5
Lawyers and Early Modern Culture

Like the previous paper, this essay deals with the transition to modern culture, but this time as it found expression in the experience and attitudes of a strategically important profession. I also argue here that it is a mistake to confuse the secular practicality of lawyers with hostility to Christianity; it should be rather understood as a function of an Augustinian distinction between the earthly city and the City of God. In an earlier form this essay was presented at the annual luncheon meeting of the Modern European Section of the American Historical Association in New York in 1971. It was published in the American Historical Review 78 (1973), 303–327, and is reprinted here by permission of the editor .

Although European historians have increasingly recognized the impact of large-scale change or significant events on human culture, they have paid little attention to the importance of the less dramatic aspects of social experience for shaping the attitudes of men. The result has been, for most of us, a schism between social and intellectual history that has impoverished both. As Frederic C. Lane has reminded us, the routine tasks of daily life are likely to impress those engaged in them with a profound sense of what the world and especially men are like and to produce patterns of expectation and systems of value—dimensions of culture in its larger meaning.^[1] Eventually these impressions are likely to find explicit formulation in philosophy, science, theology, and literature and the other arts—in culture in a narrower sense. But since the work by which men support their needs tends, particularly in the modern world, to be highly differentiated, it is difficult to treat the relation of work to culture in general terms. To get at this relationship, the historian

must examine the experience of particular occupational groups that have held a position of strategic importance both in movements central to their social universe and in the articulation of its vision of the human condition. The rise and development of groups of this kind, especially where they have not previously been prominent, gives the historian an opportunity, unique in its concreteness, to study the sources and the nature of social change. In addition, such groups may be especially useful for identifying the sources in social experience of fundamental shifts in attitudes and values. Scientists and technologists invite this kind of study in our own time. So, for early modern Europe, do lawyers.

In view of the attention recently directed to social history, it is remarkable that so little study of occupational groups has been done. One reason, I take it. is the tendency of many social historians to rely for most purposes on the categories of social class, which, though only imperfectly related to occupational differences, can usually be made to absorb them. From this standpoint occupations are interesting chiefly because they help in the assignment of individuals to their appropriate classes, and small attention is given to the often rather different functions of men who are seen as members of the same class, or to the possibility of contrasting perceptions of life arising out of the quite different ways men spend their working days. Lawyers can doubtless be generally identified with the middle class or some rank above it, though precision on this matter has often proved difficult: in societies sensitive to social gradation, men of the law regularly presented problems, a fact that might well alert us to their special significance. But the mind of a lawyer was also shaped by a professional experience that made him rather different from most merchants or landed gentlemen.^[2]

A second obstacle to the fruitful study of occupations has been our tendency to leave them to specialists concerned primarily with disciplines abstracted from their human and social meaning. Thus we have histories of theology but few of theologians, with the result that theology presents itself chiefly as an evolving set of disembodied ideas rather than as a response to human needs perceived through some kind of experience with life. We have histories of science but few of scientists considered as a group, and histories of law—indeed great classics on this formidable subject—but very little on lawyers as a profession characterized by a certain social role and a particular perspective on life and the world. What we have is useful and often admirable; we need not go all the way with Christopher Hill's somewhat imperial assertion that "it is time to take legal history out of the hands of the lawyers, as religious history has been taken away from the theologians, and to relate both to social developments."^[3] Yet the general point is valid enough, even though—as

revealed by recent works of Gilmore and Martines for Italy, of Franklin, Kelley, and Huppert for France, and, among others, of Thorne, Pocock, and Little for England—a broader interest in lawyers and their activity is now stirring.^[4] This article is concerned to call attention to some of the larger possibilities in the subject and thus to the need for further work that, with proper respect for differences among societies and legal traditions, will permit a higher level of generalization.

The history of lawyers is peculiarly adapted to display connections among various dimensions of human activity, but it also bears on fundamental controversies about the nature of the law itself. In the long history of speculation on the law, lawyers of the Renaissance were the first theorists since the Sophists to argue that legal systems should not be required to reflect the will of God in any direct way or to mediate between eternal reason and the practical needs of men;^[5] the law functions best, some Renaissance lawyers maintained, as a response to the concrete needs of particular societies and in fact can be shown to have evolved in this way.^[6] Ever since the Renaissance, men have divided over this issue or, like Sir Edward Coke, uneasily straddled it; and the same disagreement, or at any rate the profound psychological differences it may be taken to represent, underlies much contemporary dispute about the law, perhaps including recent debate over strict construction.^[7] A more comprehensive study of the historical relations between law and social experience might also contribute something to this perennial issue; our subject may thus have some practical importance.

