethan Humanist,” 157. 16 C.P. Rodgers, “Humanism, History and the Common Law,” Journal of Legal History 6, no. 2 (1985), 133. 17 Rebecca Brackmann, The Elizabethan Invention of Anglo-Saxon England: Laurence Nowell, William Lambarde, and the Study of Old English (Cambridge: D.S. Brewer, 2012), 24. J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (New York: Norton, 1967). 18 Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 67. 19 Helgerson, Forms of Nationhood, 65.

5 of the monarch from the sacerdotal.20 In addition to this, a century later, Sir John Fortescue composed his De Laudibus Legum Angliae (1470), which elicited the differences between

English law, absolute monarchy and civil law.21 These early English writers initiated an insular movement, which motivated and fortified an English “juridical nationalism” in the latter part of the sixteenth century.22 Not only was Lambarde a product of his time, but also he and many others following this movement addressed themselves to the study of English legal history to commemorate and solidify England's origins by connecting the medieval past with the present.23

Lambarde was also writing at a time when ideas of proper political order were a point of contention, with many political commentators voicing their opinions about the power of the state and the maintenance of social order. The reasons for this surge of political theory throughout the sixteenth century can be directly linked to the abiding problems faced by the Crown in opposition to Parliament. Elizabethan England was ripe with religious dissent, both Protestant and Catholic. Newly emerging issues of the 1570s found their beginnings in the early stages of the Reformation and the decisions of Henry VIII, which initiated a chain reaction that radically restructured the national religious life of his daughter’s reign. Elizabeth’s accession to the throne sparked tensions in the north among the northern nobles who had remained Catholic, as her

Protestant faith prompted Protestant nobles to key positions of government to the exclusion of

Catholics. The arrival of Elizabeth’s cousin, Mary, Queen of Scots, further exasperated the

20 Helgerson, Forms of Nationhood, 69. For more on John Wycliffe’s De Officio Regis, see Ben Lowe, “Teaching in the Schole of Christ: Law, Learning, and Love in Early Lollard Pacifism,” The Catholic Historical Review 90, no. 3 (2004): 405-438. Here, the term “sacerdotal” refers to a priest, or priesthood, as to emphasize the powers of the priest as mediators between God and mankind. 21 Helgerson, Forms of Nationhood, 69. 22 Rodgers, “Humanism, History and the Common Law,” 135. 23 Ken MacMillan, “English Law and Its Expansion,” in Oxford Handbook of European Legal History, ed. Heikki Pihlajamaki, Markus D. Dubber, and Mark Godfrey (Oxford: Oxford University Press, 2018), chap. 36.

6 Catholic problem and eventually led to the Northern Rebellion of 1558. Mary, a Catholic, had legitimate claims to the English throne. This resulted in the Ridolfi Plot, which was led by a

Northern Rebellion supporter Robert Ridolfi in an attempt to invade England with an army from the Netherlands and Spain and murder Elizabeth in order to secure Mary’s succession to the throne and Catholic restoration. A lack of Catholic support in England ultimately led to the failure of the plot and the execution of its lead supporter, the duke of Norfolk. In addition to the arrival of Jesuits in England, Elizabeth demonstrated very little tolerance to Catholics from the

1570s onward. This ultimately brought about the creation of punitive “recusancy acts,” which made it illegal to attend Catholic mass, convert to Catholicism, or harbor Catholic priests, and prescribed penal measures ranging from fines, imprisonment, or death, that it was sometimes the job of JPs to enforce.24 As these events demanded the attention of the central government, the

Crown increasingly looked to its officials in the counties to enforce peace and lawful order. With an increasing emphasis now placed on the maintenance of social order, it is no coincidence that these events coincide with a surge of legal writing and a push towards more developed judicial administration.

Lambarde and other legal humanists were central figures in the process of state formation, particularly on the operations of local government, the centralization of state power, and a growing bureaucracy. A former generation of historians, among them A.F. Pollard and

Geoffrey Elton, argued that the early Tudor monarchs and advisors engineered a “revolution in government” that transitioned England from medieval to early modern traditions. More recently, historians argue that it was only in the Elizabethan period, rather, that this transformation fully

24 Ken MacMillan, Death and Disorder: A History of Early Modern England, 1485-1690 (Toronto: University of Toronto Press, 2020), chap. 4.

7 developed.25 Michael Braddick argues that the processes of state formation in the early modern period continued well into the seventeenth century. He argues that the development of an English nation-state and government depended on the voluntary actions of local elites, whose political authority within the localities was a useful resource.26 Braddick states that any movement towards “centralization” of government involved the “development of more extensive regulation of various aspects of social life and a consequent increase of the distributive power of those in coordinating positions.”27 In other words, state formation in early modern England was the process of “organized social power.”28 Throughout the Tudor period, the central government increasingly depended on the authority of unpaid local officials who acted as mediators between the center and the locality. If “state” is understood as a combination between the central administration and local elites, then the process of state formation can best be articulated through a study of the effectiveness of the policies that were implemented.

This study focuses on the development of judicial administration in the localities as a key factor in the process of centralization of local government, leading to state formation. Lambarde's

Eirenarcha sheds light on the policies that were implemented by the Crown and how the authority of local elites, in this case, JPs, was engineered to enforce and uphold the desires of the central government throughout the counties. Lambarde was critical of how judicial administration was being conducted throughout the counties and offered a way to centralize the system to enhance the effectiveness of local government through his Eirenarcha.

25 A. F. Pollard, Henry VIII (1905; repr., New York: Harper Torchbooks, 1966). G. R. Elton, The Tudor Revolution in Government: Administrative Changes in the Reign of Henry VIII (Cambridge: Cambridge University Press, 1953), 7. 26 Michael Braddick, State Formation in Early Modern England, c. 1550-1700 (Cambridge; New York: Cambridge University Press, 2000), 340. 27 Michael Braddick, “State Formation and Social Change in Early Modern England: A Problem Stated and Approaches Suggested,” Social History 16, no. 1 (1991), 12. 28 Braddick, “State Formation and Social Change,” 2.

8 Lambarde and His Historians

While most scholarly work on Lambarde mention the Eirenarcha (1582), none have provided an analysis of the work itself and its effects on the centralization of judicial procedure. Furthermore, while historians frequently refer to Lambarde in reference to sixteenth century law, he is often portrayed in direct relation to the work of his mentor, antiquarian Laurence Nowell (1515-1576).

As a result, the majority of scholarly interest in Lambarde has assessed his contribution to

English legal history through the lens of his antiquarian pursuits, with little attention to his role as an active legal commentator and reformer.

Two biographies have been written about Lambarde, both older works emphasizing his passion for ancient manuscripts as the driving force of his endeavours. Wilbur Dunkel, author of

William Lambarde, Elizabethan Jurist (1965), stated that although Lambarde’s signature appears on numerous legal documents and writs of the time, “his concern for the law became secondary” as his interests turned from legal matters to antiquarian studies.29 Additionally, Dunkel stated that

Lambarde’s admittance to Lincoln’s Inn to study law introduced him to individuals who furthered his true passion for manuscripts, arguing that his interests rested there “rather than in the courtroom.”30 Dunkel proclaimed that Lambarde thought that the laws of England were good the way they were and required no change, arguing that he was not a reformer of the law, but rather a standardizer.31 While Lambarde did indeed encourage a standardization of the law, he was highly critical of the judicial system in place. He supported a standardization of the legal workings of local government to adhere to his own opinions and guidance that, in some cases, differed from the established form.

29 Dunkel, William Lambarde, Elizabethan Jurist, 36. 30 Dunkel, William Lambarde, Elizabethan Jurist, 28. 31 Dunkel, William Lambarde, Elizabethan Jurist, 64.

9 As the title of the biography by Retha Warnicke – William Lambarde: Elizabethan

Antiquary (1973) – suggests, Lambarde is often portrayed as an antiquarian first and foremost.

While Warnicke mentions Eirenarcha, this is only done to explain that it was a handbook for the

JPs, became the basis for other handbooks for JPs, or is used to shed light on Lambarde's role as a JP within the commission. Warnicke does not go into great detail into the contents of

Eirenarcha and never suggests that Lambarde was any type of legal reformer, or that any of his work pursued a critical assessment of the law or judicial administration. Rather, Warnicke focuses on the complexities of Lambarde's life and career, consistently referring to him as “the antiquary” whose “activities as a barrister and as a justice did not prevent him from continuing his scholarly pursuits.”32An investigation of Eirenarcha will reveal that the question is not whether Lambarde's work as a lawyer and JP deterred him from his scholarly endeavours.

Rather, Lambarde's knowledge of history and the laws of England equipped him to develop critical opinions of the commission, aiding him throughout his endeavours to push for judicial reform. This study will show how Lambarde was not merely “the antiquary” but rather an active legal commentator and player in the centralization of Elizabethan local government.

An earlier article on Lambarde also reiterates the narrative of the Anglo-Saxon scholar, interpreting Lambarde's life and work as primarily antiquarian. Richard J. Terrill argued that

Lambarde was one of the least appreciated legal historians of the Elizabethan age, and stated that

Lambarde’s work and career represented a movement only in English historical scholarship, focusing primarily on how Lambarde's knowledge of the law contributed to the development of the study of the past rather than emphasizing Lambarde as a pivotal figure within the centralization and systematization of law enforcement and local government in the early modern

32 Warnicke, William Lambarde: Elizabethan Antiquary, 84.

10 period.33 As this study will show, Lambarde was not only a scholar, but was an important figure in the movement towards legal centralization, as fundamentally demonstrated through his

Eirenarcha.

According to Wilfred Prest (1985), all studies on Lambarde had reflected the image of a

“good and honest Lambarde,” a phrase reportedly used to characterize him by Queen Elizabeth I at the conclusion of their famous meeting, weeks before his death.34 Prest argues that the image of a humble, yet contentious Elizabethan JP had undermined the evidence that showed that

Lambarde was much more than “a remote ivory tower scholar.” Instead, Lambarde was a

“significant political commentator and critic,” who participated within and reported on the political climate of his time.35 Prest, however, never utilizes the Eirenarcha, but rather focuses on a manuscript tract signed in Lambarde's hand titled, “Against Auricular Information of

Judges” (1590). In the tract, Lambarde highlighted the impartiality of the justice system and condemned the unethical behaviours of Elizabethan judges as witnessed through their patronage.

Prest argued that Lambarde’s critique sheds light on a common narrative in early modern history that speaks to a “world of status differentiation and vertical client-patron relations.”36

Prest acknowledged the fact that Lambarde did not concede the corrupt dealings between the judicial bench and litigation parties within this tract. Aside from the evidence of Lambarde's charges to the juries at Quarter Sessions, Prest did not offer other evidence before 1590 to demonstrate that Lambarde actively sought to revise the role of a judge outside of this particular work. Instead, Prest sought to illustrate how Lambarde's testimony highlights the “law's human and institutional context,” that contributes to the contemporary opinion on the morality of

33 Terrill, “William Lambarde: Elizabethan Humanist,” 162. 34 Prest, “William Lambarde, Elizabethan Law Reform,” 465. 35 Prest, “William Lambarde, Elizabethan Law Reform,” 465. 36 Prest, “William Lambarde, Elizabethan Law Reform,” 469.

11 judicial administration and legal practices in the early modern period.37 While Prest argued that it would “never again be possible” to portray Lambarde as a “mere minor state functionary and scholarly bit-player,” he did acknowledge that the process of reinterpretation “still [has] some distance to go.”38 In this respect, this study contributes to the narrative of Lambarde as more than the scholarly antiquary. Not only was Eirenarcha much more than a guide for JPs, but it also provided the central government with an understanding of discrepancies in the way law was being administered throughout the counties to encourage a revision of the commission and thereby, more effective local government.

In the most recent work on Lambarde, Rebecca Brackmann focuses primarily on how

Lambarde and Nowell provided a scholarship that laid the foundations of England's history in the medieval past, specifically the portion of history between the Germanic invasions and the

Norman Conquest.39 Brackmann asserts that the notion of attributing the period after the

Germanic invasions and before the Norman Conquest, as “Anglo-Saxon England” was a concept developed by “Tudor researchers.”40 Brackmann argues that Lambarde’s Anglo-Saxon studies contributed to the procedure of categorizing the past, along with the process of national identity formation. By affiliating the Anglo-Saxon text with a complex identity of “Englishness,”

Lambarde was able to promote a sense of nationalistic sentiment through the study of Anglo-

Saxon “law, language and landscape.”41 Once again, following the previous scholarship on

Lambarde, Brackmann emphasizes Lambarde as an antiquarian first and foremost, leaving the

37 Prest, “William Lambarde, Elizabethan Law Reform,” 473. 38 Prest, “William Lambarde, Elizabethan Law Reform,” 466. 39 Brackmann, The Elizabethan Invention of Anglo-Saxon England, 3. 40 Brackmann, The Elizabethan Invention of Anglo-Saxon England, 2. 41 Brackmann, The Elizabethan Invention of Anglo-Saxon England, 25.

12 reader to conclude that Lambarde’s work was something purely historical in nature rather than as a form of critical legal commentary and revision.

While half of her study focuses on the work of Lambarde, Brackmann devoted only one chapter solely to him apart of his work with Nowell, focusing primarily on A Perambulation of

Kent (1576) rather than on Lambarde's more law-based material. Brackmann states that while

Lambarde designed Eirenarcha to be a manual for JPs, it provided the juries of the Sessions of the Peace a means to “appreciate the antiquity of their tradition,” as it provided a source that allowed them to conceptualize their role in the history of the English common law.42 While

Lambarde undeniably sought to place the role of the JPs within the historical past, this interpretation offers an obscure view of his use of historical legal precedents, while undermining his role as a critical legal commentator and reformer. An investigation of Lambarde's Eirenarcha shows the way that Lambarde applied the history of the English common law as a means to actively highlight discrepancies within the Commission of the Peace to evoke greater change within the commission and a more efficient means of local law enforcement and governance.

This analysis will show how Lambarde was critical of the law and played a more central role in legal reform than has been demonstrated by historians to date.

Argument and Organization

I will contribute to the scholarship of legal reform and state formation in the early modern period by investigating the relationship between the Tudor Crown – the royal authority that appointed the JPs – and the counties outside of central London where they worked and exercised their duties on behalf of the Crown. Especially in the first part of Eirenarcha, Lambarde provided a

42 Brackmann, The Elizabethan Invention of Anglo-Saxon England, 201.

13 form of legal knowledge that advised the JPs of their duties to the Crown, while also highlighting long-standing errors within the commission to improve the office on behalf of the central administration. “Eirenarcha” is derived from the Greek “Eiren” meaning peace, and “Archos,” which refers to a leader or chief. “Eiren-archen” correspondingly referred to an officer of the peace in Byzantine and Ecclesiastical circles. According to William Renwick Riddell, Lambarde gave the Greek type, calling the possessor of it “Commissioner of the Peace,” with the intent of expressing that every JP be “Eirenarchen” while also emphasizing “Eirenopoion” that is a

“compounder” or maker of the peace. Riddell argued that the word Eirenarcha was clearly made by Lambarde himself to denote “the function of the Justice of the Peace, not just the Justice of the Peace himself.”43 By this right, it is clear that Lambarde sought to include those responsible with the management and maintenance of the Commission of the Peace, as well as the JP who were appointed by the latter for the execution of the peace.

In developing this argument, I will be focusing on a facsimile of the first edition of

Eirenarcha, which includes a copy of a letter Lambarde addressed to Lord Chancellor Sir

Thomas Bromley (1530-1587), to whom he devoted the handbook. This letter reveals the reason why Lambarde wrote the Eirenarcha, while also highlighting his relationship to the lord chancellor, suggesting Bromley’s involvement in the commissioning of the guide. As chancellor,

Bromley was responsible for recommending the men appointed to the Commission of the Peace.

Evidence from Eirenarcha suggests that he may have approached Lambarde with the prospect of constructing a handbook for JPs to help inform the central government of a justice's historical role and duties. The first edition of Eirenarcha demonstrates that Lambarde intended to produce

43 William Riddell, "Eirenarcha, An Ancient Law Book," American Bar Association Journal 19 (1933), 298.

14 a shift in the Commission of the Peace from the beginning. Lambarde’s Eirenarcha provides evidence of his efforts to not only construct an accessible form of legal knowledge for the consultation of JPs but also to devise a tool of communication that informed the central government of discrepancies within the form and function of the Commission of the Peace and ways to amend those errors.

In the first book of Eirenarcha, Lambarde began with the theory, or insight of the role of a JP, and established the form and function of the office of the peace based on the historical foundations of the commission. Once that was dealt with, he moved into the practical issues of a

JP's duties outside of the Quarter Sessions as a means to offer examples for how JPs should apply this theory in practice. John H. Baker claimed that when describing a legal system, there are two ways to go about doing it. The first is to present the “theoretical conception,” that is, the abstract rules devised and adhered to by legal authorities. As far as the theory relies on legal precedents, however, it then must also reflect reality. Therefore, the second mode of description relies on observation, as a true understanding of a legal system, while it can be articulated theoretically, can only be obtained through experience. Baker stated that, while “recorded events are preferred to the theoretical explanations of the lawyer or the commands of the lawgiver,” when describing a legal system, these two modes must not always be at odds with one another, as

“anyone describing a legal system must consider and compare both theory and experience.”44 As

I will demonstrate, this method allowed Lambarde to not only provide insight into the way the commission should function theoretically, but also to isolate discrepancies in the law and areas where inconsistencies existed in order to offer his own advice to remedy any problems that hindered a proper function of local government. This study consists of two chapters, the first

44 John H. Baker, “Criminal Courts and Procedure at Common Law 1550-1800,” in Crime in England 1550-1800, ed. J.S. Cockburn (London: Methuen, 1977), 15.

