Contested conversations in early modern England

Historians of early modern Europe have in recent years increasingly turned to the wide range of records produced by institutions of the law, whether ecclesiastical or secular, criminal or civil. One of the strengths of such records is the light they throw upon relationships and attitudes at local, neighbourhood levels: not least, but not only, those concerning gender. Within this broad current, the ecclesiastical courts have provided important insights into questions of familial and gender relations and moral values. The extent to which later seventeenth-century church courts in different areas could be described as ‘women’s courts’ varied, but everywhere they were characterised by high levels of female participation. This in itself probably contributed to past historians’ dismissive attitudes towards the courts. For a legal historian of the post-Restoration York courts writing in the early 1960s, defamation suits were a particularly ‘tedious’ form of litigation, ‘back-yard squabbles between members of the lower classes, usually women’.¹ The attention paid to the records of the church courts by early modern historians in recent years reflects, to a considerable extent, significant shifts in historiographical priorities; historians have increasingly looked beyond the elites that had dominated much history-writing.² Research based on church court records has demonstrated, for example, that concerns with ‘honour’ and ‘reputation’ were far from being the preserve of elite groups, that reputation had significantly differing implications for men and women and that women played important, but contested, roles in informal surveillance and publicising behaviour, maintaining and destroying reputations.³

It had also been argued, notably by Christopher Hill, that the ecclesiastical courts from the sixteenth century onwards were increasingly unpopular, ineffective and anachronistic.⁴ This analysis, however, rested on contemporary attacks by common-law rivals and by puritans in conflict with the politico-religious establishment represented by the church courts, rather than on examination of the archival records.⁵ Set in the wider context of early modern legal institutions, the church courts were no more inefficient or corrupt than their secular counterparts, and the activities and concerns of spiritual and secular courts overlapped considerably: there was no clear dividing line between ‘sin’ and ‘crime’.⁶ Moreover, both depended for their existence and functioning on a wide range of participants, on unpaid officials and ‘private initiative’.⁷ Martin Ingram has concluded that until at least 1640, the church courts were ‘in reasonable accord with the values of the wider society’.⁸ Laura Gowing has warned, however, against too easily assuming a simple fit between ‘ecclesiastical justice and popular morals’. Those who used the courts did so actively and for their own purposes, to advance or defend individual or group interests: ‘we cannot assume an unproblematic community whose moral interests and ideas were more or less in accord with those of lawgivers in the spiritual and secular sphere and more or less the same across the differences of age, class, family, and gender’.⁹ Natalie Zemon Davis’ comment regarding French pardon letters seems relevant here: ‘not an impermeable “official culture” imposing its criteria on “popular culture”, but cultural exchange, conducted under the king’s rules’.¹⁰

The aim of this thesis is to explore these ‘backyard squabbles’ as important examples of the dynamics of sexual and neighbourhood politics in the city of York in the later seventeenth century, a period which has received rather less attention from historians researching defamation than the century preceding the Civil Wars. Moreover, it will focus on the use of language as a weapon and instrument of power: ‘the power to name and to create the world through naming’.¹¹ It will draw upon the work of sociolinguists and anthropologists who have criticised orthodox linguistics for artificially separating linguistic codes from the use of language and ignoring the social and political conditions of linguistic practice.¹² This is language viewed as ‘an active force in society’,¹³ not an abstract concept located somewhere ‘outside’: words with the power to wound, words to fight with, words with material consequences. And it is gendered language, with differing meanings for women and men. To paraphrase Susan Harding, this about how women and men use words and how words use them.¹⁴

Following the editors of a recent collection of essays on women, crime and the courts in early modern England, this thesis is founded on a conviction of the vital importance for early modern historians of ‘a greater understanding of the role of gender in the construction of ideas and the structures of life’. Like them, I view the records of early modern courts as vital ‘for our understanding of a variety of social and political relationships’.¹⁵ The ecclesiastical courts, in particular, dealt with issues of central concern to historians of women and gender: marriage and family relations and sexual conduct, in a society where these were highly ‘public’ issues. Moreover, women themselves participated - as both plaintiffs and defendants - in these courts to a far greater extent than was the case in the secular courts. The church courts, significantly, permitted married women to litigate in their own names, in contrast to the situation in common law.¹⁶ And many did just that to defend their good name in the defamation causes studied here.

