October 16, 2009

Law and History


In 1959, John Pocock published what has become a key text in the history of English Political thought. The Ancient Constitution and Feudal Law charts the development of a set of ideas about the English past in the thought and political ideology of a number of lawyers: it suggests through an exploration of the paradigmatic figure of Sir Edward Coke, that this understanding of England's past played a vital role within seventeenth century history and controversy. Pocock's work touches on a vast theme which is that there are two groups of people interested professionally immediately in the past- one group are historians, the others are lawyers. History has not ceased to be important to lawyers today: currently in the US there are a group of conservative lawyers, headed by Justice Antonin Scalia, who argue for an originalist interpretation of the American constitution. The constitution, according to Scalia and his allies, should be interpreted in the way that it was written: the words should be applied with the intentions of the founders in writing those words down in mind. There are many problems with this idea about the constitution: some are picked up on in this article on History News Network, but there are deeper methodological problems involved in Scalia's project. First of all any constitution is a compromise document: the words are vague because they are intended to appeal to everyone in the room at the time- whose interpretation should a judge pick later as the 'original' interpretation?

There is however a greater problem implicit in Scalia's logic. Lawyers and historians do not think in the same way and do not want the past to work in the same way. Historians are in general interested in what the past has to offer as a totality: as a historian if I analyse eighteenth century America I want to see it in all of its complexity and abundance, I do not want to isolate (any more than I have to for reasons of practicality and time) any aspect of it from any other aspect. My enterprise is to understand the world as they saw it. Lawyers are not in that business. They are in the business of finding a precedent and abstracting it from that time forward into this time: they weigh and discuss precedents against each other. The discipline is very different: and the failures of lawyers in conceiving of history from Sir Edward Coke forwards was one of the subjects of Pocock's work. But it is important that we realise why lawyers fail as historians: it is not that they are stupid or wrong, but that they want to use the past for a different act- Justice Scalia is not interested in anything that does not effect his precedent. His problem is that everything, accurately understood, effects his precedent in the period he wants to abstract the law from. Consequently he has to be selective to do his job, ie be a judge, consequently he cannot find the original intention he so desires to abstract.

Originalism is not a sensible judicial doctrine not because it is unappealing as law but because it is unsound as history. Lawyers cannot recover the original intention of an act or a constitution, particularly something which was formed as a consequence of many intentions. They can arbitrarily insist upon a fragment of history that they choose to drag forwards, but in doing so they must abandon the argument that what they are doing is in any sense originalist. They must concede that they like their opponents are creating interpretation as opposed to restating interpretation. Sir Edward Coke may have been fixated on the past and the unchanging essense of English law: actually as Pocock showed he never understood the context of the law he quoted and became thus a great legal innovator rather than a great legal conservator.

Methinks despite the rhetoric of originalism and traditionalism, the fate of conservatives like Scalia is to become radicals who misuse historical evidence.

October 15, 2009

An Historical Irony

Catholics fought in the English Civil War. Parliament accused the King of using papists to do his work on the battlefields of England and increasingly on the battlefields of Ireland. In part this accusation was tied up with the ethnic politics of English domination of the British Isles, fears of Irish barbarism and Irish massacres- but in part it was a religious prejudice. Englishmen consumed Foxe's Book of Martyrs with its grisly tales of the fates of Protestants under a Catholic regime, knew about the savagery of religious warfare between the Protestants and Catholics in the Thirty Years War (as well as in earlier conflicts stretching back to the time of Luther) and since 1570 there was always the possibility, lurking in Protestant Anglophone minds, that the Catholic minority were a fifth column, dedicated to fulfilling the Pope's excomunication and slaying the English King or Queen. Indeed one of the moments that precedes the English Civil War is the Bond of Association (1585) in which the nobility of England associated in declaring that should Elizabeth I be killed, then they would lynch her most likely successor Mary Stuart, the Catholic Queen of Scotland (then a prisoner in England).