15 addressing the theoretical knowledge as put forth by Lambarde in book one of Eirenarcha, and the second analyzing the way he sought to apply this theory in practice by describing the actual role of the lay JP outside of the Sessions of the Peace.

In the first chapter, I will discuss the social and political climate in the counties, and the development of local government on behalf of the JPs, starting from the commission's inception in 1356 to the end of the Tudor period. The justices originated as a means to keep the peace and execute the law on behalf of the Crown. Many were men of nobility and in addition to serving as

JPs, also ran for parliamentary election. The sixteenth century witnessed growing tensions between the queen and her parliaments who often acted the pander for the queen, continually pressing her for marriage as oppose to focusing on their duties to the Crown. The duties of a JP, especially during the 1500s, were many and diverse. They were responsible for maintaining law and order throughout the rural countryside, and while working individually, held the power to investigate crime, bind an accused to appear in court, or imprison them to await trial. Justices assembled four times a year at county Quarter Sessions, and here they had the authority to hear and determine all minor criminal cases. JPs were also heavily impeded with numerous administrative tasks, which included the regulation of the trade of grain, overseeing road repairs, and overseeing tax increases. Over time, developments within the commission led to the expansion in the number of JPs per county, which further increased the number of statutes allocated to their responsibilities. The expansion of the commission throughout the Tudor period worked to create inconsistencies within the way law was administered throughout the counties, hindering the Crown's ability to ensure that their influence was upheld in the realms of local government.

16 While many guidebooks were published addressing the role of JPs prior to Lambarde’s

Eirenarcha, they were difficult for the average JP to read. The majority was written in Latin or

Law French, making them virtually unusable for the ordinary JP who could not read either language. As a result, the handbooks published for JPs prior to Eirenarcha received very little success. In addition to their lack of readability, many were poorly organized. They did not include all of the statutes allocated to the responsibilities of the JPs, further emphasizing the need for a proper guidebook. As I will demonstrate, not only did Lambarde's Eirenarcha surpass these other handbooks in terms of both readability and content, but also it was widely read and reprinted several times from the end of the sixteenth century. An investigation of Eirenarcha will demonstrate how Lambarde's discussions were not only useful to lay JPs but, moreover, were clearly directed to the central government. Lambarde went into great detail discussing the history of the Commission of the Peace, the historical role of a JP, and the types of men that should be appointed, all the while drawing on historical legal decisions to provide weight to his arguments.

This will demonstrate how Eirenarcha was not only a guide for JPs, but more significantly, how it was a tool of communication that informed the Crown of the way the commission should be structured, managed, and maintained. Lambarde's antiquarian background provided him with the expertise to offer insight into the history of the common law in England. Still, also, it enabled him to pinpoint inefficiencies in the law and offer recommendations to the way that judicial officials administered the law in order to enhance the commission and centralize local government.

In chapter two, I will take a deeper look at the contents of Eirenarcha, specifically the duties of a JP outside of the Sessions of the Peace. In the letter to Bromley, Lambarde revealed that he had written the Eirenarcha specifically for justices working individually, without the help

17 of their learned companions. Justices within the Sessions were often those who were members of the quorum, learned in the law, and presumably better equipped with an understanding of the functions of judicial administration. Therefore, I will focus on the duties of a lay JP out of

Sessions, that is, the role of a JP not trained in the law, up to the point when a presentment was offered to a Grand Jury for indictment. The hallmark of a lay JP's role was his use of discretion when it came to discerning the types of crimes committed and the appropriate treatment and punishment of an offender. I will show how Lambarde sought to mediate the discretionary authority of the JPs to eliminate any corruption present in the commission, while also offering specific definitions for different types of crimes for JPs to better assess the elements of a criminal offence and appropriately apply their discretion. This chapter reveals that Lambarde was critical of the function of the law and judicial administration and sought to enhance the commission by offering advice and recommendations to the way that JPs administered the law within the localities. I will demonstrate how Lambarde offered a means to centralize the system of local government in the localities, proving Lambarde to be more than a legal scholar as historians have suggested, but also a pivotal figure in the process of state formation in early modern England.

18 Chapter One

A Handbook for the Crown

The Justice of the Peace in Tudor England

The foundation of Elizabethan local government was the Commission of the Peace and the men who made it function, the Justices of the Peace. Throughout the sixteenth century, local government operated between two focal points: At the center were the Crown, Parliament, and the royal courts of King's Bench and Common Pleas at Westminster; in the periphery were the county courts where JPs administered local government.1 JPs worked strictly within the counties, away from the centers of power and authority at Westminster and offered the Crown a more direct means of ensuring that national statutes were carried out at the local level. These men worked within the counties they lived in, as they were acquainted with the local customs and traditions, with the idea being that they could apply the law to the unique circumstances of their county. Justices were drawn from the local population and acquired their positions by royal appointment, through inheritance from deceased relatives, or by the authority of their rank in society. They were not paid for their services but rather worked voluntarily, and as a result, the nature of their jurisdiction and authority operated haphazardly. Since the central government did not support the livelihood of these officials, the center's control and influence in the counties was very limited. Moreover, because justices were located away from the centers of power of London and Westminster, the operation of local government in the counties was partially autonomous.

Historians have defined the Crown's influence in the early modern period as lacking a “strong

1 On the concept of center and periphery, see Michael Braddick, State Formation in Early Modern England, C. 1550-1700 (Cambridge; New York: Cambridge University Press, 2000), and Ken MacMillan, The Atlantic Imperial Constitution: Center and Periphery in the English Atlantic World (New York: Palgrave Macmillan, 2011), chap. 1.

19 centralized bureaucracy,” with a “weak-state” model of government that encouraged very little interference from the center. The Crown feared that too much interference or surveillance on their part would discourage men from properly attending to their duties.2 Over time, however, as the country faced times of war, England increasingly depended on JPs to maintain peace and lawful order within the localities, which as a result, further increased their power and the weight of their jurisdiction.

The rise of the JPs in the sixteenth century corresponds closely with the processes of centralization starting from the end of the fifteenth century, with the removal of the county court and hundred. Pleas of the Crown, originally the job of county sheriffs, were passed on initially to ad hoc commissioners and then to the justices, with the remaining powers of sheriff's tourns

(court presided over by the sheriff twice a year) passed on to the responsibility of the commissions. The Crown's effort to centralize the processes of local government resulted in the removal of the powers of the sheriff, placing it into the hands of the Commission of the Peace.

While the local customs of the counties endured within the operations of judicial administration, the Crown routinely ignored the existence of county assemblies, adding new duties of various sorts upon the JPs. 3

During the fifteenth and sixteenth centuries, the five Tudor monarchs increasingly expanded on the responsibilities of JPs. They delegated a great many statutes to their keeping such that by the end of the sixteenth century the Crown had completely redefined the expectations for their office. The foundations for the authority of a JP were complex. They rested upon a perplexing combination of the common law, a growing volume of statutes, and the charge

2 MacMillan, The Atlantic Imperial Constitution, 12. 3 John H. Baker, An Introduction to English Legal History, 5th ed. (Oxford: Oxford University Press, 2019), 29.

20 delivered at Quarter Sessions.4 During the reign of the Tudors, the responsibilities allocated to

JPs nearly doubled from the fourteenth century, with the first increase of statutory obligations starting in 1495 under Henry VII. Here the Commission of the Peace was granted the right to hear and determine all statutory offences excluding felony. During this time, the Crown passed a total of twenty-one statutes out of 192 that concerned the role of a JP.5 By the time of Edward VI

(r. 1547-53), sixty statutes of relevance to the role of the justices were passed, including one that ordered all indictments transferred to the JPs at their next Sessions.6 By the end of the reign of

Mary I (r. 1553-58), an additional thirty statutes were passed, which included the well known

“Marian pre-trial procedure,” and involved JPs in the work of reinforcing criminal prosecution.

The Marian statute gave JPs the responsibility of issuing search and arrest warrants. Also, it required them to take pre-trial dispositions, that is, the ordering of jail deliveries of an accused and the gathering of information before trial. The statute instructed JPs to “take the examination of such prisoner, and information of those that bring him, of the fact and circumstance… as much thereof as shall be material to prove the felony.”7

By 1597, Elizabeth I (r. 1558-1603) had added seventy-five statutes addressing the responsibilities of the justices, the most statutes passed of all the Tudor monarchs. As a result, in

1599, of the 306 enactments that required the attention of the JPs, over 170 statutes were introduced during the Tudor period alone.8 By the time Lambarde wrote Eirenarcha, 176 statutes had been introduced to the office of the JPs since its inception in 1356, completely redefining the

4 Jack Robert Lander, English Justices of the Peace, 1461-1509 (Gloucester: Sutton, 1989), 7. 5 Lander, English Justices of the Peace, 7. 6 Lander, English Justices of the Peace, 7. 7 2 & 3 P&M, c. 10 (1555), quoted in John H. Langbein, The Origins of Adversary Criminal Trial (New York: Oxford University Press, 2003), 41. 8 Braddick, State Formation in Early Modern England, 31.

21 original role and function of the commission.9 A single JP had summary jurisdiction over a wide range of misdemeanours, including the maintenance of quarrels (1 Ed. III, c. 14), and the punishment of vagabonds “by the said pain of a Hundred shillings,” (12 Rich. II, c. 10). In addition to preventing disorder in alehouses, they also had the power to “remove, discharge and put away common selling of (unlicensed) Ale and Beer” (5&6 Ed. VI, c. 25).10 The Crown granted several administrative tasks to JPs, which often revolved around sumptuary laws such as the maintenance and increase in the production and trade of grain (5 Eliz. I, c. 2), or the maintenance of the consumption of fish aside from days of religious observance (5 Eliz. I, c. 5).

These powers were subordinate to those wielded by the members of the commission acting together, known as the bench. Here the bench could try for “murder, assault, burglary, witchcraft, disorderly conduct, vagrancy and a host of minor offences,” however, these cases were predominately heard by the Assizes, especially after the 1530s.11

As the number of statutes impacting their duties rose, JPs became increasingly more hampered by a general lack of knowledge as to the exact statutes that applied to their commissions. To make matters more difficult, the central government often haphazardly issued additional commands to the office by writ, and individual clerks of the peace included variations to the charges delivered to the grand juries at Quarter Sessions, which altered the meaning of different statutes within certain counties.12 The sum of this worked to significantly extend the powers of authority of JPs in the affairs of local government. Therefore, with an ever-growing

9 James A. Sharpe, Crime in Seventeenth-Century England: a County Study (Cambridge: Cambridge University Press, 2008), 28. 10 The full text of all statutes discussed in this thesis can be found in Statutes of the Realm, Printed by Command of His Majesty George III (Great Britain House of Commons, 1800-1819), which be found in the Hein Online database. Consistent with modern conventions, all statutes will be referenced using regnal year, monarch, and chapter (eg., 1 Edw. III, c. 14). 11 Braddick, State Formation in Early Modern England, 31. 12 Lander, English Justices of the Peace, 11.

22 number of statutes, various additions of ad hoc instructions, and added regional variations, by the middle of the sixteenth century, it is doubtful that the justices had any exact notion of what their job entailed.13

Additionally, and arguably a result of these legislative changes, there was a general increase in the number of JPs appointed to the commission. David Loades stated that during the reign of Henry VII, the number of justices per county averaged between seventeen and eighteen throughout the commission.14 By the end of Elizabeth's reign, the number of justices had increased to thirty or forty in each county.15 Loades suggests that this increase may have been partially due to men seeking these positions for social and political gain.16 Similarly, Geoffrey

Elton argued that the increase of men to the Commission occurred in order to accommodate “all those of the nobility and gentry who felt it their right to take a share in government.”17 With an appointment to the Commission of the Peace bringing with it an elevation in one's social standing, historians have argued that many sought a spot on the commission solely for this purpose. Over time, however, as some local courts began disappearing throughout the sixteenth century, especially those of the church courts and manorial courts, the number of duties attributed to the JPs increased. With more duties allocated to their responsibilities, the commission required more men to do the job.

This increase ultimately led to degradation in the quality of men appointed as JPs, further affecting the administration of justice within the localities. A statement issued by the lord keeper

13 Lander, English Justices of the Peace, 11-12. 14 David Loades, Politics and the Nation, 1450-1660: Obedience, Resistance and Public Order (London: Fontana, 1979), 122. 15 Geoffrey R. Elton, England under the Tudors (London: Routledge, 1991), 418. 16 David Loades, Tudor Government: Structures of Authority in the Sixteenth-Century (Oxford: Blackwell, 1997), 124. 17 Elton, England under the Tudors, 418.

23 of the privy seal, Sir William Cecil, demonstrates evidence supporting this view, who in 1595 revealed that “The number of justices of the peace are grown almost infinite to the hindrance of justice… there are more justicers than justice … many insufficient, unlearned, negligent and undiscreet.”18 There is evidence of concerns from the Crown, however, regarding the potential misconduct of JPs towards their responsibilities, as the central government attempted to become more involved in the affairs of their local officials.

J.R. Lander argues that despite the numerous statutes that imposed additional powers and duties upon the JPs, the government's confidence in their justices was inauspicious. Evidence indicates that the Crown took steps to ensure that JPs properly executed their duties according to the needs of the central government. In the medieval period, statute 3 Hen. VII, c. 12 expressed the king's dissatisfaction with the inefficiency and partiality of the JPs. It imposed a stipulation in the king's name that at each Quarter Session, all those distressed with the behaviour of a JP were invited to announce their grievance to other JPs.19 The enactment assured that if the charges were proven, the guilty party would be dismissed from the commission and further punished.20

Similarly, 7 Hen. VII, c. 4, proclaimed that a “Justice failing to execute his Commissions should be put out of the Commissions and further … punished according to his demerits,” demonstrating how the central government strived to reduce any misdealing with regards to the administration of the law.21 By the sixteenth century, the Crown passed additional statutes to combat any potential acts of partisanship amongst the JPs, including the Marian bail statute of

18 Joel Hurstfield, “Political Corruption in Modern England: The Historian’s Problem,” History 52, no. 174 (1967), 16. 19 Lander, English Justices of the Peace, 165-166. 20 Lander, English Justices of the Peace, 165-166. 21 Warnicke, William Lambarde: Elizabethan Antiquary, viii.

24 1554-55, which imposed fines on JPs who wrongfully bailed accused felons for personal gain.22

Despite the central government’s attempts to combat any mishandlings, however, very few of the enactments were ever fully carried out. In the end, the central government lacked an effective system of inspection and retribution of aberrant justices, and as a result, these sanctions were rarely employed. More significantly, with a general lack of alternative candidates for the commissions, the central government was concurrently hesitant to act upon the employment of such penalties in fear of depleting the ranks of justices and abandoning the Crown’s business.

Nevertheless, the enactments made to prevent any misconduct on the part of the JPs provide supporting evidence of potential negligence in the performance of their duties.

Lambarde, as a fellow JP, was privy to the general lack of awareness of the JPs with regards to the law and their duties. Moreover, the situation at hand brings to light the frustration behind his charge delivered to the juries at Maidstone in 1582. The disadvantage of a JP’s lack of exact legal knowledge hampered the entire system of local government. In combination with the growing number of statutes and an increased sense of responsibility, without a readily available means of acquiring knowledge of the law, the function of administration and justice in the counties was conducted in an atmosphere of immense imprecision at best.23 Upon his admission to the Commission of the Peace in 1579, Lambarde would have quickly realized the limiting nature of legal rhetoric obtained outside of the Inns of Court and its effect on working JPs, who often had to toil in isolation without the convenience of any learned clerks or companions to consult. The dysfunction of the office of the Peace was a major factor for Lambarde in the development of the Eirenarcha, revealing this concern as he questioned, “how many Justices

22 John H. Langbein Prosecuting Crime in the Renaissance: England, Germany, France (Clark, N.J: The Lawbook Exchange, 2013), 8. 23 Lander, English Justices of the Peace, 173.

25 (think you) may not suffice (without breaking their backs) to bear so many, not Loads, but Stacks of Statutes, that have since that time been laid upon them?”24 It was clear to him that what was desperately needed was a vade mecum, a handbook for the justices to consult that provided them with everything they needed to know in order to carry out the work the Crown expected of them.