However, not all of the litigants were women, by any means. This is a study of ‘gender’ for a number of reasons. The first is that these records offer opportunities to study the relations and interactions between women and men as well as those amongst women and amongst men. I would argue, indeed, that only such a relational and comparative approach makes it possible to fully understand the particular significances of defamation for women. Further, it is essential for a close examination of that crucial (and highly gendered) early modern institution, the household, in ‘public’ interactions. Very often, defamation causes were far from being simply about the individuals named as plaintiff and defendant. The overwhelming majority of the female plaintiffs in the York defamation causes that are studied here were married; many of these were not only defending ‘personal’ reputation, but that of their household as a whole. Further, a number of causes show husbands and wives in joint attacks on their neighbours, sharing interests and concerns - and enmities.

Secondly, it is possible through these records to explore not only ‘everyday’, lived gender relations but also the symbolic construction of gender through language: ‘the ways societies represent gender, use it to articulate the rules of social relationships, or construct the meaning of experience’.¹⁷ In many cases the content of insults should not be taken literally: sexual insults could be weapons in a range of battles. But even in such cases, and even where the insult was most vague and ‘conventional’, its power to wound did clearly depend on its content. The words were not accidental or arbitrary; they represented widely shared and deeply held sets of values - by detailing their opposites. The records of sexual defamation enable us to explore aspects of ‘everyday’ ways in which agents at the ‘local’ level actively used widely available linguistic symbols, the relations between ‘discourse’ and ‘experience’.¹⁸ Laura Gowing suggests that, following Judith Butler, sexual insults may usefully be seen as ritual public dramas in the social performances that create gender identities.¹⁹ We should bear in mind, too, that such local perspectives might have much wider implications: for example, when the Catholic Church was portrayed as ‘the whore of Babylon’, surely much of the power of this highly gendered and sexualised image lay in local familiarity with images of whoredom, rehearsed daily in abusive exchanges on the streets, from doorways, in shops and alehouses.

These exchanges of words are viewed in terms of violence partly because that is how those involved represented them: witnesses regularly asserted that a neighbour’s reputation had been ‘much hurt and impaired’ by the words of slander or described the litigants as ‘brawling and quarrelling’. In part, this thesis will take issue with certain historical approaches to ‘violence’ in English society, in terms of both their methods and underlying assumptions. Much of this work has focused on trends in lethal violence measured by homicide rates. In broad terms, the picture is indisputably one of a long-term decline from the late Middle Ages to the present, clearly a highly significant trend.²⁰ The question is: what does it signify? Lawrence Stone has used these statistics to stand for declining ‘interpersonal violence’ since the fourteenth century. On the other hand, an apparent short-term upswing, a ‘wave of violent crime, including homicide, in Elizabethan and Jacobean England’, is taken as an indicator, along with an explosion in litigation (including defamation suits), of a period of intense social crisis and conflict that supports his picture of early modern social relationships as characterised by hostility, intolerance and malice.²¹

Firstly, this general picture of incessant conflict and hatred is crudely drawn. J. A. Sharpe has studied the records of defamation suits more closely to show that such disputes were frequently regarded with considerable disquiet by neighbours, and that those involved themselves frequently sought arbitration and reconciliation; very few causes were fought to the bitter end of judgement and sentence.²² After all, defamation itself was treated as an undesirable breach of neighbourliness and ‘charity’: that is precisely why we have records of its existence. Some suits would undoubtedly have been ‘vexatious’, and even arbitration should not be seen as neutral when the defamed party could use the very existence of a lawsuit to put pressure on the defamer. But, quite clearly, these moments of conflict and tension - which cannot be taken as simple reflections of patterns of behaviour - aroused complex and often disapproving reactions.²³