The legal profession of early modern Europe was a somewhat diverse body, and I shall define it rather loosely to include all those who supplied legal or quasi-legal services. At its highest and most broadly influential level of eminence it included judges and magistrates, sometimes with little or no formal education, who applied the law to the various needs of government. In addition it included juridical scholars with varying degrees of practical experience, practicing lawyers—among them canonists as well as civilians and common or customary lawyers—and also, in this period, notaries. Sometimes organized with lawyers in a single guild as in Renaissance Florence, notaries supplied various legal services to a far larger body of clients than their less numerous and more prestigious colleagues. Because the task of providing written legal instruments merged into the work of public secretary and scribe, notaries were important in relating law to literature and scholarship. They were therefore of special importance in mediating between the broader and the narrower meanings of culture.^[8]

It is, at any rate, evident that men somehow connected with the law

occupy a remarkable and disproportionate place among those prominent in European culture expression.^[9] The connection was sometimes a matter of degree, and in particular cases it was clearly ambiguous. Many young men destined for fame in other connections studied law but failed or refused to complete the course or in the end made no professional use of their legal training. Among these were Petrarch, Luther, both Calvin and his victim Servetus, the satirist Samuel Butler (so widely read in his own time), Voltaire, Diderot, and David Hume, who eventually became librarian of the Faculty of Advocates in Edinburgh. Although students of Calvin have never doubted the influence of the law on his formation, others mentioned above reacted violently against the law, though this, too, may testify to its importance. Such names also leave us with an impression of the extent to which ambitious fathers regarded a career in the law as an avenue of worldly success for gifted sons who might have had other views for themselves.^[10] In still other cases the influence of the law was rather a matter of family background, with its subtle impressions, and of milieu, than of direct professional engagement. Machiavelli, for example, was the son of a lawyer who—we may surmise—might, had he been more prosperous, have sent the boy to study law, then an expensive affair. At any rate young Niccolò found a type of employment in the Florentine government usually reserved for lawyers or notaries, and he was deeply concerned throughout his life with the social function of law. The dramatist Beaumont was son of a justice of common pleas. Pascal and Racine were both sons of lawyers and magistrates and spent much of their lives close to the legal circles of Paris.^[11]

But in many cases the relation to law was close and direct. Guicciardini had a flourishing legal practice in Florence for many years. La Boétie and Montaigne, before he retired to devote himself to letters, were judges in the Parlement of Bordeaux. John Donne attended Lincoln's Inn and served as a law clerk before taking orders. Corneille was an avocat and magistrate, like his father before him, and Molière studied and may even have practiced law before turning to the stage. La Fontaine was a magistrate. Leibnitz finished law school to become a professor of law at the age of twenty-three. Giambattista Vico, though he never achieved the professorship to which he aspired, saw himself primarily as a student of civil law. The career of Montesquieu followed the pattern of Montaigne. Henry Fielding was a lawyer and magistrate in London.^[12] And other great figures combined government service as lawyers with historical composition or religious and philosophical reflection: Thomas More, Paolo Sarpi, and Francis Bacon. Such an enumeration is, to be sure, impressionistic; but it could be carried much farther, and it has a

certain cumulative impact, which is strengthened when we look at movements rather than men.

Thus the culture of Renaissance humanism, especially in its earlier stages, was largely a creation of lawyers and notaries.^[13] Salutati was a notary, Bruni went from the study of law into the Florentine chancery, and Poggio and Flavio Biondo were notaries, as was Lorenzo Valla, the most original mind among the humanists of Italy. The son of a lawyer at the Curia, Valla felt enough confidence in his own understanding of the law to challenge the methods of its contemporary practitioners.^[14] And the relations between humanism and the law were even closer in the French Renaissance. The great scholars and historians of sixteenth-century France were jurists, from Budé to Pasquier, Bodin, and Jacques de Thou. Most of the libertins of the earlier seventeenth century were lawyers. Lawyers played a large part in public support for the scientific movement of the seventeenth century in both France and England—the membership lists of the Royal Society, for example, are filled with their names—and the so-called Scottish Renaissance of the eighteenth century was dominated by lawyers.^[15]

This is to say nothing of those great figures who devoted themselves primarily to juridical thought: Coke, Selden, Grotius, Pufendorf, Beccaria, and Bentham. The point is important, for it should be recognized that jurisprudence was not, in these centuries, only an esoteric and highly specialized discipline. Some knowledge of the law was essential equipment for the landed gentry of Britain in an age of lively litigation over titles to real property and of the gentry's general responsibility, as justices of the peace, for the preservation of local order. In addition some acquaintance with the philosophical principles of the law was a part of the culture of every educated man. Laymen like Hobbes had an extensive knowledge of the law and felt competent to write on the subject; and the young Gibbon in Lausanne, who considered attending courses in law, was probably not unusual in the time he devoted to reading great legal treatises, refusing to be put off, as he noted in his autobiography, "by the pedantry of Grotius or the prolixity of Pufendorf."^[16]

The prominence of lawyers in the formation of modern culture, with its characteristic attention to the workings of this world, is in some respects not altogether surprising. Lawyers were members of an articulate as well as a learned profession in which success required some discipline of mind and was likely to bring the wealth and leisure to support general reflection. Lawyers often had, too, the social status and influence needed to make their views heard. But I would suggest that something more was involved: that men of the law were uniquely fitted by their

social role and the nature of their experience with the world to interpret it plausibly to contemporaries. Engaged to a special degree in the task of meeting the essential needs of a changing society, they were in a better position than other groups in Europe to give expression to society's changing perceptions. It is therefore necessary to look briefly at what these men were called upon to do and at what their function represented at the level of values.

