LAW, ORDER AND THE SENSE OF THE PAST

Contemporaries well understood the politics of custom in the early seventeenth century. Its legal and ideological authority masked the multiplicity of contending claims made through the language of custom. Within the parameters of elite politics, critics of arbitrary government identified a fictional ancient constitution, based upon custom, which guaranteed inviolable political and legal rights to the subject. Plebeians used a similar terminology to articulate a vision of the proper ordering of society which often jarred with that of their rulers. Yet modern social historians are only starting to appreciate the political qualities of custom. The language of custom held a discursive hegemony within many local plebeian cultures. Its institutions could provide an organizing focus for resistance, just as its basis in law granted legitimacy to its defence. Custom defined the values upon which the public world of local plebeian politics was built. Nowhere was this more obviously the case than in free mining law.

The language of custom enabled miners to refute patrician definitions of them as lawless and barbaric. In answer to allegations of communism, the miners laid claim to an ‘indubitable custom’ which had by virtue of precedent, court ruling and continuous usage been ‘strengthened by law as the warrant of their undertakings’. In protecting the ‘custom of the myne’, they defined themselves as the real defenders of law, contrasting their legitimacy to the ‘lawless’ and ‘disorderly usage’ of lords who employed ‘hirelings’.