Eirenarcha and Other Handbooks

Eirenarcha: Or of the Office of Justices of Peace was first published in 1582 and revised in

1588. Lambarde originally put forth the manual in the form of two books, but later expanded the handbook into four to provide additional information regarding the powers of a single justice out of the Sessions, such as the handling of recognizances and remands.25 The handbook was widely read and reprinted several times throughout Lambarde’s lifetime, remaining popular well into the seventeenth century, with its twelfth edition appearing in 1619, nearly forty years after its original publication.26 The manual’s initial print run of 1500 copies (exceptionally large for the time) was exhausted within a year and went through two more rounds of printings before the second edition was published. One contributing factor to the success of Eirenarcha was

Lambarde’s decision to write in the vernacular, a very humanist application. Compared to his previous book, Archaionomia (1568), which he wrote in Latin, Lambarde wrote Eirenarcha in

English, making it available for use to a far wider-ranging audience. This decision suggests that

Lambarde's previous work was, therefore, written for a different audience than Eirenarcha, as it is unlikely that JPs not formally trained in the law or educated at the universities were well versed in Latin.

24 William Lambarde, Eirenarcha: Or, the Office of the Justices of the Peace (London: Professional Books, 1972), 38. 25 Boyer, “The Justice of the Peace In England and America,” 316. 26 Raymond J.S. Grant, Laurance Nowell, William Lambarde (Amsterdam: Rodopi, 1996), 21.

26 Additionally, before the year 1600, many English legal scholars wrote in Law French, a unique language used in the royal courts that differed considerably from the old Norman

French.27 Due to the limited sources available for JPs to learn the law, the fact that Lambarde wrote Eirenarcha in English and not Law French demonstrates a conscious decision to create a handbook that would reach, not only those not trained in the study of the law but also, individuals beyond both the legal and intellectual realms. Lambarde was a product of the legal humanist tradition, being a legal antiquarian himself, and this decision goes hand in hand with the efforts of legal humanists at the time. As Richard Helgerson wrote: “to fashion competent governors, and obedient, productive, citizens” was best accomplished by using the language most gentlemen would have understood.28

While Lambarde’s handbook was widely celebrated throughout the later sixteenth century, it was continually reprinted long after his death in 1601, demonstrating its lasting use and impression on future JPs. Prior to the publication of Eirenarcha, several other guidebooks for JPs appeared at the beginning of the sixteenth century. The first manual for JPs, The Boke of

Justices of Peas (1506), contained a list of all the statutes of their office from the fourteenth century in the reign of Edward III (r. 1327-77), up until the time of the book’s publication in the reign of Henry VII (r. 1485-1509). Although the manual was published anonymously, it was widely read and continuously re-printed from 1506 up until 1580, until Lambarde’s Eirenarcha superseded it. The author wrote the majority of the handbook in Latin, which, as mentioned, would have been practically unreadable to lay JPs.

27 John H. Baker, A Manual of Law French (Aldershot: Scolar Press, 1990). 28 Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 43.

27 Moreover, while the handbook provided precedents, indictments and charges to jurors, it contained summaries of statutes only up to the eleventh year of the reign of Henry IV (c. 1409) and very little from then on. Therefore, it was considerably out of date and never revised to include all of the statutes passed by the Crown that required JPs after 1544.29

In an attempt to build upon the 1506 handbook and remedy the situation, English judge and scholar Sir Anthony Fitzherbert (1470-1538) published a similar manual titled L’office et auctoryté des justyces de peas (1538). Fitzherbert’s book provided JPs with the rules of conduct for Quarter Sessions as well as the oath of the office of the Peace.30 Although Fitzherbert originally published the guidebook in Law French, he printed an English version that same year titled The Newe Boke of Justices of the Peas (1538), which was reprinted several times up until

1560.31 Despite the English edition, however, changes in the text of later editions caused problems restricted to spelling errors that occurred in the translation process.32 More significantly, Fitzherbert made a mistake in the French edition in regard to the legal powers issued to JPs that was never corrected in the English translation.33 Therefore, neither The Boke nor The Newe Boke provided an adequate guide for all of the men receiving their commission from the last half of the century. 34 Later guidebooks printed for justices also attempted to expound on the duties of the JPs. Much like the handbooks printed before, few were able to

29 Lander, English Justices of the Peace, p. 174. 30 Anthony Fitzherbert, The Newe Boke of Justices of the Peas (Classical English Law Texts. London: Professional Books, 1972). 31 Larry M. Boyer, “The Justice of the Peace in England and America from 1506 to 1776: A Bibliographic History,” Quarterly Journal of the Library of Congress 34, no. 4 (1977), 316. 32 Boyer, “The Justice of the Peace In England and America,” 316. 33 B.H. Putnam, “Sixteenth-Century Treatises for Justices of the Peace,” University of Toronto Law Journal 7 (1947), 140. 34 Boyer, “The Justice of the Peace In England and America,” 316.

28 provide a complete guide that effectively and adequately presented the expectations required of them.

In addition to the problems presented in Fitzherbert’s guidebook, a revised edition of

Fitzherbert's L’office, which was undertaken by Richard Crompton in 1583, demonstrates a similar problem. Crompton's revision included such a great deal of new information that it was considered an entirely different piece of literature altogether.35 His book contained instructions regarding the jurisdiction of the office of the Peace, recent details about the Sessions that JPs were permitted to use, and dealt with the powers of one, two and three or more justices.36

Although Crompton’s work was reprinted six times, the last in 1620, it was only printed in Law

French. Furthermore, it suffered sorely in organization that a separate table had to be printed in order to make it useful.37

The inadequacies of the guidebooks printed before Eirenarcha speaks to the enormous success Lambarde’s handbook received in the late sixteenth century, and demonstrate the high demand for a better source of legal guidance. The contents of Lambarde’s guidebook show that his initial audience may not have been the JPs themselves. Rather, as evidence will show,

Lambarde was in many ways addressing the central government as he highlighted deficiencies in the law and ultimately lobbied for a remedy for judicial inadequacies.

The Purpose of Eirenarcha: More than a Manual

Lambarde’s original publication of Eirenarcha was published in the form of two books. The first book explained the history of the Commission of the Peace, the historical significance of the role

35 Boyer, “The Justice of the Peace In England and America,” 317. 36 Boyer, “The Justice of the Peace In England and America,” 317. 37 Boyer, “The Justice of the Peace In England and America,” 317.

29 of a JP, and the duties of a JP outside of the Sessions of the Peace. The second book focused on the Sessions of the Peace, how they functioned, and the duties of the JPs – primarily members of the quorum – within the Sessions. Here, I will focus on book one of Eirenarcha and the ways in which Lambarde put forth his theory concerning the duty of a lay JP out of Sessions and how this theory provides evidence of a transition towards the consolidation of the relationship between the central state and its representatives in the localities. This will demonstrate how Lambarde was not only an active participant in the process of centralization with regards to the delivery of justice but more significantly how Lambarde, as a working JP himself, was critical of the administration of the office of the JPs and how he subsequently sought to provide remedies to such issues in an effort to see that legal inadequacies were addressed.

Within the opening pages of Eirenarcha, Lambarde explained to his reader the circumstances that initially led him to compose the guidebook. He declared that after consulting a number of other manuals for JPs, including Fitzherbert’s The Booke Of Justices of the Peas, he realized that despite their success, the office of the Peace had been “charged with many Statutes, which were not made when their writings were penned.”38 Furthermore, many of the subjects discussed within previous manuals to date were no longer relevant to the office due to the

“alteration of like authority.”39 Therefore, he took it upon himself to “confer their writings with the Book cases and Statutes that have arisen of latter times,” in order to “further the good endeavour of such as be not trained up in the study of the laws.”40 Although Lambarde was kind in his acknowledgment of Fitzherbert’s work, referring to it as an “excellent treatise,” he

38 Lambarde, Eirenarcha, ii. 39 Lambarde, Eirenarcha, ii. 40 Lambarde, Eirenarcha, 2.

30 confessed his real thoughts in a letter he wrote to Lord Chancellor Sir Thomas Bromley, to whom he dedicated the Eirenarcha.41

Lambarde stated that his mission began upon researching a portion of the laws that he was not well acquainted with after being appointed to the Commission of the Peace in 1579. He wrote to Bromley that while reading Fitzherbert’s treatise along with one he described as an

“ancient book of the same argument but of an author unknown,” he realized that neither book provided a sufficient means of instruction, stating that they “did rather incense than satisfy [his] thirst.”42 Lambarde declared that because of this, he originally created the manual for his own personal use “to have some serviceable furniture ready at hand.”43 This indicates that Lambarde had intended for the handbook to have a practical purpose for both himself and the common, hardworking JP, something stable to be easily relied upon. Lambarde confessed in his letter that after imparting his personal handbook with other “not unlearned gentlemen,” he was encouraged to compile a more formal handbook as “the more part of the Justices of the Peace, at this day had need of some help in writing for their better conduct in that office.”44 This point is significant as it not only provides evidence of the insufficiencies of the two previous manuals but also reflects the extent of how ambiguous a JP’s understanding was with regards to the duties concerning their office. Even more revealing, Lambarde's confessed desire for a suitable guidebook further highlights how despite his years of schooling at Lincoln's Inn, he was still strongly in need of an adequate form of reference for the portion of the law that concerned the duties of a JP. The fact that Lambarde was encouraged to compose a manual by men whom he described as “godly and wise” demonstrates the high demand for such a guidebook, revealing how other JPs recognized

41 Lambarde, Eirenarcha, i. 42 Lambarde, Eirenarcha, i. 43 Lambarde, Eirenarcha, ii. 44 Lambarde, Eirenarcha, ii.

31 the general lack of legal knowledge among the majority of men within the commission during the early modern period.

Lambarde dedicated Eirenarcha to Bromley and clearly stated that he hoped the chancellor would “according to the Rule of law (in your own hands) rectify the Commission of the Peace and some other crookedness, whereof this book shall bring complaint before you.”45

As this statement demonstrates, and as will be analyzed further below, Lambarde was aware of certain instances of corruption within the Commission of the Peace and sought to make the central administration aware of it through the material vetted out within his Eirenarcha. As the lord chancellor, Bromley was the head of Elizabeth’s government and of the legal system, and he appointed all JPs to the commission.46 By dedicating the guidebook to Bromley, Lambarde was attempting to provide a solution to the deficiencies in the law through the contents of

Eirenarcha. Essentially, what becomes clear from his decision to dedicate the handbook to the head of the legal system is evidence that his aspirations were for the handbook to not only be used by local JPs but also, that the guidebook would be able to improve the Commission of the

Peace at a more national level by pointing out the deficiencies in the law to the one person who could amend them.

Lambarde's epistle to the chancellor might also suggests that Bromley may have persuaded Lambarde to prepare a formal version of the guidebook himself. Lambarde addressed

Bromley as “my special L. (Lord) and favourer,” indicating Bromley's role as a patron. The fact that Lambarde was appointed as a JP by Bromley around the same time he embarked on the construction of Eirenarcha is suggestive of this as well. When a person nominates another for an

45 Lambarde, Eirenarcha, ii. 46 J.H. Gleason, The Justices of the Peace in England, 1558 to 1640: A Later Eirenarcha (Oxford: Clarendon Press, 1969), 22, 47.

32 office, especially in the early modern period, they are practicing patronage.47 Lambarde’s dedication suggests that Bromley, as a representative of the central government, had a hand in the matter, and knowing Lambarde to be well versed in the history of English law, asked him to provide a well-defined manual of the function and duties of the Commission of the Peace.

When Elizabeth I made Bromley chancellor in 1579, she instructed him to revise the articles of the Commission of the Peace and to extend the powers of the justices. She also instructed him to dismiss any men he deemed incompetent from the commission and to assemble new appointments.48 When Lambarde began the work which led him to the printing of

Eirenarcha, not only did he realize that the manuals in existence were not properly updated to include this new revision, but more significantly he had discovered discrepancies in the descriptions of justice’s duties as stated in the revision of the commission made by Bromley. The phrasing of the commission excluded a number of important obligations indicated in the statutes concerned with the JPs.49 Despite his knowledge of the law Bromley was not a JP and therefore possessed neither the proper knowledge of a justice nor of a sufficient understanding of the workings of local government. This consequently led him to make errors and omissions when it came time for him to revise the commission.50 Therefore, it would make sense that the newly appointed lord chancellor would have sought the advice of someone known to have more advanced knowledge of the law to help him better understand the proper function of the commission.

47 French R. Fogle and Louis A. Knafla, Patronage in Late Renaissance England: Papers read at a Clark Library Seminar 14 May 1977 (Los Angeles: University of California, 1983,) iii. 48 Dunkel, William Lambarde, Elizabethan Jurist, p. 62. 49 Dunkel, William Lambarde, Elizabethan Jurist, p. 61. 50 Dunkel, William Lambarde, Elizabethan Jurist, p. 62.

33 Lambarde was made an associate bencher by the Council of Lincoln's Inn prior to his formal appointment to the Commission of the Peace. According to the records of the Society of

Lincoln's Inn, the authorities of the Inn recognized that he “deserved universal well of his common wealth and country, and likewise of the Fellowship and Society of this House.” In addition to this honour, Lambarde was also given “a room to sit amongst the Society of the

Fellowship of the Bench, as other Associates used to do, without paying for the same.” This would have been a unique honour, and would have separated Lambarde from the rest of his associates as it was carefully noted that this was “Not to be a precedent.”51 It is unclear whether or not Lambarde was given this accommodation as a means to aid in the completion of his examination of the office of the Peace, or whether he was proposed the appointment earlier on.

What this evidence sheds light on, however, is the fact that Lambarde’s work at Lincoln’s Inn was well recognized and could have easily coincided with his work on the office of the JPs and his subsequent appointment to the Commission of the Peace.

Lambarde was clearly speaking to the central government by boldly addressing the lord chancellor as the preface to Eirenarcha, bringing to light how inaccurately employed the revision of the commission was.52 Lambarde used Eirenarcha to inform the central government of the laws concerned with the JPs just as much as the book was used to inform JPs of their proper role and function. Without a means of communicating the workings of their office and, more importantly, the difficulties that they faced due to the high level of demands upon them, even the central government was unaware of exactly what the job entailed. By this evidence, it is fair to suspect that by placing the handbook in the hands of the lord chancellor, whether by his own

51 Lincoln's Inn, Roxburgh, Ronald, Baildon, W. Paley, and Walker, J. Douglas, The Records of the Honourable Society of Lincoln's Inn: The Black Books (Lincoln's Inn, 1897), 412. 52 Dunkel, William Lambarde, Elizabethan Jurist, 67.

34 intent or by the advisement of the chancellor himself, Lambarde attempted to communicate this notion with the hopes that any errors he had found in the statutes be amended, ultimately leading to an overall improvement in the Commission of the Peace. This point is significant as it demonstrates the way in which Eirenarcha provided a link between the central government at

Westminster and the JPs in the local counties. This point also provides evidence of how

Lambarde can be understood as not only a legal antiquary but also a legal reformer who’s work improved the commission and the function of local government. In order to fully demonstrate this, I will investigate the contents of Eirenarcha, starting with the theory Lambarde offered regarding the role and duty of a JP.

Theory or Insight into the Justices of the Peace

Lambarde began with a discussion on the significance of a JP's role, establishing precedents for the commission through the historical foundations of their title. He started with the significance of the word justice, and what its earliest notion was to entail. Under the original writs created during the reign of Henry II, those appointed to be what became known as the Justice of the

Peace, as well as many other judicial officers were given the title Justices because “they do (or should do) law and justice.”53 This was done deliberately, as it was intended that by the mention of their name, it would “put them in mind of their office, and should continually (as it were) solicit them to administer justice,” in accordance with the task that they were appointed to do.54

By the reign of Henry III, however, the body of the law was “reduced … into Latin, and therein imitated the Method of the Civil Lawyers.”55 This alteration changed the word Justices to

53 Lambarde, Eirenarcha, 3. 54 Lambarde, Eirenarcha, 4. 55 Lambarde, Eirenarcha, 4.

35 Justitiarius, which then changed the meaning of their title to place emphasis on their role as judges in addition to the enforcement of the law. The writs that were established after this event were made in accordance with this new interpretation of their role, and since then, not only did all the writs that commanded the appearance of the justices at Westminster use the word

Justitiarius, but furthermore, all the commissions, including those “of the Peace, of Oyer &

Terminer, and such like” used this same term as well.56 This point is significant in conjunction with the term peace, which Lambarde went on to explain to establish the historical foundations of the office.