That lawyers contributed substantially to the slow transition from medieval forms of political and social organization has long been recognized in a general way, and some description of this contribution in detail is now possible. As in so much else, precedents were supplied by the medieval church, which, from the time of the investiture struggles, was increasingly administered by lawyers concerned to define its rights.^[17] In the later Middle Ages most bishops, including those of Rome, were lawyers rather than theologians;^[18] and the litigiousness of early modern Europe was prefigured by the litigiousness of the medieval church,^[19] where a sense of the inappropriateness of domination by lawyers nourished generations of reformers.^[20] Two points may be made about the rise of lawyers in the church. In the first place their emergence into positions of power corresponded to the increasing importance of institutional controls accompanying the centralization of the ecclesiastical apparatus and the evolution of the church into a mechanism for government. Here as elsewhere law became significant in direct proportion to the growth of social and institutional complexity. At the same time the prominence of lawyers reflected the growing acceptance of the inevitability of conflict even in the Body of Christ. For canon lawyers—and it should be noted that they were not necessarily ecclesiastics—were divided, both ideologically and practically, into antagonistic schools that represented conflicting principles and interests, and litigation in the church regularly involved canonists on both sides of a dispute. The establishment of lawyers in the church consecrated professional representation in adversary proceedings and accustomed men to rely on the expert services of the legal profession.

From the twelfth century, as towns grew in size and their societies, too, became more complex, the legal profession became increasingly important in the secular world, with the competence and respectability of lawyers nourished by the revival of Roman law. In the governments of the Italian towns, lawyers and notaries assumed responsibilities out of all proportion to their numbers, precisely because they possessed skills essential to the development of a more complicated social order. They drafted legislation in an age remarkably confident in the regulatory and

reformatory value of laws, they participated in all public commissions, they staffed agencies of state, they went on embassies and prepared treaties, and they formulated and administered policy for republics and despotisms alike. Their interpretations of Roman law legitimized the sovereignty and independence of states.^[21] And lawyers achieved equal prominence elsewhere in Europe, if somewhat more gradually, as societies beyond the Alps also grew more complex. The feudal conception of the king as dispenser of justice made his employment of lawyers appear natural even when their activities were resented. In France the administrative competence of lawyers was extended by the familiar institutional ambiguities of the Old Regime, in which, just as administrative agencies regularly performed some judicial'tasks and thus needed lawyers, so the sovereign courts steadily expanded their administrative responsibilities in the name of the king. In the sixteenth century, for example, the Parlement of Paris took over hospital and university administration and also supervised the administration of the city. As maîtres des requêtes , lawyers were indispensable to the councils of the king and managed a wide range of his affairs. Meanwhile lawyers supported royal authority by historical and constitutional argument and attacked the feudal establishment by both their studies and their service in the courts.^[22] In Spain, in the Netherlands, and in the Empire lawyers dominated royal councils and administration. Lawyers also ran colonial empires, both in bureaucracies at home and in the new societies developing overseas. A similar situation prevailed in England. Common lawyers molded the Star Chamber, promoted the Tudor revolution in government, and supplied personnel for every kind of administrative post. From Bosworth Field to the accession of Elizabeth, every chancellor of the exchequer was a lawyer. So was every one of the twenty-two speakers of the House of Commons.^[23]

The activity of lawyers in the construction of a new political order is well known. We know less, unfortunately, about the part played by lawyers in the shaping of social and economic life and about their representation of private clients. But it is clear that, on the Continent, lawyers had early developed the legal basis for the corporate structure of the society that persisted through the Old Regime out of the resources of Roman law.^[24] As judges, lawyers enforced the harsh demands of the criminal law; they stood for law and order and above all for the protection of property. Lawyers and notaries served the material security and perpetuation of families by drawing up marriage agreements and wills. They also ensured the performance of business agreements by contracts, deeds, and bills of sale; here they both met a practical need

and provided the psychological prerequisite for economic activity. And eventually the common lawyers of England, some of them heavy investors in the great trading companies, were instrumental in freeing economic life from royal control.^[25]

