For people living in sixteenth and seventeenth century England, witnessing an arrest might be a familiar encounter with the state. By state, I mean the network of magistrates tasked with governing England through enforcing law and serving legal processes upon the inhabitants of their jurisdiction. This was less formalised than our modern day state: magistrates were unpaid and not in uniform, and so historians have reflected that authority needed to be negotiated in some way between the magistrates and locals. But what did that mean in practice?
I am interested in this “constable walks into a bar” moment: the quotidian encounters between state officials and those they attempted to govern. Historians have often relied upon the term ‘performance’ to describe the kind of active, representational work a magistrate needed to convince others to obey. But despite using this word, and recognising the negotiated nature of authority, historians have largely failed to anatomise this performance, merely hinting at some kind of dynamic between magistrate and audience. Historians have therefore presented early modern English people as deferential. By not looking at how a magistrate went about arresting someone, and how those present received him, we’re left with a version of the past where the state was automatically accepted, where the performance was always successful.
This does not reflect the reality of responses to government in early modern England. Star Chamber – the court where those accused of disrespecting or disobeying authority were prosecuted – contains hundreds of records claiming resistance to arrest. While it’s fair to assume that some of these accusations were false, part of an attempt to “vex” the defendant, it is striking to notice the sheer number of ways that people did not accept state authority. Some officers were beaten into the dirt, their warrants ripped up. Others faced rival officials denying their authority. While others still were challenged by “confederated” mobs. These cases have detailed depictions of how magistrates attempted to enact their authority, and how they were received.
This brings me back to “performing” authority, but rather than name-dropping the term, I use it as a category of analysis. What constituted that performance? What effects did that performance have on the state? This is to use “perform” as early modern people themselves would: it was used by the government and in the law to mean the bringing of something from theory to practice, of making something real. In this latter definition, it referred to physical action that led to a higher level of representation, like acting. Fundamentally, I conceive the early modern English state as inherently performed and embodied. The state came into being when a magistrate successfully enacted his authority, and this vision of reality was made concrete when that magistrate has the legitimate authority to arrest someone, with bystanders conceptualising the structure of the state from witnessing this event. Crucially, then, an arrest was doubly a performance: the magistrate needed to perform his own legitimacy to those present, and if the arrest was successful, it performed a vision of the state for those present. Ordinary people experience the state as bodies that moved and talked, putting together their own understanding of the state from witnessing this performance. Performance, moreover, is fundamentally risky – it can always go wrong. If a magistrate failed to enact his authority, as I have previously argued, the performance of the state failed. In conceptualising the state as performed, then, I can reckon with the contingency of state authority.
The handwritten early modern arrest record of the case of Astell vs. Hurst, photo courtesy of Lucy Clarke.
I examine the state in a manner analogous to how it was originally experienced by using practice-as-research (PAR) workshops, where I turn Star Chamber records into scripts for actors to perform. These workshops allow me to think about the state as bodies in motion and conversation, to reflect on the practical problems a magistrate might face, and to examine what the state might have looked like in these moments. In doing so, I can see how strong – or weak – the state was in these encounters.
In this pair of articles, I will explore what PAR can reveal about how arrests were enacted and experienced in modern England. In this first part, I will focus on the scripting process, noting some key insights and questions raised by this part of my methodology. Crucially, PAR sits in the middle of my research process, not at the end. The creation of scripts, and the performing of them, is what leads to questions that otherwise I would not have asked about these legal records, and provides a new point of view on the state as it was experienced.
I will focus on the case of Astell vs. Hurst (STAC 5/A1/40) from 1595-6. With a series of PAR workshops planned for early June 2024, I was particularly interested in what the audience of an arrest experienced and in the relative strength and weakness of a magistrate, the arrestee, and the people present. Astell vs. Hurst is detailed, featuring bystanders criticising the arrest, and dispute over its legitimacy, so I was keen to see how staging it would look and, specifically, what relationship between the magistrate and the crowd it enacted.
The first step in scripting is establishing the order of events – what “actually” happened. This depends partly on the documentary condition of the cases. Some only exist as a bill of complaint (the plaintiff’s written account of the “crime”) while others have two or more disputed accounts in the “answer” a defendant might provide before proceeding to trial, and the “examinations” of plaintiffs, witnesses and defendants. For Astell vs. Hurst we have two wildly diverging accounts. Astell claims he was assaulted in the street by Hurst and his fellows, who only claimed to the (very offended) bystanders that they had arrested him after they had beaten him to a pulp. Hurst, meanwhile, claims that he had a legal case against Astell for debt, and that the arrest was made legally, after which Astell fought violently against the official, Cooper. I chose to stage both accounts, because the case was essentially debating what constituted a legitimate arrest. By staging both, I hoped to see what legitimate and illegitimate arrests were supposed to look like. While Star Chamber is notorious for th fictionalisation that appears in many cases, litigants had to make plausible fictions in their bills and pleadings. As such, having two divergent accounts of an arrest gives a great insight into contemporary expectations of legitimate arrests, and the of the audience in these moments.
The next hurdle is transforming a legal account into a performable script. Even when it is difficult to ascertain what the “accurate” version of events was, scripting reveals useful questions. The scripts I produce are fairly barebones because I am only rendering what I see in the Star Chambers. In being so thin, these scripts open questions that have not yet been considered. Hurst declares that: ‘Cooper arrested the sayd Complaynante accordinglie,’. But what did that mean practically? Star Chamber cases frequently refer to an arrest being made, but without specific details on what was done, and so this led me to cross-reference with other cases, and with legal handbooks for magistrates, such as Lambarde’s Eirenarcha. Legally, an arrest meant taking hold of a man;s body, but when scripting this action, it becomes clear that this in of itself opens multiple possibilities of how that hold was achieved, a question that could only be explored with the help of my fight director and actors. Here, scripting revealed that making an arrest could be far more complicated than the simple legal definition.
Violence also raises questions. Reading the case, the legitimacy of the arrest seems to rest on distinguishing between who offered violence first. The plaintiff claims violence preceded the arrest, while the defendants assert that Astell offered violence in resistance to the arrest. This suggests that unprovoked violence imperilled the legitimacy of an arrest, but was that the case for witnesses? For safety, this violence needed to be choreographed, which raised questions: how much violence was needed to successfully arrest someone? Was it plausible that a single man could fight so hard against two others that they were unable to arrest him? And what did it suggest about the state’s power if the magistrates struck first, or were struck by the man they attempted to arrest? Once again, these were questions that needed to be addressed corporally.
I also needed to decide when and where bystanders appeared in the “scenes”. In most Star Chamber arrest cases, the presence of bystanders only becomes apparent when they are actively involved. In Astell’s version, the appalled residents of Cambridge ‘ran thether’ on hearing the violence, while in Hurst’s ‘divers persons [were] then and there present’. I decided to place Hurst’s bystanders “onstage” from the state, while Astell’s only emerge after he cries for help, for the purposes of realism. I was interested in how these audiences’ presence altered the arrest, and hwo the power of the magistrate/assaulter was affected by the audience being onstage the whole time, or by them only entering halfway through. In scripting, it struck me that both audiences performed a similar role: to support the claims regarding the legitimacy of the arrest, either by passively letting it happen, or by protesting, and I was intrigued if my actors and audience would agree.
As I will discuss in the next article, the questions produced by scripting in this way can be explored (and sometimes resolved) in workshop. Scripting is therefore just a step in the investigation. Here, it revealed the importance of both the audience and the temporality of violence, while opening further questions about the manner of arresting someone, and the effects of witnessing, which needed to be staged.