The word Peace, as used in the title of the Justices of the Peace, derived from the Norman word Paix, which was framed from the Latin Pax.57 Lambarde explained that there are two different forms of peace, one outward and the other inward. Lambarde related the inward peace to the scripture of the Bible, stating that although it could be either good or evil, this inward peace was reconciled “with God the father, by the death of Christ his son,” who appeased the wrath of God for the sins of mankind. Out of this inward peace, however, proceeds an outward peace, which, Lambarde declared, is related to one's conscience. This outward form of peace is relative to one's respect for other men, and of it, there are also two kinds: one is set in opposition against any manner of dispute, “whether it be countenance, gesture, word, or work.”58 The other is abstinence from force or violence and is contrary to armed conflict and war. In other words, in terms of matters of contention, there are two types: that which is fought with one's words and that which is physical, often involving the bearing of arms.59 Therefore, by this logic, references to the word peace in sixteenth century law derived from a variety of diverse meanings. In some

56 Lambarde, Eirenarcha, 4. 57 Lambarde, Eirenarcha, 4. 58 Lambarde, Eirenarcha, 5. 59 Lambarde, Eirenarcha, 6.

36 instances, “the word Peace is taken for Protection, or defence,” such as in the writ of protection,

“Brevia de pace” (the writ of peace).60 At other times, however, Lambarde stated that it could be taken to mean “Rights, Privileges, and Liberties,” such as was derived from the oath taken by

Queen Elizabeth I at her coronation in which she swore to maintain the degree and estate of each of her subjects.61 Finally, the word Peace could also be understood as withholding of violence or abstinence of “injurious force,” which is the most common use of the term when referenced in the form of the law. Lambarde explained that it was this sort of peace that the Crown intended when the JPs were originally appointed, stating that,

For Justices of the Peace were not ordained (as some have thought) to the end to reduce the people, either to an universal unanimity (or agreement) of minds, which is in deed a thing rather to be wished for, than to be hoped after: Neither is it any part or their office, to forbid lawfull suites and controversies (which nevertheless be disagreements of minds:) But to suppress injurious force and violence, moved against the person, his goods, or possessions.62

The emphasis made in the quotation above is my own; it exhibits a theme that recurs throughout

Eirenarcha, as Lambarde sought to establish the historical legal precedents of the Commission of the Peace in order to properly inform the central government of discrepancies in the way the commission was being managed and maintained. The Crown first appointed JPs to mitigate and mediate physical violence within the counties; this was the intention of Edward III, who, in the first year of his reign, passed the statute that officially sanctioned the keepers of the peace. The writ of 1327 declared that the word Peace entailed “not a uniting of minds, but a refraining of hands.”63 Based on this precept, Lambarde explained that the duties of a JP, therefore, are to

60 Lambarde, Eirenarcha, 6. 61 Lambarde, Eirenarcha, 7. 62 Lambarde, Eirenarcha, 7. 63 Lambarde, Eirenarcha, 7-8.

37 maintain the abstinence of “furious gesture, and beastly force of body, or hands.” He declared,

“This is the proper subject and matter about which the Office of the Justices of the Peace is to be exercised,” not the managing of “every contention, suite, and disagreement of minds.”64 In a charge Lambarde has intended to deliver to the Easter Quarter Session at Maidstone in 1601, he reiterated this same form of logic with regards to the duties employed by the JPs, stating that,

That inward persuasion of the mind and inclination of the heart is taught by the divines, whom God hath given us for the physicians of our souls, and is a service reserved to God himself. But the external and professed obedience, both to religion and policy, is taught and required by the laws of men and is due (for God) to our prince and country, and is indeed the very subject and matter of this our present employment here.65

JPs were to preserve a sense of obedience with regard to the maintenance of the “outward” form of peace, that is to say, the maintenance of peace concerning the physical actions of individuals and their relations with others. Essentially, what Lambarde communicated was that the Crown's peace entailed the protection of rights of individuals as well as keeping them safe from physical violence and harm.

Lambarde emphasized the original purpose of the office of the peace in order to provide not only working JPs with a clear and concise notion of their role but, moreover, to remind the central government of their primary form and function as well. The significance of this is more apparent as Lambarde acknowledged that he was not stating the initial role of a JP in order to declare that justices should not occupy themselves with the pacifying of suits and controversies outside of their intended purpose. Rather, he stated that he believed those men appointed to the commission to be “meet to steps in between those that be at variance as (by his reason his

64 Lambarde, Eirenarcha, 10. 65 William Lambarde, and Conyers Read, William Lambarde and Local Government; His Ephemeris and Twenty Nine Charges to Juries and Commissions, ed. Conyers Read (Ithaca, NY: Cornell University Press, 1962), 147.

38 learning, wisdom, authority and wealth),” they are likely to be more successful than most other men.66 He provided this information in order to show that this aspect of their office, despite their capabilities, was not their primary role entirely, explaining that, “But, as it is not all one, to speak of his proper office in Law, and of his common duty in Charitie: so I thought good to sever and distinguish them.”67 Here Lambarde was able to “sever and distinguish” between what a JP’s

“proper office in Law” was from his “common duties in Charitie” by tracing the office back to its first official authorization.68 By establishing the foundations of the office and the primary purpose and role of a JP within the opening pages of Eirenarcha, Lambarde was then able to provide prescriptions and point out any discrepancies that veered away from the original form and function of the office. By associating their charitable duties with those men who are of

“learning, wisdom, authority, and wealth,” Lambarde emphasized the types of men that should be appointed as a JP as well. By placing the foundations of the office of the peace in the historical past, Lambarde deciphered between the official precedential role of the JPs as well as the types of men that should form the Commission of the Peace from what had subsequently become of the office in the late sixteenth century. This is significant as anyone reading the handbook, would thereby be able to gather a concise understanding of the purpose of a JP within the first ten pages. Nevertheless, Lambarde went on to establish the theory of their role, moving on to expand on the manner of men that the justices of the peace should be.

At the time of the first official sanctioning of the JPs, statute 1 Ed. III, c. 15 declared that within every shire and realm, “good men and lawfull (which were no maintainers of evil, nor

Barraters (disturbers of the peace), in the Country)” should be assigned to be keepers of the

66 Lambarde, Eirenarcha, 10. 67 Lambarde, Eirenarcha, 10. 68 Lambarde, Eirenarcha, 10.

39 peace.69 This was to say that the king was responsible for finding men of a certain “authority” who were “willing and wise” yet also able to suppress any intention of “uproar and force” within each shire.70 Lambarde explained that this system originated before the official ordainment of the

JPs and that during those times, the common law had functioned since the beginning to keep those who disturbed the peace out of the Commission, as there were many people who “had an interest in keeping the peace.”71 Of those who were appointed to the Commission, some obtained the role by “incident to other offices that they did bare,” and their titles were subsequently based on these positions. Others obtained the role “simply, as of itself,” and those men were named

“Custodes pacis,” (keeping the peace) and were “Wardens, or Conservators of the Peace.”72

Some of the men who obtained the charge of peace by their possession of other offices had power over the entire realm, whereas others only had authority within certain limits. This point is significant as it highlights the types of men Lambarde figured should be appointed to the commission.

Elizabeth I was the principal conservator of the peace due to her possession of office and royal dignity. This authority provided her with the power to transfer authority to others to keep the peace and to punish those who disturbed it. By this precedent, Lambarde stated that a “Duke,

Earle, or Baron be no Conservators of the Peace because those be no titles of Office, but of dignity only.”73 Therefore, Lambarde was communicating to his reader that in matters of determining those who should and should not become JPs, the lord chancellor should not simply appoint men based on the dignity of their title alone. This point is made more apparent as

69 Lambarde, Eirenarcha, 21. 70 Lambarde, Eirenarcha, 22. 71 Lambarde, Eirenarcha, 11. 72 Lambarde, Eirenarcha, 12. 73 Lambarde, Eirenarcha, 12.

40 Lambarde explains that in accordance to this stipulation, the lord chancellor, the lord steward of

England, the lord marshal and constable of England, and all the justices of the King's Bench have by right of their office a “credit” for the conservation of the peace “over all the realm,” and may, by the possession of their office and title, “award precepts and take recognizances for the peace.”74 Based on the historical foundations of the JPs, Lambarde declared that the authority considered for men to become JPs did not entail the mere dignity of one's social title, such as a baron or a duke, but rather what was meant by authority stemmed from the bearing of a position in office. Put simply, any man who held a position of office was, therefore, a conservator of the peace by incident to their office. In addition to this, Lambarde went on further regarding the

“manner of men the Commission of the Peace ought to be.”75

Lambarde sought to enhance the effectiveness of the office of the JP by reminding the central government to ensure that the men appointed for the job were of the right mode and manner. Accordingly, Lambarde drew from historical legal precedents in order to establish the qualities gentlemen should have in order to be good JPs. By statute 18 Ed. III, c. 2 and 17 Rich.

II, c. 9, all men appointed to the Commission of the Peace were to be gentlemen of good character, wealthy, a person who proved his courage in battle (valour). After some time, however, a new statute was enacted that forbade the chancellor, treasurer, keeper of the privy seal, steward, chamberlain, clerk of the rolls and other officials from naming any justice of the peace “for any gift, brokerage (payment of a fee), favour, or affection.”76 Although Lambarde did not cite any particular cases where JPs succumbed to bribery to secure an appointment, the very existence of these statutes suggests that such dealings were performed in the early stages of

74 Lambarde, Eirenarcha, 12. 75 Lambarde, Eirenarcha, 32. 76 Lambarde, Eirenarcha, 33.

41 the commission. Furthermore, the fact that Lambarde made a point to provide this information within the section concerning the types of men that should be named JPs suggests that this sort of practise was still occurring. Despite the fact that the chancellor was to have made his nominations to the commission based on the suggestions from the judges of the Assizes, the incentives behind the appointments of JPs were actually obtained from within the counties themselves. This left much of the procedure for appointment opened to local interests and bribery.77 In order for the men of the office to perform their duties effectively and efficiently, it was important for those men to be of the same nature and stature that the maintenance of the peace called for. Therefore, upon reciting this precedent, Lambarde further reiterated that only those of “the most sufficient persons dwelling in the County” should be made JPs. 78

In a charge delivered to Quarter Sessions in 1596, Lambarde called for the men of the commission to “conform [their] minds to the image and likeness of law,” to which he described as “one, alike, and the same to all men, and which can neither be bowed by favour, nor be broken by force, nor be incited by malice, nor be corrupted by money or gift whatsoever.”79 In conjunction with the previous section from Eirenarcha, it is clear that Lambarde sought to bring to light those who obtained their position on dishonest terms, for it is more than likely that those who found their way into the commission in such a way lacked the proper means required of a

JP. This point is further enhanced within Eirenarcha as Lambarde provided evidence of a time when “men of small substance had crept into the commission whose poverty made them both covetous and contemptible.”80 As a means to revise and rid the commission of such men, a new

77 Esther Moir, British Institutions: The Justice of the Peace (Middlesex: Penguin Books, 1969), 16. 78 Lambarde, Eirenarcha, 32. 79 Lambarde, William Lambarde and Local Government, 131. 80 Lambarde, Eirenarcha, 34.

42 statute was enacted that required those named JP to possess “lands or tenements to the value of twenty pounds by the year,” the same requirement as men who ran for a parliamentary election.81

Prior to the publication of Eirenarcha, this was the only legal enactment concerning the stipulations for one to become a JP. Lambarde declared, however, that by statute 18 Hen. VI, c.

11, this requirement did not apply to those counties that did not have men who possessed the lands or tenements of the aforementioned value. For those counties, the enactment stated that in cases “where there be not men sufficient … for then other discrete persons learned in the Law, may by the Lorde Chancellor bee put in the Commission.”82 In other words, in counties where there were no gentlemen who could fulfill the £20 requirement, the chancellor was to appoint other individuals who were learned in the law to the commission. The significance of this point lies in the connection Lambarde made to the requirements concerning the office in the late sixteenth century, stating that,

Now although this portion of twenty-pounds a year, be not at this day in account answerable to the charge and countenance fit for a Justice of the Peace, yet who knoweth not, that at the making of this Law, it was fair otherwise? And I do not doubt, but as the rate of all things is greatly risen since that time, so is there also good care taken, that none be now place in ye Commission, whose living be not increased according to the same proportion.83

Lambarde used historical legal precedents in order to provide both JPs as well as those within Parliament and the monarchy with an understanding of how the Commission of the Peace is to be properly maintained with regards to the types of men that should be appointed as well as the steps taken to ensure that such men were appropriately selected. While he acknowledged that the requirement of £20 a year was no longer a suitable measure for those JPs at the present time,

81 Lambarde, Eirenarcha, 34. 82 Lambarde, Eirenarcha, 35. 83 Lambarde, Eirenarcha, 35.

43 Lambarde stated that appropriate actions should be taken in accordance with the increase in living standards for JPs. Put simply, a man appointed to the Commission of the Peace should still be required to possess a certain amount of wealth in accordance with the “charge and countenance fit for a Justice of the Peace.”84 Because the £20 income was relatively modest by the end of the sixteenth century, it was important for the commission to ensure that the men appointed as JPs be of sufficient wealth and good standing as to be respected and less likely to succumb to any enticement of bribery. This argument is further enhanced as Lambarde acknowledged the central government directly, declaring that in order for gentlemen to come fully equipped with the proper knowledge and means required of a JP, it was their job to ensure that they possessed three basic “principle ornaments of a judge, that is to say with Justice,

Wisdom and Fortitude,” or rather that they are “Good, Learned, and Valiant.”85 The fact that

Lambarde stressed the active role of the central government in ensuring a proper assessment of the men appointed to the commission demonstrates how Eirenarcha was not only a handbook designed for JPs, but also helped to inform the central government of the role and duties of a JP.

Lambarde further addressed the more logistical issues of the office in this way, particularly concerning the rapid growth of the number of JPs throughout the localities.

As previously stated, one of the ongoing problems with the office of the peace was the large increase in the number of JPs throughout the sixteenth century. Historian John Neale argued that indolence and corruption within the commission corresponded with an increase in the number of JPs throughout the counties. Neale argues that one way of keeping these “vices within bounds” was “vigilance and firm control by the central government.”86 Lambarde was critical of

84 Lambarde, Eirenarcha, 35. 85 Lambarde, Eirenarcha, 35. 86 John Neale, Essays in Elizabethan History (London: Jonathan Cape, 1958), 217-18.

44 the commission with regard to the increasing number of JPs. Lambarde recognized that the desire for status and privilege that the role of JP provided was a contributing factor to the increase in men appointed. He presented his own theory, however, for the growing number of

JPs, while establishing the historical precedent of the size of the commission. In accordance with this, Lambarde demonstrated concern for the growing number of JPs and addressed this issue within Eirenarcha by reciting the statutes that restricted the number of justices from the time of the office’s first official ordainment in the reign of Edward III.

Lambarde explained that statute 18 Edw. III, c. 2 stipulated that within each county, only two or three wardens of the peace were originally required. It soon became apparent, that these numbers were not sufficient in order to maintain the governance of the counties, and therefore, a new statute was enacted (34 Edw. III, c.1) which provided “that in every Shire, one Lord, and with him three (or four) of the Best in the County, and some learned in the laws, should be assigned for keeping of the Peace, and to restrain offenders.”87 Here Lambarde recognized that despite the stipulations of the statute, “evil examples doe follow of good laws,” explaining that in time Parliament slowly began to increase the number of JPs in the commission.88 This expansion gave way to a rise in the “ambitions” of many men with the desire to acquire a spot on the

Commission of the Peace, which further increased the number of JPs within the counties. As a result, a final enactment was put in place in an effort to reduce the size of the commission.89 By the statutes of 12 Rich. II, c. 10 and 14 Rich. II, c. 2, it was instated that no more than five JPs could be appointed in every commission, besides the two justices of Assize and certain Lords assigned by Parliament. Another law was enacted requiring “that no Association should be made

87 Lambarde, Eirenarcha, 36. 88 Lambarde, Eirenarcha, 37. 89 Lambarde, Eirenarcha, 37.

45 to the Justices of the Peace after their first Commission” (12 R. II, c. 10.)90 This subsequently led to the practice of establishing new commissions and appointing new justices upon the accession of a new monarch and office. While Lambarde recognized that the increase in the size of the

Commission of the Peace was partially due to “the like ambitious desire of bearing rule in some,” he took this opportunity to address his own personal thoughts on the expansion of the commission. Lambarde proclaimed that the cause of the substantial growth in the number of JPs was the direct result of “the growing number of the statute laws committed from time to time to charge of the justices of the peace.”91 This point is enhanced as Lambarde, within addressing the historical stipulations regarding the number of JPs, presented an analogy in order to bring to light the current state of the commission, stating that,

For, if Hussey the Chief Justice (1. H.7, c. 3) thought that it was enough to load all the Justices of the Peace of those days, with the execution, only of the Statutes of Winchester & Westminster, for Robberies and Felonies, the Statute of Forcible entries, the Statutes of Labourers, Vagabonds, Liveries, Maintenance, Embracery, and Sheriffs: Then how many Justices (think you) may now suffice (without breaking their backs) to bear so many, not loads, but Stacks of Statutes, that have since that time been laid upon them? To dispute, whether it be better to have many, or few Justices of the Peace, in each Shire, (if all put in were able for that place) is a noble question, & worthy of a higher consideration, and therefore it becommeth not me to enter into it.92

Lambarde addressed the role of the central government with regards to the number of statutes charged to the JPs by placing emphasis on their strenuous workload as the main cause of the increase in their numbers within the counties. Within doing so, Lambarde was not only providing a reasonable explanation to the cause of the growth in the commission but was more significantly

90 Lambarde, Eirenarcha, 37. 91 Lambarde, Eirenarcha, 38. 92 Lambarde, Eirenarcha, 38.

46 addressing the current state of affairs of JPs “burdened with statutes.”93 By acknowledging the number of JPs within the commission, Lambarde was able to address the growing workload of the Commission of the Peace by providing his reader with the number of men that the commission had originally required. In comparison, it becomes clear that given the amount of work that was required of a JP in the late sixteenth century, the limited number of justices originally required within each county would have clearly been unable to deliver their services in a way that the role required of them. Elton explained that, “by the end of Elizabeth’s reign

Lambarde could list 309 statutes which in one way or another referred to the duties of the justices of the peace; of these only 133 (going back to the thirteenth century) preceded 1485”94 In accordance with the concerns regarding the growing size of the commission throughout the

Tudor period and the degradation in the quality of men appointed that followed, it is clear that what Lambarde was trying to show was the that commissions due to the number of statutes that were being passed by Parliament and the Crown, and therefore it was of a “higher consideration” as to whether to reduce the numbers of JPs. Lambarde sought to enhance the administration of justice within the localities by acknowledging and making Parliament and the Crown accountable with regards to the effects that the ever-increasing workload had on the quality of men appointed and subsequently the proper administration of justice within the localities on behalf of the JPs.