It is evident, at any rate, that lawyers were essential in developing the institutions and the conventions of early modern Europe. This was their peculiar task, and we can usefully linger for a moment on what this meant. Lawyers were needed to deal with the most urgent problems of their societies, not only incidentally and occasionally, like the majority of men, but in the most concentrated form imaginable, at every moment of their working lives. As private practitioners, they saw and represented clients who were in trouble, feared trouble, sought the clarification of some ambiguous situation, or aimed to twist the social system in some novel and advantageous way. As servants of government, lawyers were concerned to enforce and extend the rights of central authority or to shape institutions that could do so more effectively, usually in an abrasive struggle with a hostile adversary; the personal costs of failure could be high. As judges, they were compelled to scrutinize and weigh evidence, often of a disheartening and usually of an equivocal nature. Their role, in short, was to man the frontiers between the safe and familiar on the one hand, the dangerous and new on the other; between the tolerable and the intolerable; between the conventional world and the chaos beyond it. They constituted a kind of civil militia whose difficulties were compounded by the fact that the precise location of the frontiers to which they were assigned was rarely clear, and these frontiers were constantly changing. We may well ask what kind of men these were.

It is hardly remarkable that a special and rather unattractive temperament has been conventionally attributed to the lawyer.^[26] He was, like Guicciardini, a skeptic and a cynic; like Bacon, cold and crafty; or, like Bacon's great rival Coke, mean and harsh, a bully and a coward, a man of whom even his widow, after thirty-six years of marriage, remarked at his death, "We shall never see his like again—praises be to God." From the lawyer's exposed position on the frontiers of behavior he saw the world, like Montaigne, at its most irrational, most selfish, venal, and hypocritical. The lawyer knew the small practical worth of ideals and fine principles, and he knew also the humiliations and indignities that were the price of success in the world of men, a price that, like Bacon or Coke, even the best of lawyers was nevertheless prepared to pay.^[27] The degradation that ended Bacon's public career nicely illustrated his own melancholy reflection on the hazards of success: "The rising into place is laborious, and by pains men come to greater pains; and it is

sometimes base, and by indignities men come to dignities. The standing is slippery, and the regress is either a downfall or at least an eclipse, which is a melancholy thing."^[28] In short, the lawyer knew the world. His mind and character were shaped to a unique degree by contact with its changing pressures and brutal realities, its dangers and uncertainties; and it is for this reason that he was peculiarly fitted to play so large a role in forming the culture of worldliness and vigilant individualism to which the more optimistic and trusting culture of the preceding period gradually gave way.

At any rate the lawyer commanded vast, if sometimes equivocal, respect. In Florence the guild of lawyers and notaries ranked first on all ceremonial occasions, and its chief officer was honorary head of the whole guild system. As individuals, doctors of law in Renaissance Italy ranked with knights.^[29] Traiano Boccalini, a kind of Art Buchwald of the later Renaissance, argued that lawyers better deserved the title of Excellency than the nobles who complained of the lawyers' presumption.^[30] In France the lawyer's profession was considered—except by some nobles—as honorable as bearing arms: La Bruyère described both functions as equally sublime and useful. The great Anglican theologian Richard Hooker, a devotee of law in a grander sense, declared that "soundly to judge of law is the weightiest thing which any man can take upon him."^[31] Even the hatred and scorn for lawyers so frequently encountered in every age in which they have been numerous are a tribute to their importance, if only through their capacity to threaten others; lawyers represented the omnipresent danger inherent in the increasingly complex and increasingly mysterious machinery of social organization, before which the individual felt more and more helpless. They clearly endangered the self-esteem of old nobles like Saint-Simon.^[32] The deliberate exclusion of lawyers from More's Utopia only suggests their central place in the real world for one who understood it well.^[33] And an oblique tribute of a similar kind may be discerned in Luther's frequent expressions of hostility to lawyers. One of the young men who sat at his table reported an incident of particular interest in this connection: "The doctor took his child in his hands and said, 'If you should become a lawyer, I'd hang you on the gallows. You must be a preacher and must baptize, preach, administer the sacrament, visit the sick and comfort the sorrowful.'"^[34] The episode suggests the celebrated guilt of the youth who had abandoned law school, sold his lawbooks, and entered a monastery against the wishes of his own father. For Luther the law continued to represent the world and its spiritual dangers, which he had forsaken to pursue his salvation; lawyers remained, in his mind, at the center of this world's

concerns. But this view was more than a private eccentricity. Luther's attitude also pointed to the degree to which the figure of the lawyer persisted in haunting the European religious consciousness. Indeed, this may have had as much to do with his unpopularity as the inconveniences he represented. The lawyer was an obvious scapegoat for the general guilt of a world in transition, made anxious not only by the immediate insecurities of life in society but also by the abandonment of old ways and values.

