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The Ancient Constitution of England

Chapter

Abstract

The phrase ‘the ancient constitution’ is a misleading one.1 It tends to suggest a fixed constitution that had existed sometime in the past, and to conjure up the image of a Golden Age of liberty and constitutional perfection to be found in days of old. But this is not really what was meant by the term. ‘The ancient constitution’ was not a constitution of the past; it was the present constitution, the constitution of the seventeenth century. This is to say no more than that the ancient constitution was a collection of laws and institutions that had evolved in a continuous process whose beginnings were lost to human memory (including, that is, written records which were a form of collective memory). In short, an ancient constitution was a modem constitution that had ancient foundations.

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Notes

  1. 1.
    This chapter draws heavily on Glenn Burgess, ‘Custom, Reason and the Common Law: English Jurisprudence 1600–1650’, Cambridge PhD thesis, 1988, chpts 2 & 3.Google Scholar
  2. 2.
    This question is raised by M. I. Finley, ‘The Ancestral Constitution’ in his The Use and Abuse of History (London, 1975, pbk. ed. 1986), chpt. 2.Google Scholar
  3. 3.
    J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1957, new ed. with retrospect, 1987). In Chapter I of the ‘Retrospect’ Pocock comments on this misreading of his initial text.Google Scholar
  4. 4.
    A number of specialized studies of Coke are referred to below. In addition to these, good general introductions are Stephen D. White, Sir Edward Coke and the Grievances of the Commonwealth (Manchester, 1979), esp. chpt. 1Google Scholar
  5. Louis A. Knafla, ‘Die Theorie des “Common Law”’, in Grundriss der Geschichte der Philosophie: Die Philosophie des 17. Jahrhunderts, Band 3— England (Basel, 1988), pp. 517–27, 590–3. Both of these have extensive references to other materials. A useful short interpretative essay is Samuel E. Thorne, Sir Edward Coke 1552–1952 (London, 1957)Google Scholar
  6. but the standard biography remains Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 1552–1634 (London, 1957). On more particular aspects of Coke’s thought, excluding works referred to later, there is useful material in R. A. Mackay, ‘Coke — Parliamentary Sovereignty or the Supremacy of the Law?’, Michigan Law Review vol. 22 (1924), pp. 215–47Google Scholar
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  12. and J. H. Baker, ‘Coke’s Note-Books and the Sources of his Reports’, Cambridge Law Journal vol. 30 (1972), pp. 59–86.CrossRefGoogle Scholar
  13. 5.
    Sir John Davies, A Report of Cases … (Dublin, 1762), ‘Preface Dedicatory’, p. 4.Google Scholar
  14. 6.
    There is a good discussion of Coke’s views on legal change by Charles Gray in Sir Matthew Hale, The History of the Common Law of England ed. Charles M. Gray (Chicago, 1971), ‘Editor’s Introduction’, pp. xxiff.Google Scholar
  15. 7.
    Sir Edward Coke, The Second Part of the Institutes of the Laws of England (London, 1671), ‘Preface’. See also Coke, The First Part of the Institutes of the Laws of England (London, 1670), fol. 115b: Statues are ‘for the most part are affirmations of the Common Law’. Compare these remarks with Coke’s general recognition of the legal omnicompetence of parliament in the making and abrogating of laws, First Part of the Institutes fol. 110.Google Scholar
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    Ellesmere, ‘The Speech of the Lord Chancellor of England, in the Exchequer Chamber, touching the Post-Nati’ (1608) in Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 223–4.CrossRefGoogle Scholar
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    Aquinas, S. Theol. 1a, 2ae, qu 97, art 2. in Aquinas: Selected Political Writings ed. A. P. d’Entrèves (Oxford, 1959), pp. 142/3–144/5; Jean Bodin, Six Books of the Commonwealth ed. M. J. Tooley (Oxford, 1955), Bk IV, chpt. 3, pp. 123–8. Machiavelli is a more complex case in that the whole of his work could be said to be a meditation on the difficulties and dangers of legal and constitutional innovation: for a brief example see Machiavelli, The Discourses ed. Bernard Crick (Hardmondsworth, 1970, repr. 1985), I, 25, pp 175–6. For a fuller view of the matter see the interpretation of Machiavelli in J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Tradition (PrincetonGoogle Scholar
  19. 17.