93 Lambarde, Eirenarcha, 38. This quote is taken from the side margin notes made by Lambarde. 94 Geoffrey R. Elton, and Joseph Robson Tanner, The Tudor Constitution: Documents and Commentary (London: Cambridge University Press, 1960), 466.

47 Oath of the Justices of the Peace

One aspect of the Commission of the Peace that Lambarde continuously addressed within the charges to the Sessions was the oath of their office. In a charge delivered at Maidstone in 1583,

Lambarde called for the juries to keep in mind the oath they pledged to the commission stating

I pray you now, therefore, suffer not yourselves to be seduced by the evil example of such as have occupied that place before you, but enter into an earnest examination of your present duty, remembering that you be sworn, that is to say, that you have called God to witness of your promise, and that even so, and none otherwise, you desire help at His Hand in your necessities as you intend faithfully to perform that which you have vowed in his presence.95

In direct comparison, Lambarde emphasized the oaths administered to the justices of the peace within Eirenarcha in order to express the frame of mind that each member of the commission was required to bear upon entry into office, explaining that those who occupy judicial places must take great care in order to fully understand what their roles are, knowing that they not only exercise the judgements of men but of “God himself, whose power, as they do participate.”96 In this instance, a number of key details are of significance and require deeper examination.

Lambarde stated within Eirenarcha that the reason as to why the oath required those to “set God continually before their eyes” was to threaten them against corruption and to “strengthen their minds, and arm their courage's, against the force of humane affections, which otherwise might allure and draw them out of the way.”97 What is significant within this tract, however, is

Lambarde's choice of words, as the opening lines of this section demonstrate how he was not only acknowledging the justices of the peace themselves but was additionally including those within the central government as well, as those who “occupy Judicial places” and those “present

95 William Lambarde, William Lambarde and Local Government, 75. 96 Lambarde, Eirenarcha, 57. 97 Lambarde, Eirenarcha, 58.

48 on the Bench” could be understood to include not only the justices of the peace but moreover each other member of the commission including those within the central government. Therefore, within framing “The causes why Justices be sworn,” Lambarde was not only speaking to the justices of the peace but was also addressing all members of the commission, including the

Crown, in an effort to promote an expression of accountability. Lambarde sought to remind both the justices of the peace, as well as those within Parliament, that they are all under oath in the hopes that this would evoke a greater sense of responsibility and further enhance the commission. Lambarde went on to advance this point has he clarified the oaths of the JPs.

The first oath observed by the JPs was implemented upon this reasoning during the reign of Richard II, which ordered that upon the admittance of any new JPs, each “should be sworn, to keep and put in execution, all the Statutes touching their office.”98 Lambarde stated that although this was the first oath that he came across to be administered to the JPs, he suspected that “they were not unsworn before, nor at any time after, as many be collected upon the books 21.E.67&12.E.4.18.”99 This particular enactment did not last long, however, as it was too “general, and hard to be observed.” Therefore, it was revised and extended to consist of the five articles as follows:

Do equal right to rich & poor, as wit & law extends: Give none advise in any cause, that you before depend: Your sessions hold, as Statutes bid: The forfeits that befall, See entered well, and then entreat them to the Chequer all: Receive no fee, but that is given by Queene, good use, or right: No fine precept to party self, but to indifferent weight.100

In addition to this oath, another one was further enacted for the justices of the peace upon the first Parliament of Queen Elizabeth I that declared a JP’s allegiance to the “Queens Highnesses,

98 Lambarde, Eirenarcha, 58. 99 Lambarde, Eirenarcha, 58. 100 Lambarde, Eirenarcha, 61.

49 her heirs & lawfull successors” as the “supreme Governor of [the] Realm, and all other her

Highnesses Dominions and Countries.”101 Furthermore, all JPs who took the oath proclaimed to

“assist and defend all jurisdiction, privilege, pre-eminence, and authority granted or belonging to the Queens Highnesses.”102

Lambarde addressed the significance of the oaths in order to ensure that each JP in practice understood the brevity of what they represented, but furthermore, to evoke action from the central government to see that each individual admitted to the commission was taking the oath as well. This point is brought to light as Lambarde, upon acknowledging the “care taken” to enact the oaths in the past and the good that had resulted from them, revealed that “many a

Justice there is … by indirect practice never took, neither this, nor the former.”103 In other words, there were many men currently bearing a spot in office that had not taken the previous nor the current oath, despite efforts in the past to “exact this latter Oath of all the Justices of Peace throughout the Realm.”104 Lambarde acknowledged the central government on this issue, highlighting the problems that could result from the absent requirement of the oath, he concluded, “whereof what harms do, and may grow, I leave to wise and higher men to be considered.”105 By explaining the reason for the oath and laying down the historical legal precedents of the continuous implementation of the oath, Lambarde was able to bring to light the current state of affairs of the commission, highlighting the discontinuance of a requirement of office that he believed to be crucial to the proper function of the duty of the JPs.

101 Lambarde, Eirenarcha, 61-62. 102 Lambarde, Eirenarcha, 62. 103 Lambarde, Eirenarcha, 62. 104 Lambarde, Eirenarcha, 62. 105 Lambarde, Eirenarcha, 62.

50 Numerous charges exist that highlight how Lambarde placed high importance on the oath taken by the justices of the peace.106 Lambarde continuously sought to ensure that each member of the commission present at Quarter Sessions was aware of his duty and responsibility to the

Commission of the Peace by stressing the oath of his office,

I trust you will use both such attention in hearing and such intention in doing of that which belongeth to your parts as the gravity of the causes themselves, the necessity of these times, and your bounden duties by oath now taken do require at your hands… Between us and the offenders are you set chiefly that be sworn to inquire of offenses … For your duty, and oath is not only to take information but also to make inquiry of all such articles as shall be given you in charge.107

By providing the historical legal precedents of the oath of the commission and more importantly, acknowledging the fact that justices of the peace were expected to be sworn upon admittance throughout the history of the office suggests that Lambarde sought to communicate to the central government not only the sheer importance of the oath in terms of producing a more efficient and effective commission but more significantly that each JP admitted to office should continuously be required to recite the oath. This demonstrates not only how Lambarde provided working JPs with the expectations of their role and duties but furthermore how he actively sought to produce a shift in attitude amongst JPs as well as the central government in hopes of evoking a greater enhancement of the Commission of the Peace.

Conclusion

Lambarde’s Eirenarcha was not only a handbook for the justices of the peace, but rather instructively addressed the central government on how to properly build, manage, and maintain the Commission of the Peace. Lambarde’s letter to Bromley indicated that Lambarde was

106 For more examples of this, see Lambarde, William Lambarde and Local Government. 107 Lambarde, William Lambarde and Local Government, 68, 69, 72.

51 perhaps instructed by the lord chancellor to devise a manual to help inform the Crown of the form and function of the office. The topics of discussion Lambarde chose to include in the opening pages of Eirenarcha demonstrate this argument as well. While it was useful for working

JP’s to understand the historical foundations of their role, the manner of men who should be appointed to office, as well as the significance of their oath, this information was undoubtedly more important to those responsible for issuing and maintaining the commission. In the realms of local government, the Crown was increasingly becoming more involved in the affairs of their local officials to engineer a more centralized operation of judicial administration in the localities.

Lambarde’s Eirenarcha was devised to help lead to reform and evoke a greater enhancement of the Commissions of the Peace. Lambarde was not only a legal scholar, but rather used his knowledge of the high medieval past to inform the central government of the correct form and function of the JPs, ultimately positioning Lambarde as a central figure in the process of state formation through his efforts to centralize and reform the processes of local government in the early modern period.

52 Chapter Two

A Handbook for Justices of the Peace

Justices of the Peace in the Counties

In 1975, eighteenth century historian Douglas Hay suggested that selective enforcement within the legal system in England helped to implement and solidify power among those who administered the law. Hay identified that the discretionary legal system specifically provided an advantage to those in control and argued that the ability to enforce the law as strictly or as leniently as one desired was a key embodiment of the powers of paternalism.1 Hay contended that the JPs reinforced their position in society by utilizing the gap between legal prescriptions and legal practices, arguing that discretionary authority could be regularly manipulated to support the position of those executing the law. In an effort to relate this thesis to the law in late sixteenth century England, Cynthia Herrup contended that while only those specializing in the eighteenth century can truly confirm the validity of Hay’s arguments, “no one interested in the relationship between law and society in any period can afford to neglect Hay’s insights.” Herrup argued that the use of legal discretion and its relationship to social power is important for historians studying the late sixteenth century, and states that criminality in the early modern period can best be understood through the application of discretion within the legal system on behalf of the Justices of the Peace.2

1 Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay, et al., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London: Allen Lane, 1975). Cynthia Herrup, “Law and Morality in Seventeenth-century England,” Past & Present, no. 106 (1985), 103. 2 Cynthia Herrup, “Law and Morality in Seventeenth-century England,” 104.

53 Keith Wrightson defined this gap between legal prescriptions and legal practices as “two concepts of order … where national legislative prescription and local customary norms intersected.”3 As JPs worked to administer the law within the counties, the definition of “order” could change depending on the implications of the situation. As will be shown, the authority of the JPs outside of the Sessions of the Peace was to be exercised with a certain degree of discretion, and evidence from Lambarde’s Eirenarcha highlights his concern regarding the way that this discretionary authority provided JPs with a sense of social power that worked to deter men from their proper role and function within the Commission of the Peace. Herrup questioned whether criminal procedure as early as the 1590s was primarily a tool of social and economic power. Lambarde’s Eirenarcha demonstrates that the authority of the JP was indeed a mechanism of power that Lambarde sought to mediate through his efforts to secure a structure of legal order at the local level with the use of prescriptive text.

In chapter one I investigated Lambarde’s motivations for constructing Eirenarcha and the way in which he informed the central government of the proper role and function of a JP. By exploring the historical foundations of the Commission of the Peace, Lambarde was able to establish the more theoretical knowledge of the commission – the nature of the JPs, the significance of their office and title, and the importance of their oath – in order to promote a more effective and efficient execution of local government. In this chapter, I will examine the more practical instructions put forth by Lambarde regarding the duties exercised by JPs outside of the Sessions of the Peace. The majority of JPs who attended the Sessions were predominately those of the quorum, learned in the law and who often attended the Sessions in greater numbers

3 Keith Wrightson, “Two Concepts of Order: Justices, Constables and Jurymen in Seventeenth- century England,” in Theories and Origins of Modern Police, ed. Clime Emsley (New York: Routledge, 2016), 22.

54 than those working individually outside of the Sessions. Lambarde acknowledged that it were those JPs working outside of the Sessions who were most in need of a guide and therefore

“thought meet to help most, where most need was … where one or two Justices (pressed with the necessity of time, and destitute of the assistance of their learned companions) were to administer their office alone.”4 This chapter will therefore focus on the instructions given by Lambarde concerning JPs working outside of the Sessions, specifically with regards to their duties concerning their use of discretion in relation to pre-trial procedure in order to demonstrate the way Lambarde sought to centralize the more practical work of a lay JP. Although the majority of

JPs who attended the Sessions were those better equipped with knowledge of the law,

Lambarde’s message to the Sessions directly parallels his instructions within book one of

Eirenarcha regarding a JP’s out of Sessions duties, demonstrating how his expectations for the deliverance of justice and execution of the law were consistent. This will show how Lambarde’s

Eirenarcha demonstrates his efforts to centralize the administration of the law, specifically regarding pre-trial procedure. Lambarde was not only a legal scholar. He was critical of the historical foundations of the law, and used his knowledge of history to provide his fellow JPs with instructions regarding the way their duties should be executed. The nature of local government in the sixteenth century was rather ambiguous, and Lambarde’s Eirenarcha not only provides evidence of the complexities of early modern local government, but moreover the practical issues that everyday working JPs faced on a daily basis as they strived to make sense of the common law.

4 Lambarde, Eirenarcha, 283.

55 The Use of Discretion on Behalf of the Justices of the Peace

William Lambarde was well aware of the pivotal role justices and other local officials played within the counties, describing them in his charges as “instruments or hands to do the very office of our prince and sovereign.”5 He understood the office of the peace as an essential tool of the

Crown’s rule, and he actively encouraged other judicial officials, as well as those within the central administration, to do so as well. Despite his efforts to highlight the importance of the JPs as essential to the system of local government, Lambarde was also highly critical of the authority they possessed and often expressed concern regarding the legality of their performance. In a charge delivered at Maidstone in 1595, Lambarde described the power that those within the

Commission of the Peace held and indicated the course of action that each JP was to take upon the discovery of a breach of the peace. “We ourselves, I say, have this whole power in our hands,” Lambarde declared, “you for information by inquiry and we for determination by hearing, judgement, and execution.”6 Lambarde instructed that the administration of justice in the localities should be conducted in a precise way, starting with the search and inquiry of offences by local officials. Without this, “offenses against the law are not discovered, without discovery they are not informed, without information they cannot be heard, without hearing they ought not to be judged, and without judgement they neither may nor can be lawfully and condignly punished.”7 Lambarde’s charge to the juries provides an example of the way he sought to provide a systematic explanation of the powers and duties of a JP, as it directly parallels the information he provided within Eirenarcha regarding the duties of a lay justice.

5 Lambarde, “Charges to Juries at Quarter Sessions” in William Lambarde and Local Government, 76. 6 Lambarde, William Lambarde and Local Government, 119. 7 Lambarde, William Lambarde and Local Government, 119.

56 Since the medieval period, the English court’s ability to administer justice, both at the center and local levels, has been directly linked to an adherence to due process, that is, the procedures, practices, and prescriptions that judicial officials have to execute in order for justice to be attained. Holger Schott Syme states that the administration of early modern justice was strongly linked to these procedural practices, and therefore corruption within the judicial process occurred only when officials deviated from an “unstated or explicit correct form and attitude.”8

Lambarde’s Eirenarcha not only provided JPs with a form of legal knowledge that was readily available and could be easily referenced throughout their service within the commission, but more significantly his handbook reveals an intention to revise the Commission of the Peace by instilling a particular attitude among his fellow JPs. What becomes clear from a deeper analysis of Eirenarcha is Lambarde’s desire to reveal and uproot certain mentalities and behaviours that hindered the practice of an objective approach to the execution of the law that dated back as far as the commission’s first inception.

As stated by the statute that formally created the office of the peace in 1360, those appointed to the commission were granted a certain amount of discretion with regards to how they punished offenders, allowing them, in addition to the power to restrain offenders and pursue arrests, to imprison and punish an offender “according to the law and customs of the realm and according to that which to them shall seem best to do by their discretions and good advisement.”9

Therefore, upon the discovery of an offense, JPs were given the power by statute to enforce the law to any degree that they essentially saw fit, allowing them to determine the severity of the

8 Holger Schott Syme, “(Mis)representing Justice on the Early Modern Stage,” Studies in Philology 109, no. 1 (2012), 64. 9 34 Edward III, c. 1 as quoted in Danby Pickering, The Statutes at Large, From the 15th Year of K. Edward III From the 13th Year of K. Henry IV, Inclusive (Cambridge, 1762), 135.

57 crime and the subsequent treatment of the offender. Lambarde went into detail regarding this authority and explained the use of discretion on behalf of the JP.

Lambarde explained that the power of a JP was in some cases very limited, as at this time the majority of more serious criminal offences were addressed to the court of Assize, with only minor misdemeanors addressed to the responsibilities of the JPs and Sessions. In other cases, however, Lambarde stated that their power was absolute, not absolute in the simple meaning of the term, but rather in a manner of speaking.10 He explained that while a JP was required to act in accordance with the laws, customs and statutes which enumerated his responsibilities, as long as there were laws in existence that directly related to a specific crime and circumstance, the less a

JP would be required to use his own judgement to determine the severity of a crime and subsequent treatment of an offender.11 In other words, the practice of discretion on behalf of a JP only applied to cases where there were no laws or statutes that properly defined those specific circumstances and directly prescribed a punishment. As discussed in chapter one, despite the efforts of Parliament to enact a variety of laws describing the duties of the JPs, Lambarde acknowledged that it was nearly impossible for every foreseeable circumstance to be determined at the time of the construction of a law and, therefore, it was up to the individual executing the law to determine the best course of action in accordance with the crime being committed.12 This knowledge would not only have been very useful to working JPs in order to understand the limits of their discretionary authority, but also to the central government, who could ensure that laws came fully established with prescriptions for JPs to execute in order to properly and efficiently administer the law.