The significance of lawyers in European life depended on more than the importance of their practical role or the respect in which they were held. It rested on the deeper needs they satisfied. And here, to make the point more concrete, I will give particular attention to the period between the middle of the sixteenth and the middle of the seventeenth centuries. If the transition from the medieval to the modern world was generally characterized by a crisis of both social order and belief, this phase of the transition was peculiarly troubled by their convergence in religious wars, by international conflict of particular intensity, by inflation and depression, and by mounting social tension and dislocation.^[35]

One consequence of the peculiar difficulties of this period was a singular exaltation of law as an antidote to disorder. The value attached to law now went far beyond the traditional and more measured confidence, as in the generation of Erasmus and Machiavelli, in the capacity of legislation to regulate and improve human conduct. In the frustrated Italian states of this period law presented itself as the only means to discipline the violent passions of mankind that had so obviously destroyed the freedom of Italy, and as the only instrument to control the wanton masses. To this tendency both the mood and the intellectual resources of the Counter-Reformation contributed. In France law, beginning with Bodin, was now first clearly perceived as the essence of sovereignty, Gallican jurists dominated political discussion, reformers saw law as the solution to every moral and religious problem, and the high magistracy at last completed its slow evolution into a new nobility of the robe. In England men were finally compelled by rapid social and institutional change and the accompanying growth in legal business to take a fresh look at the common law, to adapt a legal system based on the needs of an older agrarian society to new social and political uses, and to reduce that legal system to some kind of order.^[36] This was the greatest age of the common lawyers, whose numbers multiplied. Admissions to the Inns of Court generally doubled; Gray's Inn saw as much as a fivefold increase.^[37] The printing press helped in all this, supplying

uniform editions of laws that made legal systems everywhere more reliable, systematic, and effective.^[38] During the same period the polity most admired in the whole of Europe was Venice, primarily because she gave the impression of an order based on sound and equitably administered laws.^[39] In addition this period is of unusual interest for the comparative study of lawyers because lawyers were often peculiarly conscious of themselves as an international community of professional men that transcended political and confessional boundaries and was held together by common goals and ideals, common problems, and a common intellectual culture. An international correspondence among the lawyers of this age included the exchange of views on religious, literary, historical, and scientific topics as well as on the events of the day and discussion of legal questions of mutual concern.^[40]

Much in the special importance attached to law in this period was a response to the unusual intensity of disorder in a Europe whose growing social complexity meant a new degree of vulnerability to dislocation and thus a growing need for regulation. The primary source of disorder was patently the conflict of human interests; and, as in the church, the rise of the legal profession in secular society signified a concern for the peaceful resolution of conflict. Lawyers started to work when conflict loomed. A legal system may therefore be described as a means for institutionalizing conflict, but there was a crucial difference, at first subtle and disguised but increasingly radical and explicit, between medieval and modern assumptions about this process. Litigation in secular courts had been forbidden by the early church; Augustine, who knew the courts well, had pointed to lawsuits to illustrate the persistent sinfulness of earthly society.^[41] The notion of a relative natural law appropriate to man's fallen state had resolved the practical problems of life in a society that, although professedly Christian, remained imperfect.^[42] But the acceptance of conflict was, in this view, also relative; it could never be tolerated as normal and inevitable. Justice was itself finally an absolute; and this meant that a legal decision was ideally concerned not so much to resolve conflict as to transcend and abolish it by resort to ultimate principles. In this light coercion by legal authority was an effort to bend the refractory wills of men into conformity with a final vision of justice. But increasingly the lawyers of early modern Europe, whatever the formulas to which they sometimes still appealed, disregarded such conceptions. Their task was practical and limited; they aimed not to transcend conflict but to manage it. In their world the essential tensions were not between sin and ultimate justice but between antithetical human interests that generally seemed morally ambiguous on both sides. Their ac-

tivity was directed to the effective resolution of conflict, not to the realization of a lofty vision; their rise signified and accelerated the breakdown of a traditional view in which social values were defined in accordance with final ends. As early as the thirteenth century it was a commonplace that a good jurist made a bad Christian.^[43]

Lawyers were thus central to the cultural transformation that marks the end of the Middle Ages, and they took a leading part in the articulation of a novel set of empirical, pragmatic, and secular attitudes in which the orderly administration of this world's affairs was seen to depend on practical principles of its own. This new vision, which reached reasonable clarity only in the sixteenth century and still encountered deep resistance, was based on a perception of the world as an infinitely complex population of forces in conflict that, though ceaseless and terrifying, was nevertheless not altogether maleficent. A lawyer knew from experience that, in this world, constructive results sometimes came from the clash of forces and that to avoid conflict might, in social terms, invite worse consequences than to accept it. Like Paolo Sarpi, legal adviser to the Venetian Republic, he might therefore deplore an excessive pacifism, either in James I or at home.^[44] As Sarpi wrote to a French lawyer, in one of the international exchanges now characteristic of the legal profession, the times needed a Democritus or a Heraclitus, a remark equally applicable to metaphysics and to politics in its sense of the world as a dynamic flux of particular entities in incessant interaction.^[45] The positive value of confrontation between opposing forces is suggested at another level by Bacon's observation that "truth emerges more readily from error than from confusion."^[46] Sarpi, who was also in touch with Bacon's circle, would have agreed with this early hint of the liberal principle that truth may be better conceived as a pursuit than as a discovery and that it may be preferable to take a doubtful position than none at all.^[47] Also suggested was the active life in which men are willing to engage with an adversary, however dubious the battle; and we are reminded again of the original connections between the law and the social vision of Renaissance humanism.