    See, for example, G. P. Gooch, Political Thought in England: Bacon to Halifax (London, 1914–15), pp. 22–34Google Scholar
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    Francis Bacon, Thi Essays ed. John Pitcher (Harmondsworth, 1985), pp. 104, 119.Google Scholar
  22. 20.
    Francis Bacon, ‘Certain Articles or Considerations touching the Union of the Kingdoms of England and Scotland’ (1604) in James Spedding, The Letters and the Life of Francis Bacon vol. III (London, 1868), pp. 230–1.Google Scholar
  23. 21.
    John Hayward, A Treatise of Union of the two Realmes of England and Scotland (London, 1604), pp. 11–16.Google Scholar
  24. 23.
    The tendency to assimilate the ideas of Davies to those of Coke derives, of course, from the powerful reading of Pocock, The Ancient Constitution and the Feudal Law chpt. II. But important qualifications of Pocock’s views are to be found in Hans Pawlisch, ‘Sir John Davies, the Ancient Constitution, and Civil Law’. Historical Journal vol. 23 (1980), pp. 689–702CrossRefGoogle Scholar
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  26. 28.
    I am aware that this chapter does not do full justice to the thought of Fortescue, since its concern is not with reconstructing his ideas in their own context, but with later-almost emblematic-uses of his works. The best introduction to his own ideas probably remains S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936), esp. chpt. 4, but passim. Valuable on his legal thought, especially for seeing at as containing a fundamental tension between its hints of legal positivism and its natural-law integument, is Norman Doe, ‘Fifteenth-Century Concepts of Law: Fortescue and Pecock’, History of Political Thought vol. X (1989), pp. 257–80. References to works on Fortescue’s political theory will be given in Part II.Google Scholar
  27. Peter Stein, Regulae Juris (Edinburgh, 1966), p. 160Google Scholar
  28. Richard Tuck, ‘Natural Rights Theories before Locke’, Cambridge PhD Thesis, 1976, chpt. 3Google Scholar
  29. J. A. Guy, Christopher St. German on Chancery and Statute (London, Selden Society, 1985)Google Scholar
  30. Alistair Fox & John Guy, Reassessing the Henrician Age: Humanism, Politics and Reform 1500–1550 (Oxford, 1986), chpts. 5 & 8. On Hooker see Christopher Morris, Political Thought in England: Tyndale to Hooker (Oxford, 1953, chpt. IX; Peter Munz, The Place of Hooker in the History of Thought (London, 1952)Google Scholar
  31. F. J. Shirley, Richard Hooker and Contemporary Political Ideas (London, 1949)Google Scholar
  32. W. D. J. Cargill Thompson, ‘The Philosopher of the “Politic Society’: Richard Hooker as a Political Thinker’ in Cargill Thompson, Studies in the Reformation: Luther to Hooker (London, 1980), chpt. VI; Robert Eccleshall, Order and Reason in Politics: Theories of Absolute and Limited Monarchy in Early Modern England (Oxford, 1978), chpt. V; Robert K. Faulkner, Richard Hooker and the Politics of a Christian England (Berkeley, Calif., 1981)Google Scholar
  33. J. P. Sommerville, ‘Richard Hooker, Hadrian Saravia, and the Advent of the Divine Right of Kings’, History of Political Thought vol. IV (1983), pp. 229–45Google Scholar
  34. Peter Lake, Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker (London, 1988), chpt. 4.Google Scholar
  35. 30.