10 Lambarde, Eirenarcha, 63. 11 Lambarde, Eirenarcha, 63. 12 Lambarde, Eirenarcha, 64.

58 The execution of the law in the late sixteenth century required the use of some discretion because, as stated by Lambarde, the law was “never so certainly set forth and bounded in itself” and, therefore, the practice of discretion was “necessary in the execution of every law.”13

Lambarde highlighted the “unlimited” nature of the law in order to demonstrate how in some circumstances laws concerning a crime, especially crimes that were not felonies, did not always come with prescriptions for the sentencing of every criminal action. Therefore, it was up to the

JP to determine the crime committed in order to execute the best possible course of action thereafter, as the law was not “specially limited with all the circumstances, but is indifferently referred to the consideration of the Justice that is put in trust with it.”14

Herrup and Wrightson both argued that legal decisions in the early modern period frequently reflected the values of those exercising the law, and often the use of discretion in the law changed in accordance with the pressures of the age. Moreover, those put in trust with the enforcement of the law were often legal amateurs and the outcomes of decisions resulting from the application of discretion reflected the moral values of the individual executing the law, and those of the community where they resided.15 Therefore, in some instances, judicial decisions were not always executed in a way that effectively handled the maintenance of the peace in a way that reflected the desires of the Crown. Herrup explained that throughout the late sixteenth century, those enforcing the law developed a more practical approach to criminality that placed more weight on the circumstances of the crime and the state of the accused as opposed to defining criminality according to the criteria established by the common law. This meant that when local customs and behaviours were breached, the means of which to restore those

13 Lambarde, Eirenarcha, 64. 14 Lambarde, Eirenarcha, 64. 15 Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth- century England (Cambridge: Cambridge University Press, 1987), 6.

59 boundaries markedly differed from legal statutory proscriptions. Wrightson stated that this complexity between the law and established local customs generated a “popular reluctance either to accept the law’s definition of an offence, or to enforce it where it ran counter to local needs.”16

This resulted in a much more lenient approach to the treatment of offences that dominated the

Quarter Sessions. The complexity of the relationships within the counties made it especially difficult for local officials to judge the behaviour of an offender without also drawing on a number of personal implications.17 Therefore, as JPs and other local officials assessed the circumstances of a crime, the use of their discretionary authority was influenced by their own personal feelings and the pressures of their neighbours to obtain local customs and concerns in addition to the statutory prescriptions of the common law.

Philip Booth describes the discretionary power of the JPs as an example of

“unconstrained decision-making” and states that because JPs they were given the power to execute the law as they saw fit, some JPs developed their own rules when determining an offence.18 This meant that the execution of the law and the subsequent delivery of justice could vary depending on the JP assessing the crime. This point is reflected in Eirenarcha as Lambarde expressed discomfort regarding the authority of a JP and the use of so much discretion, lamenting “it is to be wished that Justices of the Peace would not… arrogate unto themselves authority to use their discretion and to play (as it were) the Chancellors, in every case that cometh before them.”19 Here, it seems that Lambarde was expressing that JPs had too much discretionary authority. This is significant as it demonstrates the way Lambarde pinpointed a

16 Wrightson, “Two Concepts of Order,” 24. 17 Herrup, “Law and Morality in Seventeenth-Century England,” 106. 18 Philip Booth “The Control of Discretion: Planning and the Common-Law Tradition,” Planning Theory 6, no. 2 (2007), 130. 19 Lambarde, Eirenarcha, 65.

60 certain aspect of a JPs role that worked to bring about discrepancies within the administration of justice in the counties.

Lambarde not only criticized the use of a JP’s discretion, but he also highlighted certain issues within the commission that were occurring through the use of a JP’s privilege to exercise his own discretion. Lambarde outlined the proper way a JP should apply his discretion to the application of the law, declaring that “For no way better shall the discretion of a Justice of the

Peace appear, then if he (remembering that he is Lex Loquens [speaker of the law]) do contain himself within the lists of law.”20 Lambarde consistently reminded the officials of their duties in the charges delivered to the Sessions of the Peace in this same way, referring to their role as “lex loquens, a speaking law.”21 Justices were not to use their own discretion as they saw fit, but rather were to inquire into an offence and use their discretion in accordance with the appropriate laws concerning the crime. This point is made more apparent as Lambarde addressed the JPs within Eirenarcha, ordering them to “not use [their] own discretion, but only where both the law permitteth and present case requireth it.”22 This is significant as it shows how Lambarde addressed the JPs with the use of a handbook in an attempt to enhance the Commission of the

Peace by explaining the correct form and function of the duties of a JP. Furthermore, this demonstrates the way Lambarde communicated to the central government the discrepancies occurring within the commission with regards to the power JPs were given that could lead to the detriment of proper judicial administration, signifying how the application of discretionary procedure could operate in some cases to expand the powers of a JP in an unrestricted way.

20 Lambarde, Eirenarcha, 65. 21 Lambarde, William Lambarde and Local Government, 69. 22 Lambarde, Eirenarcha, 65.

61 While Lambarde did not outright reveal a specific instance when a JP abused his powers of discretion, the fact that he warned against the use of discretion in this way suggests that it was an issue that needed to be addressed. Furthermore, the Crown could not simply send judges from

London to administer justice for every crime committed, as they were not familiar with the local customs of each individual county, and as Lambarde previously stated, not every circumstance and crime could be established through statutory proscription. Lambarde further addressed this point to the Sessions of the Peace, proclaiming, “And lest we should either be wearied in seeking these needful helps a great way off and far from us, or should be over-roughly entreated by strange persons that might be sent for the administration of them [the laws] amongst us.”23

Wrightson argued that the use of penal legislation by magistrates in the counties was considered much more severe in relation to the crimes being committed. In reality, the order of most communities could put up with certain unlawful behaviour to a degree. The maintenance of unlawful conduct, however, was more likely to be exacerbated by strict enforcement of the law, which ran the possibility to encourage “new conflicts and drain, in fines, its resources.”

Therefore, what was important in the localities “was the maintenance of specific, local, personal relationships, not conformity to impersonal law.”24 Although it was important to have legal officials who were familiar with the specific dynamics of each community, Lambarde challenged the historical validity of a JP’s discretion in order to mediate and centralize the way in which JPs exercised this authority throughout the counties as a way to bring consistency to the system, without having to seek judicial administration from elsewhere. This is important because it demonstrates how Lambarde provided a means of centralization to the law in the counties. If he could instruct local JP to use their discretion in a specific way, this would not only help to reduce

23 Lambarde, William Lambarde and Local Government, 92. 24 Wrightson, “Two Concepts of Order,” 25.

62 the amount of inconsistencies present within the execution of the law, but also, it in turn would help to ensure that the Crown’s desires were carried out at the local level. There were a number of efforts in the sixteenth century to bridge the gap of governance between the center and the localities, and Lambarde’s Eirenarcha demonstrates an example of this movement. In the following sections I will investigate this further, as Lambarde warned the JP and other judicial officials of the consequences of misusing their discretion.

The Maintenance of an Objective Approach to Law

In a charge delivered to the Sessions of the Peace in 1587, Lambarde revealed his intention to teach the Commission of the Peace not only the proper form and function of their office, but more significantly, to rid the commission of any form of corruption and abuse of power. Wall contended that it was a major dishonor for a man to be put out of the commission, and therefore

JPs desperately sought to avoid it. While there was obviously still certain forms of corruption taking place within the commission, most judicial officers would have been very susceptible to take heed to any advice that could help them avoid dismissal.25 Lambarde pointed out several instances within the administration of justice that he referred to as “byways and bypaths” that worked to “seduce and mire officials away from their responsibilities to the Crown.26 Lambarde noted that he had personally witnessed other judicial officers abusing their powers “so hasty and swift … to revenge their own or other men’s quarrels and so that they may thereby either satisfy their own private lusts or serve the other’s turn.”27 In others words, Lambarde acknowledged instances where certain local officials used their legal authority to execute their own personal

25 Alison Wall, “'The Greatest Disgrace': The Making and Unmaking of JPs in Elizabethan and Jacobean England,” The English Historical Review 119, no. 481 (2004), 318. 26 Lambarde, William Lambarde and Local Government, 88. Here, the term “mire” refers to being in a state of difficulty to which it is not easy to extract oneself from. 27 Lambarde, William Lambarde and Local Government, 90.

63 vengeance. Wilfred Prest argued that the widely held assumption of corruption on the part of legal officials in the early modern period stemmed directly from the cultural and social practices and norms of the time. Prest states that personal relations between patrons and clients, as well as kinship and family connections were a large part of everyday life throughout the early modern period and that, therefore, it is reasonable to suspect that judicial officials could mix personal feelings and judgments with the administration of the law. Consequently, this often resulted in special treatment given to family and friends and punishment to enemies.28 As Wrightson stated,

“the maintenance of order meant less the enforcement of impersonal regulations than the restraint of conflict among known individuals in a specific local context.”29 JPs worked within the confines of their counties and were often confronted with the conflicts of their friends and neighbours. This meant that the relationship between those administering the law and those seeking justice worked within an environment influenced by personal feelings, creating a more subjective approach to the law. Lambarde’s charge demonstrates a desire on his part to evoke an objective stance towards the administration of justice among his fellow JPs and other judicial officials, ordering them to not be “spurred on with desire of injurious revenge,” but rather to “go about this business with an even and steady pace, walking circumspectly in the Queen’s high, broad, and beaten way.”30

It is clear that Lambarde used the Sessions of the Peace as an opportunity to preach to the jury of their wrong doings and accordingly encourage them to behave otherwise. What remains significant, however, is that Lambarde also addressed this issue within the contents of

Eirenarcha. In chapter eleven of book one, concerning the jurisdiction and coercion of the JPs,

28 Wilfrid Prest, “Judicial Corruption in Early Modern England,” Past and Present 133, no. 1 (1991), 76. 29 Wrightson, “Two Concepts of Order,” 24. 30 Lambarde, William Lambarde and Local Government, 90.

64 Lambarde, within explaining the authority of a JP to apprehend and punish an offender, also warned the JPs of the consequences of erroneously executing their authority, which he reckoned could result in the implementation of an erroneous conviction. In order to effectively communicate this message, Lambarde outlined two other judicial powers belonging to their practice that he regarded as having room to contribute to the detriment of proper and efficient work on behalf of the JPs if knowledge of them were not sufficiently understood. In order for a

JP to be able to deliver justice they are “accomplished with double power, the one of jurisdiction and the other of coercion.”31 By way of this, JPs held the authority to convict an offender and

“constrain them to obey their order and decree” upon the hearing and judgement of a cause.32 As far as their jurisdictional authority, Lambarde explained that this was exercised for the most part by way of public trial because a breach of the peace was done against both the Crown, and the individual against whom the crime was committed. Therefore, the jurisdictional authority of the

JPs involved cases made by “criminal and public accusation, information, or presentment” as opposed to those made by civil or private action.33

Lambarde justified the coercive authority of the JPs by relating this power to that of “the ancient Conservators of the Peace” stating that at that time, those administrating the law “had only coercion in a few cases, and no jurisdiction in any case” that he could recall, and that therefore, the JPs were “by one half superior to them.”34 He explained, however, that if the JPs did not have the power to coerce or punish an offender upon the hearing and judgement of the accused, then they were no greater than those of the ancient conservators, stating that, “if the authority of these Justices should cease, when the fault is told, heard, and adjudged, then should

31 Lambarde, Eirenarcha, 65. 32 Lambarde, Eirenarcha, 65. 33 Lambarde, Eirenarcha, 66. 34 Lambarde, Eirenarcha, 66.

65 they be no better than half justices… and therefore the law hath also put coercion, execution, (or punishment) … into their hands.”35 Lambarde defined the use of coercion on behalf of the JP as an “orderly execution of a lawful judgement, laid upon an offender, by the minister of the Law,” and provided four reasons for why it was done.36 Firstly, to improve the behaviour of the offender, secondly, to make an example out of the perpetrator in order to prevent others from committing a crime, and thirdly, to maintain the credit of the individual that the crime was committed against. The fourth and final reason Lambarde stated was so that “the good may live in better security” upon the removal of “wicked men,” but he attributed this cause to capital punishments only.37

Seeking to investigate the balance between cooperation and coercion within the administration of the law in the early modern period, Alison Wall states that fear of punishment helped to promote and maintain obedience among the general population within the localities, and that minor crimes often received severe punishments in order to “impress with the majesty of the law, and to terrify the public and to make them obey.”38 The severe nature of the execution of justice not only prevented people from deviating from the law, but also provided the JPs and other legal officials with a significant amount of power within the localities that they could wield to their benefit. The concern Lambarde expressed in his charge brings to light how the nature of the law and the way in which the authority of the JPs was executed could have worked together to allow for vengeful justice to be made possible. Wall acknowledges the evidence of JPs who abused their position by punishing their enemies, referring to one JP, Simon Harcourt, who was

“imprisoned and dismissed as a JP for using the office for revenge,” violently throwing a man in

35 Lambarde, Eirenarcha, 67. 36 Lambarde, Eirenarcha, 67. 37 Lambarde, Eirenarcha, 67. 38 Alison D. Wall, Power and Protest in England, 1525-1640 (London: Arnold, 2000), 127.

66 the stocks and mocking him as he did it.39 While many JPs received either temporary or permanent dismissal for abusing their position and blatantly failing to perform the way the

Crown required of them, as Wall states, the government understood the limitations of dismissal and “could not risk alienating too many of their office holders whose voluntary work made it function.”40 Whether or not Lambarde recognized this limitation is unclear. What is apparent through the content of Eirenarcha is Lambarde’s mission to not only define the authority of the

JPs and the reasons for that authority, but also to mediate those powers by warning the JPs of the consequences of misusing them.

Just as the JPs used fear of the law to secure compliance within the counties, Lambarde used the law to inspire obedience among the JPs. During the latter half of the sixteenth century, as the Crown expanded upon the duties attributed to the responsibilities of the JPs, a number of substantial changes were occurring within the structure of laws, specifically within the area of criminal penalties.41 To develop a standardized form and approach to legal procedure, Lambarde first needed to established the types of punishments and penalties that the JPs were required by statute to execute. Lambarde provided the types of legal punishments attributed to the duties of the JP and separated them by corporal and pecuniary punishment. As a means to distinguish the

Roman civil law from the English common law, Lambarde provided a list of eight chastisements used by the Romans, which included “loss of goods, imprisonment, stripes, retaliation, reproach, banishment, servitude and death.”42 He explained that prior to the Conquest, England enforced

39 Wall, Power and Protest in England, 183. 40 Wall, Power and Protest in England, 183. 41 Peter Rushton, “Local Laws, Local Principles: The Paradoxies of Local Legal Processes in Early Modern England,” in Law, Lawyers and Litigants in Early Modern England: Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, et al. (Cambridge: Cambridge University Press, 2019), 191. 42 Lambarde, Eirenarcha, 67.

67 these punishments regularly, but notes that at the present time servitude, retaliation, and banishment were out of use. Of these punishments that were attributed to the duties of a JP, the common law divided into corporal and pecuniary. Corporal punishment included both deadly and non-deadly punishment, and as Lambarde explained, could be executed in a variety of ways including “hanging, burning, boiling, or pressing.”43 Noncapital punishment was also executed a number of ways ranging from “cutting off the hand or ear, burning (or marking) the hand or face, boring through the ear, whipping, imprisoning, [or] stocking.” Lambarde placed under pecuniary punishments the issuing of fines and the forfeiture of offices, goods, or lands.44 Because JPs did not have the authority to punish by death, it was very important for them to understand the weight of their authority to assess the circumstances of a crime in order to apply the most appropriate punishment to the offender. Therefore, they needed to know the exact types of punishments attributed to their duties. More importantly, it was pertinent for the central administration, which was responsible for allocating responsibilities to the commission, to understand the function of the office as well. What remains significant here, however, is the way in which Lambarde addressed the JPs with regards to the punishment of producing an inaccurate presentment leading to an improper indictment by the grand jury.

The correct preparation of a presentment was arguably the most important out of Session duty of a JP. As per the legislation leading to the Marian Pre-Trial Procedure, when a suspect was apprehended and brought to a justice, before committing the accused to pre-trial detention,

JPs were required to examine the offender and his accusers about the charges. This process was where a JP’s discretionary authority came into play, as the outcome of the offender, and appropriate deliverance of justice solely depended on the ability of a JP to properly discern and

43 Lambarde, Eirenarcha, 68. 44 Lambarde, Eirenarcha, 68.

68 confirm that all appropriate elements of a crime were present. Therefore, it was imperative for a

JP to understand the weight of their jurisdiction in order to avoid an erroneous circumspection of the crime at all costs.

