Abstract
Tidying up loose ends can be an untidy business. In consequence this will be an untidy chapter. It is required to perform three separate tasks which together will both flesh out our portrait of English ancient constitutionalism and lay a foundation for the second part of this book (which places the theory of the ancient constitution into the background of early-seventeenth century English political discourse). The first of the three tasks will involve a consideration of the historiographical debates surrounding the nature of ancient constitutionalist thought. Of these there are two: the question of its insularity; and the question of its relationship with the idea of conquest. For both of these matters the findings of the previous chapter have clear implications. The second of our tasks will be to determine the political implications of English ancient constitutionalism. What sort of political theory could be raised upon the foundations that it provided? Did it have a ‘radical face’, as some historians have argued? Our third and final task — the most difficult of them all — will be to examine the chronology of the theory of the ancient constitution. What were its origins and sources? When did it begin? When did it end? We shall then discover that the theory, in its ‘classic phase’, lasted only from the reign of James I (though it had deep Tudor roots) to the Civil War (though it had also a lengthy aftermath).
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Notes
Hans S. Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge, 1985), chpt. 9, esp. pp. 174–5, 166 (this chapter is reprinted as Pawlisch,’ sir John Davies, the Ancient Constitution, and Civil Law’, Historical Journal vol. 23 (1980), pp. 689–702); W. D. Hassell (ed.), A Catalogue of the Library of Sir Edward Coke (New Haven, 1950) — this shows Coke to have owned numerous civil-law works, and a considerable number of political and historical writings, including works by Machiavelli, Justus Lipsius, Bodin, Guicciardini, Pasquier, de la Popelinière, as well as many English writers.
Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), chpt. I; David Sandler Berkowitz, John Selden’s Formative Years: Politics and Society in Early Seventeenth-Century England (Washington, 1988), chpt. 3& p. 69; Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979), p. 83; Martha A. Ziskind, ‘John Selden: Criticism and Affirmation of the Common Law Tradition’, American Journal of Legal History vol. XIX (1975), pp. 22–39.
Richard J. Terrill, ‘Humanism and Rhetoric in Legal Education: The Contribution of Sir John Dodderidge (1555–1628)’, Journal of Legal History vol. 2 (1981), pp. 30–44
Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts 1590–1640 (London, 1972), pp. 143–9; and Prest, ‘The Dialectical Origins of Finch’s Law’, Cambridge Law Journal vol. 36 (1977), pp. 326–352.
Christopher Brooks & Kevin Sharpe, ‘Debate: History, English Law and the Renaissance’, Past and Present No. 72 (1976), pp. 133–42
Louis A. Knafla, ‘The Influence of Continental Humanists and Jurists on English Common Law in the Renaissance’, in R. J. Schoeck (ed.), Acta Conventus Neo-Latini Bononensis: Proceedings of the Fourth International Congress of Neo-Latin Studies, Bologna 26 August to 1 September 1979 pp. 60–71. For some sense of the general European intellectual scene and the involvement in it of English scholars see Kevin Sharpe, Sir Robert Cotton 1586–1631: History and Politics in Early Modern England (Oxford, 1979), chpt. III.
Cf. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957; new ed. 1987), pp. 263–4 & p. 263 n. 11
Paul Christianson, ‘Political Thought in Early Stuart England’, Historical Journal vol. 30 (1987), p. 900
see also Donald Kelley’s reply to Brooks & Sharpe, in Past and Present No. 72 (1976), pp. 143–6.
Compare the account of insularity — partly accurate, partly condescending — in A. B. Ferguson, Clio Unbound: Perception of the Social and Cultural Past in Renaissance England (Durham, NC, 1979), pp. 259–66.
The major contributions are Pocock, Ancient Constitution Quentin Skinner, ‘History and Ideology in the English Revolution’, Historical Journal vol. 8 (1965), pp. 151–78
John M. Wallace, Destiny His Choice: The Loyalism of Andrew Marvell (Cambridge, 1968; pbk. ed. 1980), chpt. 1; and
Johann P. Sommerville, ‘History and Theory: the Norman Conquest in Early Stuart Political Thought’, Political Studies vol. 34 (1986), pp. 249–61.
For Coke see Sommerville, ‘History and Theory’, pp. 252–3; John Selden, The Historie of Tithes (London, 1618), p. 482.
Robert C. Johnson, Mary F. Keeler, Maija J. Cole & William B. Bidwell (eds.), Commons Debates 1628: Volume III — 21 April–27 May 1628 (New Haven, 1977), p. 528; Pocock, Ancient Constitution pp. 299–300; Sommerville, ‘History and Theory’, pp. 258–9. Curiously, Sommerville arrives at the (incorrect, in my view) reading that Mason denied the Conquest to have occurred and believed an ancient (pre-conquest) contract to be still in force. In fact, Mason was arguing that the post-Conquest Statutes were themselves tantamount to an original contract. Sommerville’s reading is accepted by Christianson, ‘Political Thought in Early Stuart England’, p. 957.