    Christopher St German, St German’s Doctor and Student (ed. T. F. T. Plucknett and J. L. Barton) (London, Selden Society, 1974), p. 27. The book was first published in 1523 and has a very complex bibliographical history. Reference should be made to the fine critical apparatus of this edition, and to the editors’ useful introduction. In all quotations I have removed the editors’ markings, used to indicate which edition particular passages are from.Google Scholar
  36. 35.
    I would like to acknowledge the very useful remarks on custom and reason in English law in A. W. B. Simpson, ‘The Common Law and Legal Theory’ in Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (Oxford, 1973), pp. 77–99, esp. pp. 92–3.Google Scholar
  37. 37.
    St German’s Doctor and Student pp. 45–7. On the matter of custom and maxims it might be useful to compare Fortescue: ‘In the laws, indeed, there is no matter and form as in physical things and in things artificially devised. But, nevertheless, there are in them certain elements out of which they proceed as out of matter and form, such as customs, statutes, and the law of nature, from which all the laws of the realm proceed as natural things do out of matter and form, just as all we read comes out of the letters which are also called elements. The principles, therefore, which the Commentator said are effective causes, are certain universals which those learned in the laws of England and mathematicians alike call maxims, just as rhetoricians speak of paradoxes, and civilians of rules of law. These principles, indeed, are not known by force of argument nor by logical demonstrations, but they are acquired, as it is taught in the second book of the Posteriora by indication through the senses and the memory’. (Sir John Fortescue, De Laudibus Legum Anglie (ed. S. B. Chrimes) (Cambridge, 1949), p. 21). Fortescue’s argument would appear to be much less subtle and nuanced than that of St German and later thinkers. In particular, although he seems to have thought that maxims came from custom, statutue or nature, he also seems to have believed that they were timeless axioms (like those of logic or geometry). Consequently there was much less flexibility in his system, since the implication was that the basic principles of the law (maxims) are immutable. If this is so, then there is also little room for custom as an area of continual change or evolution. It is therefore easy to see why Fortescue can believe that English law, by which he probably meant its basic maxims, must have remained unchanged since the time of the Britons. (Pocock, The Machiavellian Moment chpt. 1, pp. 9–20, analyses the shortcomings in Fortescue’s idea of custom but we should not attribute similar shortcomings to other lawyers from St German on. Cf. also Ferguson, Clio Unbound pp. 230–41).Google Scholar
  38. 47.
    Useful on this theme, and in broadening the context in which the idea of the ancient constitution can be seen, is J. P. Sommerville, Politics and Ideology in England, 1603–1640 (London, 1986), chpt. 3, esp. pp. 92–5.Google Scholar
  39. 48.
    John Selden, ‘Notes on Fortescue’ in Sir John Fortescue, De Laudibus Legum Angliae trans. Robert Mulcaster (London, 1616) pp. 17–18.Google Scholar
  40. 49.
    Sir John Fortescue, De Laudibus Legum Anglie ed. S. B. Chrimes, (Cambridge, 1949), chpt. XVII.Google Scholar
  41. 52.
    See, e.g., John Selden, The Historie of Tithes (London, 1618), p. 484, where he talks of Saxon laws being ‘abrogated’ at the Conquest (though not by the authority of Conquest: they were abrogated either by Parliament or by gradual discontinuance, i.e. customarily).Google Scholar
  42. 55.
    Exactly when this promulgation occurred has been the subject of some controversy. See the divergent opinions of Richard Tuck (in Natural Rights Theories: Their Origin and Development (Cambridge, 1979, pbk. ed. 1981), chpt. 5) and J. P. Sommerville (’ John Selden, the Law of Nature, and the Origins of Government’, Historical Journal vol. 27 (1984), pp. 437–47). The latter denies the contention of the former that there was a time before which human beings were not subject to the natural law.CrossRefGoogle Scholar
  43. 58.