Catholics were not the flavour of the month for most Protestants and it was believed by some and said by many that their strength lay behind the King's armies. William Shiels in a section of an article published in this collection examines the claim and what he finds is I think rather interesting. What Shiels finds is that Catholics did fight predominately for the King- they were a resource that Charles used. However in county studies, say of Worcestershire, Shiels finds that most Catholics remained neutral. A fascinating picture emerges though if you look at where most Catholics were recruited to the King's army. In Puritan heartlands such as the south midlands or East Anglia, only 10% of the King's officers recruited from the region were Catholic: however the figures for Northumberland 39%, Durham 38% and Lancashire 60% were very different. Shiels explains the differences by suggesting that in the north and west, Catholics remained active politically in the local arena whereas in the south and east, Catholics had been drummed out of local politics and become more quietist.

It is an interesting theory. There are two reasons for caution. The first is demographic- there may simply have been more Catholics in the north and therefore naturally the King will have recruited more Catholics. Our results may be skewed. The second is that as Newman has commented, very few of the King's Catholic officers directly held office within the commonwealth. Newman's conclusion is important but officeholding is not the same as influence- and the persistence of a large Catholic landed class in the north and west meant the persistence of large Catholic influence in counties like Lancashire and Cumbria. If we accept Shiel's argument, and at the moment I am prepared to partly accept it, it prompts a further reflection about historical irony. It was Charles I's ancestors using the power and strength of the English and later British monarchy who exterminated Catholics in the southern counties: Henry, Elizabeth and Charles's father James all were active anti-Catholics. In the civil war, Charles needed the Catholics of England to rally to his banner and found south of the Wash that there were too few to do so: his ancestors had been too successful and therefore the army that protected the monarchy was smaller than it might have been.

If I were a puritan or religious at all I would detect providence. Being neither this is yet another irony of history.

October 11, 2009

Articles of Ransom

Barbara Donagan's book (cited below) is a treasure house of interesting history about the customs of war. One of the more interesting evolutions that she briefly discusses is the evolution in the articles of war issued by English commanders. Roughly speaking articles of war were issued every time an army went on campaign and governed the behaviour of troops in the field. Articles in the Civil War for instance forbad stealing from civilians, laid out punishments for insubordination, mandated officers to escort their men to prayer and sermons and described penalties for moral crimes (fornication, drunkenness, rape). Looking at the articles of war we can see changes across the centuries- from Richard I's articles in 1189 to Henry V's in 1422 and finally in the civil war period itself. Amongst the most notable of those changes is the position of ransom.

Until Henry VIII's articles, the articles include complicated equations for how to ransom a prisoner. These calculations range from how much to ransom a prisoner for to how much of such a ransom was due to the soldier who took the prisoner, his officers and the King. They also allowed an exception to the prohibition on taking children prisoner- children of high value nobility or of the rich might be taken for the purposes of ransom- an exemption which vanishes later. By the time of the Earl of Northumberland's articles in 1640 and the Earl of Essex's in 1643, such ransom discussions have vanished. Ransom is no longer the main reward for soldiers in the field- rather it is pay. The English Civil War saw frequent disputes about pay amongst the soldiery- particularly famously in 1647 but there are rumblings of discontent in the New Model Army throughout the later forties and early fifties. Moving from ransom to pay though changes the relationship between the soldier and the state fundementally.

The change produced is that the soldier is no longer involved in war in order to capture prisoners- but involved in order to receive pay. War is organised by a bureacratic state rather than by privates enterprising to catch the nobility and hold them for ransom. In a sense part of medieval warfare was kidnap for a ransom: in early modern warfare that changes. What therefore changes is that the soldier is much more dependent upon the state for his sustenance and his future after the war: he is also bound to his fellows more, instead of competing to get the best target for ransom, they are all attempting to get the best salary. The other truth emerging from this is how far this reflects the ability of the state to raise finance to pay its armies: the seventeenth century was a time of fiscal experiment. James, Charles, Cromwell and William III all in different ways tried various experiments to raise more money- the pressure upon them was the growing cost of war, what that produced was eventually the National Debt and the Bank of England.

The story of soldier's salaries therefore forms part of the story of the evolution of the modern fiscally powerful state.