Sir John Hayward, The Lives of the III Normans, Kings of England (London, 1613), p. 96. (However, Hayward’s overall verdict is not as harsh or unequivocal as the quotation suggests: see important qualifications on pp. 101–3, 122–4)
Hayward, A Treatise of Union of the two Realmes of England and Scotland (London, 1604), p. 11.
William Fulbecke, A Parallele or Conference of the Civill Law, the Canon Law, and the Common Law of this Realme of England (London, 1601), ‘To the courteous reader’, sig. **1. On Fulbecke’s background see DNB and Brian P. Levack, The Civil Lawyers in England 1603–1641: A Political Study (Oxford, 1973) pp. 136–7.
See Levack, Civil Lawyers pp. 148–50. On Thomas Starkey, whom Levack sees as a precursor of the early-seventeenth century civilians, see the interesting background material in Thomas F. Mayer, Thomas Starkey and the Commonweal: Humanist Politics and Religion in the Reign of Henry VIII (Cambridge, 1989), pp. 61–2
This aspect of St German’s thought is well caught by John Guy, in Alistair Fox & John Guy, Reassessing the Henrician Age: Humanism, Politics and Reform 1500–1550 (Oxford, 1986), pp. 102–3, 180–87
John Guy, Christopher St. German on Chancery and Statute (London, Selden Society, 1985), pp. 19–20, 64–94.
Edward Hake, Epieikeia: A Dialogue on Equity in Three Parts (ed. D.E.C. Yale) (New Haven, 1953), p. 5.
Some discussions of the varieties of de facto theory are John M. Wallace, Destiny His Choice chpt. 1; Quentin Skinner, ‘Conquest and Consent: Thomas Hobbes and the Engagement Controversy’ in G. E. Aylmer (ed.), The Interregnum: The Quest for Settlement 1646–1660 (London, 1972
rev.ed. 1974), chpt. 3; Tuck, Natural Rights Theories chpt. 6; Glenn Burgess, ‘Usurpation, Obligation and Obedience in the Thought of the Engagement Controversy’, Historical Journal vol. 29 (1986), pp. 515–36.
One scholar has remarked on the way in which the common lawyers conflated ‘the actual and the ideal’: Enid Campbell, ‘Thomas Hobbes and the Common Law’, Tasmanian University Law Review vol. I (1958), p. 31, n. 64. Even more significant is Robert Parsons’ complaint about Coke, that though he has claimed to offer (in his remarks on Caudrey’s Case) two types of argument, ‘the first De Jure the second De facto’ in the end even when he embarks on the former arguments ‘yet doth he nothing lesse then prosecute that kind of proofe, but rather slippeth to the second, which is De Facto endeavoring to proove, that certaine Kings made certaine lawes, or attempted certaine factes sometimes and upon some occasions’, Robert Parsons, An Answere to the Fifth Part of Reportes lately set forth by Sir Edward Cooke (London?, 1606), p. 63. By the standards acceptable to the Jesuit Coke did not have legal arguments because, as a common lawyer he tended to take as law not what should be done but what had been done (and was still done). For him, of course, long usage was proof of rationality and rightness, but Parsons’ incredulity at the procedure should remind us of the oddity of such an argument when viewed from the perspective of classic natural law thinking.
Janelle Greenberg, ‘The Confessor’s Laws and the Radical Face of the Ancient Constitution’, English Historical Review vol. 104 (1989), p. 612.
For introductions to this subject see S. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640–1660 (The Hague, 1966) and D. Veall, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970).
For an interpretation of the Leveller critique of the existing order that implicitly draws on these views see Brian Manning, The English People and the English Revolution (Harmondsworth, 1978), chpt. 9.
Christopher Hill, ‘The Norman Yoke’, in his Puritanism and Revolution: Studies in Interpretation of the English Revolution of the 17th Century (Harmondsworth, 1986; orig. ed. 1958), chpt. 3, pp. 58–125. See also H. N. Brailsford, The Levellers and the English Revolution (London, 1976; orig. ed. 1961), chpt. VII.
R. B. Seaberg, ‘The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity’, Historical journal vol. 24 (1981), pp. 791–806.
I have attempted a (very preliminary) survey of the 1640s from this perspective in Glenn Burgess, ‘The Impact on Political Thought: Rhetorics for Troubled Times’ in J. S. Morrill (ed.), The Impact of the English Civil War (London, 1991), chpt. IV.
For Lilbume’s citations from Coke and various other legal-historical sources see D. B. Robertson, The Religious Foundations of Leveller Democracy (New York, 1951), pp. 126–32.