    William Noy, A Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdome (London, 1641), p. 1.Google Scholar
  44. 61.
    Sir Henry Finch, Law, or A Discourse Thereof (London, 1627), p. 75. This is probably an early version of Finch’s Nomotechnia (London, 1613). There is a translation of this latter work: see Finch, A Description of the Common Laws of England (London, 1759). (An equivalent passage to be the one quoted is here found on p. 52). For the complex bibliographical history of Finch’s work see Wilfrid Prest, ‘The Dialectical Origins of Finch’s Law’, Cambridge Law Journal vol. 36 (1977), pp. 326–52.Google Scholar
  45. 62.
    John Doddridge, The English Lawyer (London, 1631), pp. 153–4.Google Scholar
  46. 68.
    Francis Bacon, The Maxims of the Law in The Works of Francis Bacon ed. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, vol. VII (Literary & Professional Works, vol. II) (London, 1859), pp. 358–9.Google Scholar
  47. 70.
    See J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1957, new ed. with retrospect, 1987), chpt. II; and David Wootton (ed.) Divine Right and Democracy pp. 32–3, 129, 131–43. Pocock’s views of Davies have been challenged in some respect by Hans Pawlisch,’ sir John Davies, the Ancient Constitution, and Civil Law’, Historical Journal vol. 23 (1980), pp. 689–702; and Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, 1985). See also Pocock’s remarks on Davies in J. G. A. Pocock, Politics, Language and Time: Essays on Political Thought and History (London, 1972), p. 213.Google Scholar
  48. 71.
    Sir John Davies, A Report of Cases … (Dublin, 1762), ‘Preface Dedicatory’, p. 3.Google Scholar
  49. 74.
    For some alternatives to Pocock’s interpretation of Coke on artificial reason see Charles Gray, ‘Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke’ in Perez Zagorin (ed.), Culture and Politics: From Puritanism to the Enlightenment (Berkeley, 1980), chpt. II, pp. 25–66; and John U. Lewis,’ sir Edward Coke (1552–1633): His Theory of “Artificial Reason” as a Context for Modern Basic Legal Theory’, Law Quarterly Review vol. 84 (1968), pp. 330–42. Both contain some suggestive remarks.Google Scholar
  50. 75.
    Sir Edward Coke, The First Part of the Institutes of the Laws of England (London, 1670), Calvin’s Case (this is used as the basis for Pocock’s discussion — see Pocock, Ancient Constitution p. 35) and can be found in State Trials vol. II, col. 612.Google Scholar
  51. 76.
    Sir Edward Coke, The Compleat Copy-Holder (London, 1650, 1st ed. 1641), p. 70. See also Coke, First Part of the Institutes fol. 115b.Google Scholar
  52. 77.
    Hobbes treated Coke’s theory of artificial reason asif it were saying the same thing as Doddridge’s, which it was not. Coke talked of the reason of the law Doddridge of the lawyers. It is, nevertheless, interesting to note that Hobbes did clearly perceive the purpose of the theory, and agreed with it, though he wished to achieve the same effect by other means. For their different reasons, Hobbes and the common lawyers were agreed in wanting to produce a theory in which the civil laws of a state cannot be in conflict with natural law (i.e. reason). I refer above all to Hobbes’s sentence, introducing his discussion of Coke: ‘The Law can never be against Reason, our lawyers are agreed … And it is true …’, Thomas Hobbes, Leviathan ed. C. B. Macpherson (Harmondsworth, 1968, repr. 1983), chpt. 26, p. 316. See also Hobbes, Dialogue Between a Philosopher and a Student of the Common Laws of England ed. J. Cropsey (Chicago, 1971), pp. 53–57. Coke’s formulation is, though, not quite as clear as I have made it: the passage Hobbes quoted does indicate the source of the concept in an idea similar to Doddridge’s. Coke (in the long passage quoted in my text) did slide around between talking of the law as artificial reason, and of artificial reason as something lawyers get by studying diligently. Lawyers gained artificial reason ‘by long study’, and it was something different from ‘every mans natural reason’. But it is implied (eventually) that artificial reason was contained in the laws and then passed on to those who study them deeply enough.Google Scholar
  53. 96.
