Wit, Will and Governance in Early Modern Legal Literature

By Polito, Mary | Mosaic (Winnipeg), December 1994 | Go to article overview

Wit, Will and Governance in Early Modern Legal Literature


Polito, Mary, Mosaic (Winnipeg)


"Your majesties reigne...[is] an age wherein if science bee increased, conscience is rather decayed, and if mens wits bee great their wills be greater." So begins Francis Bacon's rationale for the writing of his commentary The Elements of the Common Lawes of England, presented to the queen in 1598. His work will provide a remedy for the recent tendency toward cavilling by those witty, wilful and corrupt male subjects (some of them lawyers), "so that the incertainty of law, which is the principal and most just challenge that is made to the lawes of our nation at this time will be...corrected" (Preface). Bacon's concern about the individual's conscience and will (matters which at one time were the jurisdiction of God and his stand-in, the Confessor) and his relation of this concern to the well-being of the state itself aligns his text with a proliferation of 16th-century works articulating the rationale for what Michel Foucault calls the "governance" of the individual by the state.

As historian Colin Gordon explains, "government" used in this way refers to "'the conduct of conduct'...a form of activity aiming to shape, guide or affect the conduct of some person or persons" (2). Through a "political pastorate," the state as "shepherd" will both totalize--know and govern the entire population of a nation--and individualize--instruct, correct and direct the conduct of each citizen. The "policies" of such governance include "startlingly ambitious promises" of prosperity (Gordon 12), of the fulfilment of human desire in this world and not the next, of "the utmost happiness...in life" (Foucault, "Omnes" 250). Foucault argues that this form of government "as a general problem seems...to explode in the sixteenth century" ("Governmentality" 87).

When Francis Bacon complains about those wilful subjects with deteriorating consciences who require such governance, he is principally concerned with what happens in the courtroom, where the law is manipulated through rhetorical prowess. He sets out to discern and relate the true intentions of the principal maxims of the law, in order to protect the law from the devious intentions of duplicitous legal subjects. His concern is "that words are so to bee understood, that they worke somewhat, and bee not idle and frivolous" (18). The words of the law require Bacon "to restraine and represse them" in order that "the great hollownesse and unsafety in assurances of lands and goods" might be corrected ("Epistle Dedicatorie"). He will intervene as master interpreter and guardian, as shepherd in a pastoral relation.

In this essay, I wish to explore how two other 16th-century law books--Doctor and Student and The Lawes Resolutions of Women's Rights: Or, The Lawes Provision for Woemen--employ the "worke" of words in order to operate as "tactics of governance." Both are produced by legal practitioners for a lay reading public. Both provide knowledge about the legal subject for this subject's own consumption, with the promise of greater prosperity through self-knowledge. Doctor and Student is directed implicitly at landholding men; it defines, celebrates and works to limit what it sees as the supreme liberty of those holding absolute title to land. The Lawes Resolutions is directed explicitly at the daughters, wives and widows of such men; it provides English women with knowledge about their own position in the law so that they might use the law (and their own wits) to protect themselves and their estates from the grasp of duplicitous, land-hungry men. The aim of this text is to conscript the services of women in the governance of both themselves and the men with whom they are involved. Both texts paradoxically claim to liberate while acting to restrain their implied readers, soliciting voluntary acts of self-governance for the good of the whole English realm. Such covert enforcement proceeds by the employment of several literary devices: a narrative voice, fictional characters, references to characters from other well known narratives (from St. …

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