In the remainder of his chapter, Lambarde warned the JPs that if any of them may by virtue of their role within the commission “deal with such Conspirators, as do confederate together, to cause any person unjustly to be indicted of Felony,” then there is a “special punishment in that case appointed by the law.”45 Lambarde explained that if an accused were to be wrongfully indicted of a felony, and afterwards that person was acquitted, “as some do think they may,” then by the statute termed “Villainous… and may be called Infamous” established during the reign of Edward III, a JP will be stripped of his oath, which “shall not be of any credit after” and forbidden to approach any of the Queen’s courts.46 Furthermore, their lands and goods shall be “ceased into the Queen’s hands, their trees uprooted, and they imprisoned.”47 This point directly reflects Lambarde’s charge to the jurors as he warned of the consequences of misusing their power and position. Here Lambarde is encouraging JPs to recognize the weight of their judgement and take all precautions to guard against false accusations of felony that may be presented to them by other legal officials. It was important for a justice to apply their discretion appropriately and take into account all the evidence prior to executing a charge.

Lambarde referred to the writ of attaint in order to establish a precedent for this form of punishment stating that by this writ the offender would receive punishment for perjury, “having somewhat more in it than Corporal or Pecuniary pain” extending to the “discrediting of the

45 Lambarde, Eirenarcha, 69. 46 Lambarde, Eirenarcha, 69. 47 Lambarde, Eirenarcha, 69.

69 offender for ever after.”48 The writ of attaint originated in the thirteenth century during the reign of Henry III in order to provide a remedy for the deliverance of a false verdict by a jury. Because jurors came to a verdict solely on the basis of their own personal knowledge, any jurors responsible for an erroneous verdict were punished for perjury by the attaint process, which involved a review of the verdict by a jury of twenty-four. If the attaint jury determined that an erroneous verdict was made, the jurors responsible were severely punished.49 While the writ of attaint became obsolete by the end of the fifteenth century, what Lambarde was communicating here is that JPs were responsible for the result of a verdict by way of their authority to judge and determine the state of a crime. Lambarde placed a high amount of importance on justices to apply their discretion in an objective and dutiful way as to forewarn against an erroneous charge leading to a false conviction.

In conjunction with their powers of discretion and coercion, while establishing the authority that JPs had and the ways in which it was to be executed, Lambarde was also critical of the nature of a JP’s authority. He provided this discussion as a way to mediate their powers in order to bring consistency to the execution of justice. Lambarde used his knowledge of the law to inspire a firm adherence to duty among the JPs. In accordance with his 1587 charge, it is clear that he sought to rid the commission of corruption and any abuse of power by emphasizing the role of a JP and urged his fellow magistrates to understand the weight of their jurisdiction and the consequences for deviating away from the Crown’s expectations. This ultimately demonstrates the way in which Lambarde, through his Eirenarcha, can be understood as a practicing JP, who was highly critical of the execution of the law and worked to achieve an

48 Lambarde, Eirenarcha, 69. 49 John Marshall Mitnick, “From Neighbor-witness to Judge of Proofs: The Transformation of the English Civil Juror,” American Journal of Legal History 32, no. 3 (1988), 203.

70 improvement to the Commission of the Peace. Furthermore, this proves that Eirenarcha was not simply a handbook to provide working JPs with a reference for their duties. Lambarde, while providing useful knowledge to aid lay JPs in the counties, also provided critiques and advice that demonstrate that his efforts were to produce a change in the way the commission was currently performing, ultimately leading to a greater enhancement of the Commission of the Peace. A deeper look into the more practical knowledge put forth in book one of Eirenarcha will further provide evidence of this endeavor.

Pre-Trial Procedure in Early Modern England

Lambarde first established the expression of authority that the JPs in the counties were provided with in order to explain how they were to perform their duties for the keeping of the peace. He explained that whether a JP, by virtue of his commission, enquired and determined lawful judgments by way of their jurisdiction, or worked to keep the peace and punish an offender by way of coercion, “it [was] always practiced and done either out of the Sessions of the Peace, or else at (or by reason of) the Sessions of the Peace.”50 The type of information provided in book one shows that Lambarde intended for the majority of the handbook to be for a JP outside of the

Sessions. Lambarde revised the handbook in 1588 in order to provide further information regarding the powers of a single JP out of the Sessions, demonstrating that his main concerns were with the considerable amount of duties JPs were to execute on their own throughout the counties.

50 Lambarde, Eirenarcha, 81.

71 In 1361, a statute adjured JPs “to take all of them that be [not] of good Fame… sufficient surety and mainprise of their good behaviour towards the king and his people.”51 Steve Hindle states that this statute formed the basis of the authoritative powers of magistrates to bind over offenders ever since, and Lambarde devoted a substantial amount of his Eirenarcha to explaining these procedures.52 In order to ensure that citizens throughout the counties were adhering to the law, JPs were “armed with authority” to prevent a breach of the peace by “taking surety for the keeping of it, and for the good behaviour also of offenders.”53 Lambarde dated this practice of taking surety to the time of the ancient Normans who had a “manner of surety of the peace which they named Treves, (the same that we call Truce,)” that they used to give an order demanding that an individual swear in open court to not commit an offence, whether that be against another person or otherwise.54 Lambarde explained that at the present time, the manner of taking surety had changed because “our Governors, knowing that evil men be more restrained by loss of goods than by conscience of an oath,” thereby required that upon taking surety of the peace, magistrates were to bind an individual in a fixed sum to ensure the security of those that be offended.

Therefore, Lambarde proclaimed that surety of the peace be “An acknowledgment of a bond to the Prince, taken by a Judge of Record, for the keeping of the peace.”55 Tim Thornton states that the sum of money for a bond of good behaviour could range from £40 to £1,000 and was issued to either a specific individual against another person, or to keep the peace in general. During the sixteenth century, this would have been a considerable amount of money, even at the low end of

£40 and demonstrates the immense amount of power that JPs had by way of this, and how

51 Steve Hindle, The State and Social Change in Early Modern England (Basingstoke, Hamp.: Palgrave, 2002), 98. 52 Hindle, The State and Social Change in Early Modern England, 98. 53 Lambarde, Eirenarcha, 82. 54 Lambarde, Eirenarcha, 82. 55 Lambarde, Eirenarcha, 83.

72 important it was that the bond be kept. Thornton contends that those individuals who were issued a bond were rarely parties to criminal action, and therefore the use of them was predominately a preventative measure taken to stop disputes from leading to violence.56 By this right, the practice of taking surety often involved the use of discretion, as JPs would have had to discern a conflict in order to determine the severity of the dispute prior to issuing a bond for the peace.

JPs were either commanded by the state to take sureties, or were required by way of their commission to execute this authority through their own judgement upon the observation of a crime. Lambarde distinguished between these two instances because the form of procedure differed depending on either case. He explained that a JP acted as a “Minister” if he was “willed to do it by a higher authority,” and a “Judge… when he doth it of his own power.”57 This distinction is significant because the use of a JP’s discretion only applied to one of these two scenarios. When a JP was required by the state to act as a minister, he would receive a writ of supplicavit, or breve de minis (writ of threats) delivered out of Chancery. In this case, the only authority the JP had by way of the writ was to compel the individual to find surety of the peace in accordance with the direction of the precept delivered onto him. Lambarde provided an example of a precept that may be delivered to a JP from the state for reference, however, he stated that warrants to JPs for the taking of sureties did not always come in this exact form as in some instances they could be issued to multiple JPs, JPs and the sheriff, or sometimes to one justice alone. At all times, however, the precept listed the individual whom was required to “find sufficient surety for her Majesty’s Peace,” as well as the person whom the peace was to be kept

56 Tim Thornton, Cheshire and the Tudor State, 1480-1560 (Rochester: Boydell & Brewer, 2000), 93. 57 Lambarde, Eirenarcha, 83.

73 for.58 The precept formally commanded and charged the JPs to ensure the individual provided

“sufficient surety and mainprise for the Peace to be kept,” and to convey them to jail if they refused to find surety, “to remain until that he shall be willing to do the same.”59 In this instance,

JPs were required to act only as the precept commanded them to and as far as the common law permitted.

On the other hand, a JP acting as a judge possessed the power to command an individual to find surety of the peace “of his own motion and discretion,” or at the request of another person.60 Lambarde explained that JPs were “Judges of Record,” meaning that they were entrusted with the duty of remembering and subsequently reporting on any “causes happening before them.”61 JPs were expected to “bear record of the pleas pleaded before them,” and use the record of the judgment made in order to discern the severity of the crime and determine the ensuing punishment of any subsequent offense.62 It was important for JPs to understand the width of their jurisdiction and execution of authority, as every judgement and decision made by them was then constituted as part of a legal precedent to be relied upon by other judicial officials.

Therefore, JPs were required to command an individual to provide surety of the peace by way of their own discretion. In this case, a JP acting as a judge would have to discern a breach of the peace and examine an offender in order to determine whether or not sufficient surety was required. Lambarde replied upon legal precedents in order to justify this practice, proclaiming that as per statute 9 Edw. IV, c. 3, a JP “May cause a Common Barrater, Rioter, one that maketh

58 Lambarde, Eirenarcha, 84. 59 Lambarde, Eirenarcha, 85. 60 Lambarde, Eirenarcha, 85 61 Lambarde, Eirenarcha, 69-70. 62 Lambarde, Eirenarcha, 72.

74 an Affray or other person to him Suspected, to find Surety of the Peace.”63 Lambarde made it clear that it was their duty as JPs to use their discretion and intervene in a conflict and command sufficient surety, proclaiming that if a JP

See men contending in hot words, and threatening the one to hurt (or kill) the other, he may of his Discretion and ought of Duty (as I think) to command them to find Surety of the Peace, and thereby provide for their mutual safety.64

Hindle contends that throughout the development of criminal procedure in the early modern period, discretion was “both a strength and weakness of the system.” 65 He states that the application of discretion within the process of the policing of the peace highlights the distinction between legal theory and legal practice, as the “fabric of criminal justice was shot with discretion at every level.” 66 The fact that Lambarde addressed the use of a JP’s discretionary powers and the consequences of misusing them prior to discussing how it was to be applied through the taking of sureties, demonstrates the way in which he sought to mediate the powers of a JP by attempting to mitigate the chance of a justice performing erroneously through the inapplicable use of their discretion. Moreover, this also demonstrates how Lambarde sought to communicate this information to the central administration in an effort to show not only the importance of a

JP’s discretionary authority within the administration of the law, but also how the unrestricted nature of a JP’s powers could cause discrepancies within the processes of criminal procedure, as the entire process rested on the use of their discretion.

When it came to the use of discretion for taking sureties, JPs also had the authority to request the taking of surety from another JP, which in that case the JP was thereby required to do

63 Lambarde, Eirenarcha, 86. 64 Lambarde, Eirenarcha, 86. 65 Steve Hindle, The State and Social Change in Early Modern England, 98. 66 Steve Hindle, The State and Social Change in Early Modern England, 98.

75 so. Lambarde warned the JPs that when either commanding surety of the peace at the request of another justice or by the use of their own discretion, several important factors were to be considered: who was the peace to be kept against and who was it to be kept for, what was the cause of the surety being taken and how was it to be required or commanded, and by what means was it be executed.67 Each of these questions were to be considered by a JP prior to the execution of taking surety, and Lambarde went on in great detail in order to aid the JPs with the consideration of them all. Lambarde provided examples for different scenarios and individuals who may demand the peace to be kept for in order to provide a JP with “light [for] what to do in like cases.”68 In cases of domestic abuse, wives might demand the peace against their husbands if they were “threatened to be killed, or to be outrageously chastised.”69 Oppositely, Lambarde stated that husbands might also seek surety against their wives for similar reasons, but any man was at liberty to demand surety against any wife of another. Lambarde provided a list of several individuals whom surety of the peace could be taken for, including “a man attainted of Treason, or Felony, or convicted of Heresy, or Abjured, a dumb man, or an Infant (though within 14 years of age) or a Villain against his Lord,” as well as any other man against any of the above individuals mentioned.70 He stated, however, that while a “dumb man” and a child over the age of fourteen could be demanded to provide surety of the peace, neither could be bound. What is notable here, is that Lambarde also provided a list of people that could not demand surety, of which included foreign or “Alien” individuals, as Lambarde explained, protection under the common law only applied to the queen’s people and JPs were only authorized through their

67 Lambarde, Eirenarcha, 87. 68 Lambarde, Eirenarcha, 90. 69 Lambarde, Eirenarcha, 87. 70 Lambarde, Eirenarcha, 88.

76 jurisdiction to provide for them only.71 Although, Lambarde acknowledged that foreigners could be bound to the peace, as there were no laws that stipulated against that. This section is significant as it suggests in and of itself that many JPs in the late sixteenth century were not privy to this information, and therefore, required a list of the types of people that could and could not request surety or the peace, or be bound by it. Furthermore, by providing the different types of people that could and could not demand surety or be bound by the peace, Lambarde was also limiting the use of a JP’s authority to take surety at the request of another or by means of their own discretion to the types of individuals he stipulated, demonstrating the way in which he sought to provide direction to the JPs by mediating the use of their discretion.

The first official appointment of the Commission of the Peace during the reign of

Edward III stipulated the requirements of the JPs with regards to the causes for which sureties of the peace may be required, stating that those that may be “threatened, that he shall be hurt in his body, or that his house or goods shall be burnt, may demand Surety of the Peace for his safeguard in that behalf.”72 In other words, any person facing a threat against himself, or his goods and possessions may request surety of the peace. Hindle explained that, of the different types of offences for which discretionary sureties might be commanded, assault on others, threats of assault, as well as affrays and batteries could all be committed within the presence of a JP.73

Seeing as how the use of a JP’s discretion was crucial in order to determine whether or not surety of the peace was required, it was important for a JP to be able to discern between different types of offenses. Furthermore, it was important for JPs to fully understand the matter of the offence when issuing either precepts to other JPs to take surety, or when issuing warrants of arrest to

71 Lambarde, Eirenarcha, 89. 72 Lambarde, Eirenarcha, 91. 73 Hindle, State and Social Change in Early Modern England, 99.

77 other officers, as Lambarde proclaimed, “for otherwise, how can the officer or Party, take knowledge, that Surety must be provided for it?” upon which he commanded that, “every Precept ought to comprehend the special matter upon which to proceed.”74 This point is crucial, as

Lambarde distinguished between the definitions of different types of offenses, specifically between words of affray and assault, while explaining how a JP may punish a breach of the peace.

Lambarde acknowledged that the use of words of affray and words of assault were executed differently depending on the individual. More importantly, he stated that the law books at the time also distinguished between the two in a variety of different ways, presumably making it difficult for JPs to discern between the two. In an effort to centralize the process of discernment regarding assaults and affrays, however, Lambarde confessed that he did not see a significant difference between them. He explained that the word affray derived from the French word effayer, meaning to “terrify or bring fear,” and which “the law understood to be a common wrong done,” and therefore was an offense deserving of inquiry and punishment.75 An affray, however, was not only committed either physically or with the use of one’s words, but could also be done by the personal display of a weapon or armour, which he declared, was “not usually worn and born,” but would ensue fear in those taking witness to it. Furthermore, the Statute of

Northampton (2 Edw. III, c. 3) was against the wearing of armour and weapons, and Lambarde stated that the writ “thereupon grounded, do speak of it, by the words effray delays” (frightened displays) and “in terrorem populi” (the fear of the people).76An assault on the other hand, derived from the Latin word assultus, which Lambarde explained, denoted a “leaping (or flying)

74 Lambarde, Eirenarcha, 96. 75 Lambarde, Eirenarcha, 134. 76 Lambarde, Eirenarcha, 134-135.

78 upon a man,” and may be done either through physical force, or by “fearful speech.”77 As

Lambarde stated, “to rebuke a Collector with foul words, so that he departed for fear, without doing his office… and to strike at a man (although he were neither hurt, nor hit with a blow)” was judged an assault.78 Therefore, just as in the case of affrays, assaults were defined as offences that were committed against an individual either through the use of one’s words, or with the use of physical force whether or not either or caused real harm, and so Lambarde stated that

“there wanteth not a just difference between them in my own opinion.”79 This point is significant as it directly highlights some of the more practical difficulties JPs would have been confronted with as they used their discretion to inquire upon offenses. By addressing the distinctions between certain elements of offence, Lambarde was able to provide JPs with a more concise understanding when confronted with either a threat or act of assault or affray, while also demonstrating to the Crown a sense of the more practical difficulties the average JP would have been confronted with on a daily basis.

Lambarde also provided definitions between different sorts of unlawful assemblies, specifically regarding riots, routs and conventicles (unlawful religious assembly not sanctioned by the law), and discussed in great detail the means for which JPs should proceed in regards to them. During the early modern period, riots were a fact of political and social life in England.