Moreover, as Sharpe has pointed out, studying homicide rates cannot answer fundamental questions about early modern people’s perceptions of violence.²⁴ Susan Dwyer Amussen has suggested that we need to ‘take an entirely different approach to the problem of violence, to look for the “social meaning of violence”.’²⁵ John Cashmere, too, has warned that, from our twentieth-century perspective, ‘we might be misreading the languages of violence’ in early modern societies.²⁶ Stone is not alone among historians not only in simply taking violent crime as an index of ‘violence’ and of conflict more generally, but, more fundamentally, in confining ‘violence’ to certain types of physical - and illegal - act. For example, in a recent article that is particularly germane to the subject of this thesis, Robert Shoemaker consistently and unquestioningly opposes ‘public insult’ to ‘violence’ (as well as separating ‘talk’ from ‘action’).²⁷

The anthropologist Elisabeth Copet-Rougier has provided a valuable insight by comparing the meanings of the word ‘violence’ in the English and French languages:

we immediately see that it is conceptually ambiguous and relative. The primary English sense is of physical aggression - of physically inflicted wrong which is in some way illegal. In French there are two basic meanings. One relates to the English, and the other has the idea of ‘exerting pressure on someone in order to make them comply’... The duality in the different perspectives is reproduced on two levels: legal/illegal, physical/indirect.²⁸

Similarly, David Riches, examining these ‘Anglo-Saxon’ conceptions, focuses on the importance of ‘strategy and meaning’ in analysing violence. He views violence as action that is inherently contestable: ‘the performer will argue for the act’s legitimacy, whilst the witnesses (and victims) will deem it illegitimate... both sides will appeal to social rules and values, each entering the claim that justice lies with their performance or opinion’. Violence is used as a means to an end (rather than being in some way ‘mindless’ and irrational), but to do so successfully the performer has to persuade others that the action was legitimate: a matter of political strategy.²⁹ Amussen’s study of early modern violence centres on the issues of legitimacy, discipline and power. She examines a broad range of manifestations of violence, arguing that ‘in separating them, we reject the habits of mind of those we study’.³⁰ Violence and discipline, she argues were intimately connected, in practice and in thought, and violence was central to the exercise of power.³¹

Both gender and social status affected access to legitimate violence as ‘discipline’ - including verbal violence. The figure of the ‘scold’, anxieties about women’s disorderly tongues and gossip, say more about gendered power relations than they do about ‘real’ differences in male and female use of verbal weapons: more than half of the defendants in the York defamation causes studied here were men.³² Moreover, insofar as women did particularly ‘scold’ and ‘gossip’ (both negative terms that historians should use with particular care to avoid replicating the assumptions that they embodied), it reflects their limited access to official institutions of discipline and regulation.³³ And the furore that erupted in the Cheshire town of Nantwich in 1627 over Margaret Knowsley’s allegations of sexual harassment by Stephen Jerome demonstrates the potential power of women’s words, while the violence inflicted on Margaret in the name of discipline and order for her ‘slanders’ stands as testament to the dangers for women of those words.³⁴ Women could wield linguistic weapons: they could also all too easily fall victim to them.³⁵

To discuss verbal violence seriously is not to underestimate the seriousness of physical violence, not least for women. However, it must be remembered that the effects of verbal violence were at least partly physical. Slander could damage livelihoods; according to two witnesses, Elizabeth Addison’s verbal attacks against Susan Hartnes as a ‘whore’ successfully deterred at least one man seeking lodgings at Susan’s house from staying there. This slander also raised the possibility of physical violence; another woman’s reaction was to threaten to give Susan a ‘whore’s mark’, as well as repeating the slanders.³⁶ In this social and cultural context, verbal and physical violence cannot be regarded as separate practices. Nevertheless, they can be seen as representing differing strategies in exercising (or attempting to exercise) power and authority. Rather than speaking of violence ‘in decline’ (as the result of a ‘civilising process’) since the Middle Ages, it might be more profitable to focus on shifts in such strategies, and their relationship to the growing power of the state to monopolise legitimate physical force.

