English Law, Irish Trials and Cromwellian State Building in the 1650s

Abstract

Everywhere there is one principle of justice, which is the interest of the stronger. Plato, The Republic In his 1975 Whigs and Hunters , E. P. Thompson reflected upon the fabled English common law. His long-held Marxist perspective, he acknowledged, and its simple conclusion that law ‘is clearly an instrument of the de facto ruling class’, had begun to crumble in the face of a more complex and contradictory realization. ‘If the law’, Thompson wrote, ‘is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony’. Achieving such objectives instead depended upon the law appearing impartial and independent from ‘gross manipulation’. Calculated moments of government retreat in law courts ‘served, paradoxically, to consolidate power [and] to enhance legitimacy’ while simultaneously bringing ‘power even further within constitutional controls’. Law, regulation and procedure thus amounted to ‘a great deal more than a sham’. 1 Thompson’s assertion applied specifically to the Black Act of the eighteenth century, yet the phenomenon he captured remains fundamental to understanding the consolidation of power in both state and empire building more generally. State formation has received much attention from scholars of early modern England in recent years. Social historians have emphasized the domestic functions of the state, executed by local parish and county officials whose vested social interests ensured that the state remained deeply local and lacked ‘modern’ central institutions and legitimating languages. 2 Political historians, meanwhile, have considered the rise of the bureaucratic state, whose fiscal–military apparatus necessitated modern concepts of political legitimation. 3 Because social and political historians rarely find themselves in conversation with one another, the role of law as a legitimating language and its use by contemporary actors has been marginalized. 4 Moreover, studies of state formation assess only the situation in England and do not extend their analyses to consider the process in Wales, Scotland and Ireland, which, together with England, constituted the ‘British’ composite monarchy by the mid seventeenth century. 5 Examining how the English used law to incorporate the Scots and Irish into a composite state yields valuable results not just for national and archipelagic histories, but also for British imperial history. As David Armitage has noted, the structures of European empires depended upon the constitutional arrangements of their parent states, while J. H. Elliott’s realization that early modern Europe was a world of composite monarchies helps to clarify the connection between early modern state formation and empire building. 6