A lawyer's experience with the real world of unpredictable and hostile forces was likely to make him suspicious of those great systems of thought which, by presuming to take general account of all possibilities in advance, inhibited adaptation to changing circumstance and interfered with meeting the daily need for practical order. He needed first of all to sort out and scrutinize the discrete data in a case; his mind was characterized by what a distinguished modern jurist has ruefully defined as the capacity to "think about a thing inextricably attached to something

else without thinking of the thing which it is attached to."^[48] Thus the lawyers of our critical period were notable for their repudiation of systems and their preference for such limited sense as could be constructed from particular phenomena. Guicciardini's famous rejection of abstract speculation and generalization^[49] found a parallel in Sarpi's contrast between dialectic and law, in the emphasis of such French jurists as Pithou and Pasquier on the particularities of time, place, and circumstance, and in Bacon's contempt for Scholasticism and his opposition to the systematization of the law itself, except in chronological terms that would respect its particularity.^[50] This helps to explain why the law, which the notary Salutati had championed against the deductive and humanly irrelevant science of the fourteenth century,^[51] converged in the seventeenth with the new empirical science. Important lawyers in both France and England were fascinated, perhaps as much as physicians, by the achievements of scientists.^[52] The same flexible and practical attitudes allied law with the—from another point of view lawless—doctrine of reason of state, which suggested the changing uses of the law, without regard to more ultimate considerations, in accordance with the changing needs of states.^[53]

Similar attitudes informed the political vision of lawyers and shaped their loyalties; their rejection of the unworkable and irrelevantly general in favor of the immediately practical for their particular societies made them patriots. The lawyers of Venice resisted the interference of Rome, an interference that followed from a quite different conception of law, on the ground that the good order of Venice sufficiently demonstrated the excellence of her laws; these lawyers argued that the virtue of law was not absolute but relative to the needs of a particular society. Similarly French jurists from the time of Budé rejected the familiar claims of Roman superiority and insisted on the perfection of French law because it was so well adapted to French needs, and this legal nationalism was the point of departure for a more general cultural nationalism. In the same fashion the common lawyers of England praised English ways and the admirable consequences for England of the independence of English law from that of the Continent.^[54]

This position led to general praise of custom as the only satisfactory basis for law. So Pasquier made the case: "Since customs were formed gradually in each province according to the diversity of our characters, it seems appropriate in case of obscurity or doubt to have recourse to people close to us, who by their proximity would seem to conform to our manners and character and so to our customs."^[55] The meaning of this proposition, for which there are analogues in the legal discourse of

other places, was that custom best represented the proper particularity of the law, its necessary correspondence to the concrete and differing needs of peoples. The same point could be made about vernacular languages, and it is hardly surprising to find lawyers among their champions. Latin was customarily employed in a legal tradition that, whatever its practical tendencies, still professed to appeal to universal principles. The language of eternal Rome could always be counted on to give a subliminal ring of ultimate authority to a legal pronouncement: it implied finality where none could be claimed. Hence it is of particular significance that Pasquier advocated the use of French in the law as in other serious subjects, and Coke, though on occasion still inclined to take shelter in Latin, for the most part abandoned the tradition of earlier commentators on the law of his country to write in English.^[56] Through changes in language, too, law was taking on a more practical and particular quality, and more was at stake than the greater ease of communication.

These various tendencies may be summarized in one word that will relate them to a development fundamental to every dimension of early modern European life: secularism—in the sense of a growing acceptance of the autonomy of the various aspects of human concern. Lawyers represented the growing assumption that life in the world is only tolerable when it is conceived as a secular affair and that the world's activities must be conducted according to manageable principles of their own rather than in subordination to some larger definition of the ultimate purpose of existence. By applying this assumption to solve the constantly changing problems of their societies, lawyers were, in a manner far more effective than that of any abstract philosopher, the supreme secularizers of their world. By imposing their own secularism on the machinery of social life they helped to accustom their contemporaries to think in secular terms, thus contributing in a fundamental way to the secularization of every other dimension of human concern: to the secularization of politics and economic life, of science, philosophy, and literature and the other arts.

