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By Mike Fitzgerald, Gregor McLennan, Jennie Pawson

'There is far the following that's actually arguable, yet not anything that may be ignored.' occasions academic complement

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Nourse was an Anglican cleric who converted to Roman Catholicism and literature, Madan another eccentric clergyman whose call for more hangings was repudiated by the judges. The Evangelicals (More, Gisborne) were often embarrassingly direct in their social prescriptions, Cottu was a foreigner, and Christian was a long-winded, egotistical bore. For these reasons they sometimes raised in argument points that more conventional men thought banal or indiscreet, or did not think consciously of at all.

The discretion and voluntaristic nature of the legal system that aided patrician power also enabled others to exploit the law. Indeed, if this had not been the case, if the courts had not provided a forum or an arena open, within limits, to many groups whose purposes cannot be characterized as the exercise of class justice, then the fiction of the rule of law would not have been so potent. When seventeenth- and eighteenth-century Englishmen thought of the law, they thought not only of the criminal law and its preoccupation with theft, but of the common law in its broadest sense and of Popular attitudes to the law 29 the body of regulations and equitable practice which oiled the social mechanism and mediated disputes of all kinds, including those that occurred within as well as between classes.

But here the law falls into a ‘Vagueness [which] renders it possible for judges to treat all combinations to effect any purpose which happens to be distasteful to them as indictable crimes, by declaring this purpose to be “unlawful”’. (‘Kenny’s Outlines of Criminal Law’, 19th ed, 1966, p. 430). Many eighteenth-century Englishmen would have found private agreements by the powerful to manipulate the law not only distasteful but deceitful and dangerous. But only judges and legislators can make matters of taste also matters of law.

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