In other words, rather than seeing defamation suits, among the other forms of party litigation that are such a striking and important feature of the early modern period, as ‘providing a non-violent means of expressing aggression’,³⁷ we might view them as an ‘indirect’ form of violent exchange that was sanctioned by the state: using words and the law to make war. Contemporaries had few doubts about the seriousness of defamatory words: Richard Allestree described ‘detraction’ as ‘one of the grand incendiaries which disturb the peace of the world’.³⁸ But at the same time, these strategies were more acceptable than physical interpersonal violence. Even Allestree recognised circumstances under which ‘detraction’ could be justified, even imperative, not least when it came to matters of political and social order. If one could never speak discrediting words of another, it would be impossible to bring evidence against a criminal: ‘all discipline would be subverted’.³⁹ We find ourselves drawn once again towards the ambiguities of violence and contests over legitimacy.

Allestree struggled to create distinctions between ‘lying defamation’, ‘uncharitable truth’ and necessary discipline. In exploring the meanings and strategies of these verbal conflicts, I would argue that such distinctions cannot be made. In any case, the records do not permit certain identification of the ‘truth’; many contain quite contradictory accounts of the same people and events. This is not necessarily a ‘problem’ (except for the judge at the time, whose task must have been an unenviable one). At the time, defamation causes explicitly turned, time and time again, on subjective interpretations: on witnesses’ judgements as to whether words had been spoken with intent to defame and whether they had in fact done harm to the plaintiff’s good name, and their assessments of the honesty and repute of plaintiff, defendant and even of other witnesses. In short, the undecideability that surrounds these records is wholly representative of their subject: ‘defamation’ is inherently contested and unstable. At any moment, the dialectic of ‘attacker’ and ‘victim’, defamer and defamed, could be reversed by a counter-suit - or simply by a new witness.⁴⁰

Moreover, defamation exposes tensions within existing value systems. Defamers could perceive and present themselves as critics exposing immoral behaviour that represented a threat to social order and the integrity of the neighbourhood; but they were in turn accused of disrupting order, destroying neighbourly harmony.⁴¹ Again, this has a particular significance for women. Defamation causes show women transgressing certain ideals of feminine behaviour: publicly speaking out and behaving assertively, whether on the street or in the courts. But, again, these actions could be justified by reference to conflicting moral imperatives, women’s obligations to defend personal honour and maintain family interests - as when women took part in collective protests.⁴² The difficulty for women was not that there was a monolithic set of rules demanding their silence and submission, but that they continually had to negotiate contradictory demands from positions of limited access to legitimate authority and ‘official’ language-creation.

There is not a clear-cut difference between valid, just ‘criticism’ and nasty, malicious ‘defamation’. To name ‘defamer’ and ‘defamation’ was in itself an act intended to discredit the speaker. However, the verbal defamation and the defamation suit were not equal; the latter had the advantage of the authorising weight of institutional authority - and of ‘official’ language. An accusation of defamation might, though, be countered with an opposing defamation suit. And none of these actions was without risk. Why take such risks in the first place? These are political actions exchanging symbolic blows in battles for the precious, powerful and deeply precarious ‘symbolic capital’ of reputation.⁴³ ‘Reputation’, or ‘good name’ or ‘credit’, was vital for status, authority and material well-being in early modern society, across a broad range of the population.⁴⁴ Reputation based on virtuous behaviour rather than inheritance was particularly vulnerable, requiring continual work and, indeed, risk-taking, because it ultimately depended on the opinions and words of others: ‘to gain honour chances have to be taken’.⁴⁵