At the same time it is important to recognize that secularism in this sense is not synonymous with unbelief. Some lawyers, like occasional members of other groups, may have been unbelievers; but more characteristic of the profession was, I think, a preference, shared by both Catholic and Protestant lawyers, for a kind of piety that stressed the spiritual and inward quality of the faith, contrasted it sharply with the world and its ways, and by emphasizing the incongruity liberated secular life from direct religious control. The lawyers and notaries of Renaissance Italy, the Gallican (and later Jansenist) magistrates of Paris, and the

lawyers of early Stuart England, both Puritan and Anglican, all tended to an Augustinian spirituality.^[57] Some of them doubtless felt a personal affinity to Augustine—himself the product of a legal culture—whose influence was so powerful in this period generally.^[58] But this only suggests a deeper community arising, once again, out of a peculiar experience with life. A serious-minded lawyer was forced to recognize that the earthly city for whose affairs he was responsible could at best achieve only a contingent order quite different from that of the heavenly city, and in addition he was constantly reminded of the unregenerate state of humanity and the need for divine assistance. He knew, in short, the difference between law and grace.

For if the lawyer, as secularizer, was in some sense an agent of change, he also represented the need for order and gave expression to the conservative impulses of his age. In a period singularly troubled by the collapse of traditional ways of life and yearning for stability, he promised a measure of security, both for individuals and for society as a whole. His services gave a sense of security to his client; even as he threatened the security of his client's adversary he compelled him to have recourse to the law. The lawyer also supplied security for the future; his role was to foresee and provide against as many as possible of the dangers that might lie ahead, and thus it reflected both distrust of the future and, at the same time, some confidence in the ability of men to plan ahead and to control the unfolding of their earthly lives. Dependence on lawyers has, therefore, some value in revealing attitudes fundamental to changing cultural patterns exhibited in such comprehensive matters as trust, time, and human freedom; resort to lawyers implied the reverse of fatalism.

But legal systems functioned above all as a source of order for society in general. While they did so in an obvious sense through the punishment of wickedness and vice, I would suggest—though it would be difficult to demonstrate concretely—that they also performed a larger service for the vast majority who were disposed to obey the law. Legal systems contributed subtly, in this way, to ending the peculiar restlessness of European society that had come to a climax in the earlier seventeenth century. By defining what was socially intolerable and by reshaping the official forms of social intercourse, laws and the men who worked with them must have gradually renewed that sense of limit in the social universe, so profoundly threatened by the crumbling of established conventions, without which life had become not only practically hazardous but in a deeper sense unsatisfactory. The "crisis in Europe" of Trevor Aston's title was also a crisis of mind and spirit, of which we may take as typical symptoms Don Quixote's disorientation, Mersenne's anxieties

about the fifty thousand atheists in Paris, The Anatomy of Melancholy , the moral anarchy of the Jacobean stage, and the prosecution of witches, in which lawyers also had their part to play. Lawyers helped to relieve the terrors in this world by supplying a social foundation on which some sense of the order and meaning of life could be reconstructed. Through the orientation of the masses of the law-abiding, they enabled their contemporaries once again to feel at home in a familiar world.^[59]

Indeed, even the contribution of the lawyer to change was largely a consequence of his conservatism, of his acceptance of the established order of society and his determination to achieve his purposes within it. Whether in the maintenance of public order or in resolving conflicts of interest, he was above all concerned to make the social system work.^[60] Yet this was likely to make him a conservative with a difference. For, since cases frequently failed to conform exactly to type and in fact often presented novel and ambiguous features, a lawyer's concern with workability was likely to operate against a complete rigidity of mind. If they respected the structures within which they worked, lawyers also required those structures to be flexible, responsible, and continuously useful. Like Montaigne, Montesquieu, Selden, Fielding, or Beccaria, lawyers sometimes presented themselves as reformers.

The attitudes of lawyers also underwent a gradual change as circumstances and demands on the law shifted; the later seventeenth century was to see some modification of the pragmatic and relativistic tendencies that had characterized the profession during the previous hundred years, but here, too, the law is revealed as a sensitive and leading participant in the larger movement of European culture. Thus the legal speculation of France in the classic age displayed a growing tendency to appeal once again to the timeless sanctions of reason and religion;^[61] the idea of a general and prescriptive natural law came to dominate the law schools of Germany and the Netherlands; and even in England efforts were made to systematize the common law on philosophical principles, though Matthew Hale's great History of the Common Law of England (1713) also suggests the limits of English participation in this European movement.^[62] But such changes suggest, too, how the legal mind was constantly prepared to mediate between the general and the particular, the ideal and the concrete, order and energy, ideas and life itself. The life of the law is potentially fraught with tension between these poles; and this also helps to explain the regular prominence of lawyers in the creation of modern culture.