    Charles Calthrop, The Relation between the Lord of a Mannor and the Copy-holder his Tenant (London, 1650; orig. ed. 1635), pp. 17, 23–4. (Printed with Edward Coke, The Compleat Copy-holder).Google Scholar
  54. 104.
    In general (apart from some of the works in the following note) see Neal W. Gilbert, Renaissance Concepts of Method (New York, 1960), pp. 93–8, and passimGoogle Scholar
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    Besides the work of Tuck, Natural Rights Theories chpt. 5; see also Martha A. Ziskind, ‘John Selden: Criticism and Affirmation of the Common Law Tradition’, American Journal of Legal History vol. XIX (1975), pp. 22–39CrossRefGoogle Scholar
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  65. 107.
    Kelley, ‘History, English Law and the Renaissance’ examines this matter carefully. The debate on this article between Christopher Brooks, Kevin Sharpe and Kelley (Past and Present no. 72 (1976), pp. 133–146) seems to me to leave Kelley’s argument more or less unscathed. See further Knafla, ‘Influence of Continental Humanists’; Peter Stein, ‘Continental Influences on English Legal Thought, 1600–1900’ in Stein, The Character and Influence of the Roman Civil Law: Historical Essays (London, 1988), chpt. 15; and C. P. Rodgers, ‘Humanism, History and the Common Law’, Journal of Legal History vol. 6 (1985), pp. 129–56.Google Scholar
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    Useful in this regard is J. P. Sommerville, Politics and Ideology pp. 92–5; and also George L. Mosse, The Struggle for Sovereignty in England: From the Reign of Queen Elizabeth to the Petition of Right (East Lansing, Mich., 1950), chpt. VIII. However Sommerville’s further contention (pp. 105–8) that the common lawyers were natural law theorists seems misleading. They did use the language of natural law occasionally, but often in unusual circumstances (most notably Calvin’s Case which was concerned with Scotland as well as England and so required consideration of more than just English law). In a domestic English context, though, common lawyers, as has been intimated, gave little place to a natural law exterior to and capable of limiting the capacity of the common law. The ‘classic’ natural law theorists believed that positive laws were subject to the judgement of those (theologians and others) who were able to interpret natural law; the common lawyers, in one way or another, subverted this position. A classic natural law theorist, even such an unusual one as Marsilius of Padua, believed that there was an external standard by which positive law could be judged, which meant that the positive law could be examined using natural reason alone (see Defensor Pads I, x, 5, & II, xii, 9 — Gewirth ed. (Toronto, 1980), pp. 36, 191). See also Ewart Lewis, ‘The “Positivism” of Marsiglio of Padua’, Speculum vol. 38 (1963), pp. 541–82Google Scholar
  93. Cary J. Nederman, ‘Nature, Justice and Duty in the Defensor Pacis Marsiglio of Padua’s Ciceronian Impulse’, Political Theory vol. 18 (1990), pp. 615–37, esp. 628–32. For general introductions to the classic natural law tradition, from a variety of perspectives, see A.P. d’Entrèves, Natural Law: An Introduction to Legal Philosophy (London, 2nd. ed., 1970)CrossRefGoogle Scholar
  94. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy trans. Thomas R. Hanley (St Louis, Minnesota, 1947)Google Scholar
  95. Paul E. Sigmund, Natural Law in Political Thought (Cambridge, Mass., 1971)Google Scholar
  96. Leo Strauss, ‘On Natural Law’ in Strauss, Studies in Platonic Political Philosophy (Chicago, 1983), chpt. 6.Google Scholar

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© Glenn Burgess 1992

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