Andy Wood argues that large-scale rebellions throughout the early modern period were predominately stimulated by an increase in taxation. Examples of such forms of riot included the

1525 rebellions against the introduction of the Amicable Grant under Lord Chancellor Thomas

Wolsey during the reign of Henry VIII. Opposition to the Grant resulted in rebellion within the

77 Lambarde, Eirenarcha, 135. 78 Lambarde, Eirenarcha, 135. 79 Lambarde, Eirenarcha, 134.

79 counties of Kent, Essex and Suffolk as thousands gathered agreeing to rise “at the sounding of bells.”80 While the threat of rebellion did not escalate further due to the Crown’s willingness to negotiate, the rebellions of 1536 were marked with much more intense opposition due to the

Crown’s desire to remove parish churches, passing an act to dissolve all minor monastic houses in England. This resulted in the imposition of new taxes on “christenings, marriages, burials, sheep, cattle and basic food stuffs,” confirming public anxieties of the growing ambitions of the central government.81 As a result, in October of 1536, the county of Lincolnshire rebelled in

“armed demonstration” in an effort to combat such policies, ending with the murder of the

Chancellor of the Bishop of Lincoln, who was held responsible for the “local implementation of the Henrician reformation,” as the city was seized by 10,000 armed rebels.82 Lambarde would have grown up in a time when public displays of aggressive opposition to the policies of the central government were a common act, representing a direct threat to the internal stability of the

Crown. Therefore, it was crucial for JPs to know how to deal with these types of unlawful assemblies, but more importantly how to identify them prior to any escalation.83

Riots and rebellions were still a concern towards the end of the sixteenth century, as

Lambarde acknowledged the severe threat of “breaches of the Peace with a multitude,” stating that the “assembly of many for breach of the Peace, offereth more danger and hurt, both generally to the Common wealth wherein it happeneth, and particularly to him against whom it is bent, than the force of any one or two turbulent persons can bring.”84 Lambarde distinguished between three kinds of breaches of the peace involving a multitude, that is, “Riots, Unlawful

80 Andy Wood, Riot, Rebellion, and Popular Politics in Early Modern England (Basingstoke: Palgrave, 2002), 50. 81 Wood, Riot, Rebellion, and Popular Politics, 50. 82 Wood, Riot, Rebellion, and Popular Politics, 50. 83 Wall, Power and Protest in England, 146. 84 Lambarde, Eirenarcha, 172.

80 Assemblies, and Routs,” stating that while these three were the more common, “concerning the proper difference that is between each … all men do not thoroughly agree.”85 Therefore, he offered direction to the JPs in regards to how to ascertain between the three. A riot occurred when a group of men gathered together and proceeded to “beat a man, or to enter upon a possession forcibly, or such like.”86 An unlawful assembly, however, occurred when a minimum of three people gathered together with the intention of committing an unlawful act, but do not carry it through. In this case, although the group may not have committed a physical breach of the peace, the offence lay within the intention to do so. As for a rout, Lambarde defined as a

“band or great company gathered together and going about to execute, or executing in deed any

Riot or unlawful act.”87 It was important for a JP to understand the difference between the three, as while it may be straightforward to comprehend the distinction in theory, as Lambarde explain, in practice these differences could be more difficult to decipher.

Lambarde demonstrated that the manner in which a group of people conducted a particular act could make it unlawful, and that therefore, “the Order and Circumstance of the doing must also be brought into judgement with it.”88 For example, while “many in one company” may all together go lawfully to “the Sessions, Fair, Market or Church,” if they go armed “to the terror of the people,” than the manner or intention of the procession would make it unlawful, and therefore considered a breach of the peace of a multitude.89 This demonstrates how essential a JP’s use of discretion was when deciphering between unlawful acts, both of a multitude or otherwise. Lambarde sought to highlight the way in which a JP’s ability to

85 Lambarde, Eirenarcha, 175. 86 Lambarde, Eirenarcha, 175. 87 Lambarde, Eirenarcha, 177. 88 Lambarde, Eirenarcha, 177. 89 Lambarde, Eirenarcha, 177.

81 determine the character and manner of a group of people and subsequently discern the intention behind any act committed by the group was a key endeavor in order to be able to suppress or prevent a riot or unlawful assembly through the taking of sureties. Lambarde demonstrated through his Eirenarcha that while the duties of a JP to suppress social and political instability were undisputed, the more practical difficulties of a justice lie within the ability to apply their discretionary authority to a particular circumstance and breach.

The advice provided in Eirenarcha shows how the practical application of the common law significantly depended on a JP’s ability to apply their discretion and judge the correct form of approach when striving to keep the peace within the counties. The guidance offered by

Lambarde demonstrates how a JP’s role within the counties involved the practice of making difficult decisions while also maintaining an objective stance through the use of the common law. Lambarde emphasized the approach a JP was to take when dealing with riots and unlawful assemblies, stating that by the power of their office they could seek to prevent either or from occurring through the taking of sureties, or the confiscation of weapons, however, a single JP could not inquire upon a riot or unlawful assembly once is had already taken place.90 This information, while highly useful for the ordinary JP out of Sessions, and would have also been informative to the central administration, as an understanding of the everyday problems a JP faced outside of the Sessions would have helped to show the areas of their office and role that could be improved upon, subsequently promoting a greater enhancement to the commission.

90 Lambarde, Eirenarcha, 180.

82 Conclusion

Lambarde’s Eirenarcha helped to bring to light on the exact way JPs were to properly and efficiently perform their duties for the Crown. By focusing on a JP’s out of Sessions work,

Lambarde revealed where the majority of his concerns for the commission were, and thereby, where the central government should focus its attention, in hopes that it would lead to a greater revision of the commission and thereby, better execution of the law. The hallmark of a JP’s role was the use of his discretion. As per the official sanctioning of the commission in the fourteenth century, JPs were legally given the power and freedom to assess an offence and subsequent treatment of an offender in any way that they essentially saw fit. Moreover, because JPs worked within the communities they lived in, they often exercised their duties to and among those with whom they were well acquainted. Both of these factors worked together to bring about discrepancies in the way justice was administered throughout the counties, but also, creating an environment that enabled judicial officials to misuse their authority. Lambarde was aware of the corruption within the commission, and sought to mediate the discretionary authority of a JP in order to eliminate any corruption present within the operations of local government. By focusing on the taking of sureties, Lambarde was able to highlight the use of, and more significantly, the limits of a JP’s discretionary authority, while also offering specific definitions for different types of crimes in order for JPs to better assess the circumstances of a criminal offence and appropriately apply their discretion. This demonstrates how Lambarde did not only produce the

Eirenarcha as a guide for JPs, but rather, it was a tract that highlighted issues within processes of judicial administration in an effort to amend those errors. Lambarde sought to centralize the execution of the law by offering his own professional opinion to the current state of affairs

83 within the Commission of the Peace, demonstrating Lambarde as a central player in the process of legal centralization in early modern England.

84 Conclusion

William Lambarde and His Legacy

William Lambarde was not only a scholar of the common law. He was an active legal commentator and reformer, critical of the application of the law and the operations of judicial administration. His knowledge of history and the common law enabled him to apply the study of the past to the present, constructing a guide that not only provided his readers with a great depth of historical knowledge but also equipped them with a contemporary understanding of the law and limits of its application. By demonstrating how Lambarde was more than the antiquarian that previous scholarship has interpreted him to be, this study has also shown how Eirenarcha was more than a handbook for the Justices of the Peace, as it has been solely regarded. Instead,

Eirenarcha was a tool of communication that bridged the gap between the Crown and its officials in the localities by highlighting long-standing issues within the operations of local government and informing the central administration of ways to amend those errors to bring about a revision of the commission, and thereby, enhance the function of local government throughout the counties.

Lambarde's early scholarly work at the Inns of Court helped to establish his reputation as a resident legal historian, proven by his distinguished achievements and contribution to the

Society. It is likely that based on his earlier success while studying law at the Inn, he was approached by the lord chancellor to construct a handbook for JPs, knowing that Lambarde would be the right person for the task. Lambarde was admitted to the commission in August of

1579 but was not sworn in until June of the following year, arguably to give him time to finish the module that would later become the Eirenarcha. In his letter to Lord Chancellor Sir Thomas

Bromley, Lambarde acknowledged him as his patron, dedicating to him the Eirenarcha, while

85 making clear of the fact that he had hoped Bromley would acknowledge the discrepancies

Lambarde had revealed within the function of the Commission of the Peace, and upon doing so, rectify the situation. While Bromley died in 1587, making no changes to the commission, the office received many of the recommendations Lambarde provided three years later.

In 1590, the Commission of the Peace underwent an extensive revision for the first time since the fourteenth century by Sir Christopher Wray (1524-1592), Chief Justice of the King's

Bench. It is impossible not to see the parallels between the 1590 revision and the advice and recommendations Lambarde offered in his 1582 edition of Eirenarcha. The most notable change the new commission instituted were two relevant clauses that limited the power of JPs. The first made it essential that all cases requiring presentment before a jury were with at least one member of the quorum. The second was a provision known as cacus difficultatis (translating to blind handicap, or presumably, a lack of knowledge). It required all local JPs to refer to any complex cases or questions of law to the Serjeants' Inn, London, which formally trained judges with more technical training in the law and legal intricacies. Essentially, the clause formally required that all trials of capital felony became the jurisdiction of the Assizes. More significantly, it ensured that all major criminal offences were dealt with solely by the judges of Assizes, demonstrating the desire of the central government to keep all capital felonies out of the hands of their county officials lacking in formal legal training.1 This decision suggests that the central administration had become more aware of the capabilities (or lack thereof) of their judicial officials in the counties when it came to their knowledge of the law, ensuring that those with no formal legal

1 Derek Dunne, Shakespeare, Revenge Tragedy and Early Modern Law: Vindictive Justice (London: Palgrave, 2016), 27; Larry M. Boyer, “The Justice of the Peace in England and America from 1506 to 1776: A Bibliographic History,” Quarterly Journal of the Library of Congress 34, no. 4 (1977), 317.

86 training were only dealing with offences that their knowledge and experience enabled them to handle.

The revision introduced a formal reference regarding the powers of the office, which recited all the statutes dealing with the responsibilities of JPs, demonstrating further evidence of

Lambarde's influence. The revision also instituted a formal charge delivered to the justices, encouraging them to be diligent in their work.2 This emendation directly reflected the changes

Lambarde sought to bring about through his Eirenarcha as well as the overall message within his charges to the juries, urging them to effectively and conscientiously perform their duties. The revision of the commission meant that Lambarde now had nineteen passages to revise in his next edition of the Eirenarcha. The 1591 edition of the handbook was partially printed with these revisions, including a “forewarning to the readers” addressing this amendment “to purge the last

Commission of the Peace from all its imperfection for which this book of mine had long together challenged.” Lambarde also instructed his readers with earlier editions of the handbook as well as booksellers with previous copies to “withdraw the former commission out of this present book and place thereof to insert that other which is so lately reformed.” He indicated precisely where readers could omit statements of “unserviceable mention,” and replace with new information reflecting the revised commission.3 All subsequent editions of the Eirenarcha from 1592 were printed to conform to the precise changes of the 1590 revision of the Commission of the Peace.

In the fashion of his original pursuit, Lambarde did not remove the description of the old commission, but rather set alongside the changes of the revision with the description of the old commission in order to show “how many accessions it received in process of time, and how

2 Boyer, “The Justices of the Peace in England and America,” 317. 3 William Lambarde, Eirenarcha: Or of the Office of the Iustices of Peace in Foure Bookes, (1591).

87 (being of late years unregarded) it was so fallen into corruption that of necessity it ought to be redressed.”4

Lambarde's Eirenarcha helped to inform his readers of precisely what was and what was not the duty of a JP. As demonstrated, his focus on the history of the commission, the historical development of a JP’s role and duties, the types of men who should be appointed, and the historical significance of their oath to office, enabled him to offer advice to the central government of the proper way that the commission should be managed and maintained.

Moreover, by focusing on the powers of a lay JP and the areas of their jurisdiction that were open to error, Lambarde was not only able to guide working JPs as they perform their duties in the localities, but also demonstrate to the Crown where specific issues in their office could arise.

It is easy to conclude that Lambarde’s complaint of “stacks of statues,” breaking the backs of justices, along with his judicial advice and recommendations had not gone unnoticed, prompting the need for a more accurate definition of the duties of a JP. Based on the evidence presented, there are a number of reasons to credit Lambarde with having a hand in establishing the stipulations of the 1590 revision of the commission.5

By 1592, the Lord Keeper, Sir John Puckering, appointed Lambarde as extraordinary master in Chancery, and at first instance, he acted as the master assigned to the Alienations

Office.6 This position allowed him to handle the Chancery records, in which he noted precedents of proceedings and collected other record materials for the Court of Chancery. The level of success he received from his Eirenarcha due to the depth of knowledge demonstrated within the

4 William Lambarde, Eirenarcha: Or Of the Office of the Iustices of Peace in Foure Bookes, (1599), 41. 5 Wilbur Dunkel, William Lambarde, Elizabeth Jurist 1536-1601 (New Brunswick: Rutgers University Press, 1965), 118. 6 P.R. Glazebrook (ed.) (1972) Eirenarcha or of the Office of the Justices of the Peace 1582, William Lambarde (London: Professional Books Limited), 10.

88 work enabled him to receive such a position as it showcased his knowledge and skill for working with legal records. Moreover, the collections he made for the court of Chancery helped to produce Cary's Reports (1650) and Choyce Cases in Chancery (1672), in which all the material before 1601 was Lambarde's.7

Not only were Lambarde's efforts reflected through the revision of the Commission of the

Peace, which was arguably his primary mission but also legal scholars highly regarded his work well into the seventeenth century. William Fulbecke's Direction or Preparative to the Study of the Law (1600), which addressed the kinds of attitudes, habits and practices used in regards to the study of the law, praised Lambarde's Eirenarcha for its method and approach. Fulbeck commended Lambarde for his “pains, learning, and law,” which he acknowledged had been

“conducted by so curious a method, and beautified by such flowers of learning, that he may well be sorted amongst them to whom the law is most beholden.”8 Fulbecke complimented

Lambarde's eloquent style of writing, depth of knowledge of the law and use of antiquities. He also condemned those who may have found fault in Lambarde's approach to the common law, arguing that Lambarde had been “so universally beneficial to the whole Realm, that who so ever despiseth his works, bewraieth himself.”9

As has been demonstrated, Lambarde went into great detail in regards to a JP's power and discretionary authority to advise JPs of the proper use of their discretion, while also demonstrating the limits to their jurisdiction. By the end of the sixteenth century and well after

Lambarde's death, the duties, jurisdiction, and authority of the untrained justice became the subject of numerous handbooks, the majority of which repeatedly cited Lambarde's Eirenarcha.

7 Glazebrook, Eirenarcha, 10. 8 William Fulbecke, Direction or Preparative to the Study of the Law (London: J. and W.T. Clarke, 1829), 74. 9 Fulbecke, Direction or Preparative to the Study of the Law, 64, 74.

89 Michael Dalton's The Country Justice (1618) focused on “Justices of the Peace out of their

Sessions,” and was constructed “for the better help of such Justices of the Peace as have not been much conversant in the study of the laws of the realm.”10 Much like Lambarde, in order to effectively address the duties of a lay JP, Dalton focused on the “powers” of the untrained justice, ranging in alphabetical order from those dealing with “alehouses,” to “weights and measures.” The alphabetical structure of the handbook was revolutionary and became a model for the structure of other handbooks that dealt with similar subject matter later on.11 Similar to the Eirenarcha, Dalton's guidebook also provided a definitive understanding of different types of criminal offences and distinguished between those that specifically required the use of a JP's discretion. Citing Lambarde, he explained the differences between the way JPs could demand sureties (either as a minister or as a judge) and identified sixteen different offences for which JPs should command discretionary sureties, all in the same manner as Lambarde's Eirenarcha.12

Dalton’s guide became the standard reference for JPs in the years following the last publication of Eirenarcha. It is clear from its content and structure that Dalton gathered much of his material and influence from Lambarde. By the mid-seventieth century, Lambarde's legacy stood among those associated with legal scholarship and reform.

An image from the title page of A Manuall or Analecta Formally called the Compleat

Justice (1656) features Lambarde among the depictions of Crompton, Dalton, Edward Coke and

Edward Littleton, solicitor general, and lord chief justice of Common Pleas. The image demonstrates that not only was Lambarde associated with other great legal writers of the time but also provides evidence of his recognition as worthy to stand among those credited with law

10 Michael Dalton, The Countrey Justice Containing the Practice of the Justices of the Peace Out of their Sessions (London, 1635). 11 Boyer, “The Justice of the Peace in England and America,” 318. 12 Dalton, Country Justice, 127, 128. Lambarde, Eirenarcha, 83.

90 reform in the early modern period. Lambarde's Eirenarcha revealed discrepancies in the operations of judicial administration and evoked change in the way the role and duties of a JP were to be understood and managed, leading to a revision of the Commission of the Peace that reflected the nature of his advice and recommendations. In the Epilogue section of Eirenarcha,

Lambarde stated that he had hoped he had not been “deceived in laying down overboldly [his] own opinion,” and that if so, he was “no less gladly [to] be admonished of it.”13 The 1590 revision of the Commission of the Peace, and indebtedness many legal scholars had for him and his work, demonstrates that his opinion was greatly received and commended.

There is no denying that Lambarde was a legal scholar and antiquarian, well versed in the laws of the English past. Recognizing the importance of history, he used his knowledge of the past to bring about tangible changes to the commission, elevating his expert knowledge of the law and his historical image as a legal scholar. What this investigation as shown is that

Lambarde was indeed a central figure in the process of state formation in early modern England, rightfully pushing for judicial reform with his feet firmly planted in both the scholarly and contemporary worlds.

13 Lambarde, Eirenarcha, 511.

91

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