Among the polarities with which lawyers had to live, one proved singularly fruitful for the transition from medieval to modern concep-

tions of the world and is also of particular interest from the standpoint of the historian: the tension between continuity and novelty, between the need of traditionalistic societies to feel at one with the past and the practical requirements of adaptation to change. Such tension, which may account for the prominence, from an early point, of men connected with the law in the composition of history, may be discerned as early as the thirteenth century, in the chronicle of the Paduan notary Rolandino, and in the fourteenth century in the work of the early humanist Albertino Mussato, another Paduan notary, and in the interests of the Venetian doge Andrea Dandolo, who collected legal and political documents and wrote a history of his republic.^[63] In their writings we may already find hints of the secular emphasis, the cool political analysis, and the consciousness of change in human affairs that distinguish the great Florentine histories of Bruni, Poggio, Machiavelli, and Guicciardini, again men all more or less associated with the law. When we add the names of Sarpi, Bacon, and Clarendon to this list of lawyer-historians and note the role of the Scottish bar in establishing the great tradition of historical study in eighteenth-century Scotland,^[64] it should be clear that we are in the presence of some special affinity. Law formed men with broad interests in human affairs who were skilled in the examination of evidence, experienced in the difficult task of sorting out what might be germane to a problem from the irrelevant detail surrounding it, and trained to reconstruct events, as well as close to the constantly changing social and political scene.

But the most important consequences for historiography resulted from the application of historical interests to the law itself, a process that began with the notary Lorenzo Valla, whose close philological researches revealed that the Roman law was a product of time and circumstance, a historical artifact rather than a body of universally valid legal wisdom. And this vision, transmitted to a generation of French jurists by the teaching of Jacques Cujas, stimulated a national school of medieval studies with a novel interest in the development of law and institutions rather than in the wars and royal actions of traditional historical writing. Though this school produced no individual masterpieces, it extended the range of historical scholarship and displayed both a new methodological rigor and above all that secular feeling for the particulars of human experience otherwise characteristic of the legal mind.^[65]

At the same time the lawyer-historians of the later Renaissance in France were no mere érudits . They intended the vision of the past constructed by their scholarly work to be useful; and in the peculiar nature of their historicism they were at one with Sarpi's researches in church history and the English common lawyers' study of the medieval consti-

tution. Lawyer-historians resembled each other in their common contribution to reconciling the conservative instincts of an age desperately concerned with order to the adjustments demanded by the times, through myths supported by the most sophisticated research Europe had yet witnessed. In this way lawyer-historians made a new order palatable and historical study attractive. Thus Venice defended her ecclesiastical and political independence against the pressures of the Counter-Reformation by arguing that her admirable society rested on law and custom going back to the origins of the Republic; by contrast, lawyer-historians maintained, the juridical and administrative centralization demanded by Rome was of recent origin. Sarpi's History of the Council of Trent (1619) was a sustained demonstration of this essentially juridical point.^[66] The lawyers of France employed similar arguments in defense of French customary law against imperial Roman law and of the Gallican liberties against ecclesiastical Rome. In both the underlying issue was the right of self-determination, a matter made subjectively important with the emergence of national feeling and of immediate practical significance, since public order seemed to depend on the exclusion of any kind of foreign interference. Thus the researches of French lawyers demonstrated the value of custom for the particular needs of France and the thesis that the canons of the ancient church had guaranteed the autonomy she now required. The study of history, especially legal history, revealed the subversion in the Middle Ages of a system admirably suited to contemporary needs.^[67]

Much the same argument defended the English common law against the challenge of the royal prerogative. For Sir Edward Coke, too, the problems of contemporary society were to be solved by the recovery of an ancient heritage. "No subject of this realm," he wrote,

but being truly instructed by the good and plain evidence of his ancient and undoubted patrimony and birth-right (though he hath for some time by ignorance, false persuasion, or vague fear been deceived or dispossessed) but will consult with learned and faithful councillors for the recovery of the same. The ancient and excellent laws of England are the birth-right and the most ancient and best inheritance that the subjects of this realm have, for by them he enjoyeth not only his inheritance and goods in peace and quietness, but his life and his most dear country in safety. (I fear that many want true knowledge of this ancient birth-right.)^[68]

The defects in the scholarship supporting this vision were not difficult to identify; Hobbes was critical of Coke on this score,^[69] and by the later

seventeenth century men were casting about for a better foundation for the social order than this mythical past. But Coke was psychologically on sounder ground than Hobbes in his sense of the kind of argument required by the times; like Sarpi, like the lawyers of France, Coke helped contemporaries to accept change by representing it as continuity. Serious consideration of some other basis for law and order, and therefore for human liberty and human rights, depended on a new political and cultural climate.

Nevertheless the myth of a recovered past proved a perennial resource of European culture, and it should be of particular interest to those who think of themselves as historians of modern Europe. The lawyers did not create the myth themselves; they merely applied to their own discipline a notion common to reformers of every kind for centuries. It is, of course, the myth of renewal that is at the heart of both the Renaissance and the Reformation. But because of the central importance of the law in the development of modern European society, the application of the idea in this domain gave to the conception of an initial perfection, decay, and recovery the broadest possible social resonance. It could now serve as the organizing principle for understanding the whole process of secular history. In dealing with lawyers, therefore, we are also looking at the origins of the idea of modern history itself.