Reputation was gendered, and reflected the differing roles of women and men. We should be careful, however, about exaggerating at least some of the distinctions. It has been argued that, despite Christian teachings insisting on equal culpability, female honour and honesty was narrowly identified with sexual chastity, while male honour was more broadly based. Men’s most pressing anxieties revolved around occupational or commercial honesty, and their sexual behaviour was not subjected to the same standards. Indeed, in the strongest version of the argument, based on church court records of sexual defamation, male and female sexual reputation were entirely incommensurate.⁴⁶ However, it is important to remember the limitations of these records: defamation causes in church courts were quite narrowly based. Only words relating to certain types of ‘spiritual’ crimes, many concerning sexual conduct, were, in theory, actionable there.⁴⁷ However, more women than men did go to court over sexual defamations and men’s causes were more likely to be solely about non-sexual insults. Moreover, close comparison of the sexual defamation of women and men reveals some crucial assumptions about gender relations, about male mastery and female subordination. What cannot be accepted is an absolute dualism, or conceptualisations of female honour as one-dimensional: women were deeply concerned about non-sexual components of their reputation, and men could be attacked through sexual defamation.⁴⁸

The central focus of this thesis is a case study of 97 defamation causes in the city of York from the re-establishment of the church courts at the Restoration to 1700. Crucially for my purposes, a high proportion contain witnesses’ depositions that make it possible to go beyond quantitative analysis of the litigants and the words spoken. As Kermode and Walker have argued, ‘qualitative material can tell us far more about the activities and attitudes of ordinary people than can aggregates of litigation alone’.⁴⁹ The depositions make it possible to examine, for example, the specific situations in which defamatory words were spoken, the rich vocabulary of insults, and the interactions between defamers, defamed and their audiences. Further, the strategies employed in efforts to undercut or support witnesses offer additional insights into the dynamics of reputation and defamation. These contests also underline the rhetorical nature of legal narratives, offering a further perspective onto witnesses’ representations of violent behaviour and the harm caused by defamatory words: they are using images of violence to persuade the court that the actions they describe were illegitimate. This tends to undermine a search for ‘what really happened’; however, it can tell us a great deal about what contemporaries believed ought and ought not to happen, and could happen, and might have happened in a particular case. Witnesses told, re-told and contested stories, selecting and shaping narratives towards particular ends, to persuade and to influence their audiences. Outright falsehoods are always possible, but would have run a very high risk of being self-defeating: the stories told needed to achieve some kind of ‘fit’ with shared experiences, perceived realities, if the desired ends were to be achieved. The stories told had to be believable; not just to the court but also to the neighbourhood, the original audience and the final judge.⁵⁰

Defamation in the later seventeenth century has received less attention than the period before the Civil Wars, reflecting, at least in part, more general differences in the historiography of the seventeenth century. The tendency to divide the century into two very different halves, with 1660 viewed as a ‘fundamental watershed’, has recently come in for increasing criticism.⁵¹ A number of historians have brought new perspectives to the study of the period after the Restoration, broadening the topics of enquiry and advocating more dynamic analyses. Dave Peacock has recently challenged the emphasis in accounts of the later seventeenth century on ‘continuity and orderliness’, ‘high’ politics and gentry dominance.⁵² It has been pointed out that the ‘apparent straightforwardness’ of the period may be something of an illusion resulting from the lack of research and debate.⁵³ This thesis will aim to contribute to the revisions that have begun to emerge, and to further such research and debate through a local case-study. The church courts clearly retained enough authority and prestige for substantial numbers of women and men, especially from the ‘middling sorts’, to utilise them. They might have idealised harmony and order, but in practice such ideals were intensely contested; and their acceptance of the institutional legitimacy and authority of the Anglican Church’s legal jurisdiction was carried out on their own, active terms for their own purposes.