Andrew Sharpe, ‘John Lilburne and the Long Parliament’s Book of Declarations A Radical’s Exploitation of the Words of Authorities’, History of Political Thought vol. 9 (1988), pp. 19–44.
John Lilburne, The Legall Fundamentall Liberties of the People of England (London, 1649), pp. 1–18.
John Lilburne, The Free-Mans Freedome Vindicated (London, 1646), p. 3.
E.g. John Lilburne, An Anatomy of the Lords Tyranny (London, 1646), pp. 5, 13. See also the attack on the Lord’s imprisonment of Lilburne: A Pearle in a Dounghill (London, 1646) in A. L. Morton (ed.), Freedom in Arms: A Selection of Leveller Writings (London, 1975), p. 82. (On the authorship of this tract see Jack R. McMichael & Barbara Taft (eds), The Writings of William Walwyn (Athens GA, 1989), p. 529.)
On the roots of Lilburne’s anti-Normanism see Andrew Sharp, ‘John Lilburne’s Discourse of Law’, Political Science vol. 40 (1988), p. 31. On the divergence of immemoriality and anti-Normanism note the neat historiographical survey of R. J. Smith, The Gothic Bequest: Medieval Institutions in British Thought 1688–1863 (Cambridge, 1987), pp. 4–6.
See e.g. John Lilburne, The Just Mans Justification (London, 2nd ed., 1647), p. 14. Cf. the reading in Seaberg, ‘The Norman Conquest and the Common Law’, p. 795 which is unbearably strained: I can see no grounds for thinking that Lilburne meant the phrase ‘the mainstreame of our Common Law’ to refer, contrary to its more obvious literal meaning, only to procedural law. It is not hard to find other statements of Lilburne’s anti-Normanism that do not limit the innovations of the Conquest to procedural, as opposed to substantive, law: e.g. John Lilburne, Regall Tyrannie discovered (London, 1647), p. 92: ‘here you have the true story of the subversion of the ancient manner of Parliaments, and the ancient Lawes and Liberties of Government of this Kingdome, and a Law innovated, and introduced, flowing meerly from the will of a Bastard, Thief, Robber & tirant’.
John Lilburne, Londons Liberty in Chains Discovered (London, 1646), p. 41.
John Lilburne, Strength out of Weaknesse (London, 1649), p. 14.
Edward Hare, St Edwards Ghost: Or, Anti-Normanisme (London, 1647 — written 1642), pp. 14–16 (quotation from p. 16).
On whom see Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (Harmondsworth, 1975), pp. 272–6.
John Warr, The Corruption and Deficiency of the Laws of England Soberly Discovered (1649) in David Wootton (ed.), Divine Right and Democracy: An Anthology of Political Writing in Stuart England (Harmondsworth, 1986), p. 152.
For pertinent discussions of the concept of radicalism see J. C. Davis, ‘Radicalism in a Traditional Society: The Evaluation of Radical Thought in the English Commonwealth 1649–1660’, History of Political Thought vol. 3 (1982), pp. 193–213
Davis, ‘Radical Lives’, Political Science vol. 37 (1985), pp. 166–72
and, for an attempt to expunge the term altogether, Conal Condren, ‘Radicals, Conservatives and Moderates in Early Modern Political Thought: A Case of Sandwich Islands Syndrome?’, History of Political Thought vol. 10 (1989), pp. 525–42.
Clarendon, The History in The History of the Rebellion and Civil Wars in England … Also His Life Written by Himself (Oxford 1843), p. 267.
These remarks summarise Richard Tuck, ‘“The Ancient Law of Freedom”: John Selden and the Civil War’ in John Morrill (ed.), Reactions to the English Civil War 1642–1649 (London, 1982), chpt. 6.
Greenberg, ‘The Confessor’s Laws’, p. 614, n. 1 argues that immemoriality was compatible with theories of original contract on the grounds that ‘immemorial’ meant only before the date of legal memory (3 September 1189). I know of almost no evidence for the pre-Civil-War period to indicate that immemorial was taken to mean anything other than of unknown origin. The 1189 date was a later development, and may help to explain how after 1660 ancient constitutionalism did become mingled with theories of original contract. But this development marked the end of the ‘classic’ phase of ancient constitutionalism and was not a characteristic of it. (See also C. C. Weston & J. R. Greenberg, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, 1981), pp. 132–3: Weston and Greenberg cite in support of their contention Alan Wharam, ‘The 1189 Rule: Fact, Fiction or Fraud?’, Anglo-American Law Review vol. I (1972), pp. 262–79, but this article actually demonstrates persuasively that it was not until the late seventeenth century at the earliest that immemorial came to mean only prior to 1189.)
Nathaniel Bacon, An Historical Discourse of the Uniformity of the Government of England. The First Part (London, 1647), chpt. 4, esp. pp. 15, 16.
E.g. John Sadler, Rights of the Kingdom; Or, Customs of our Ancestours (London, 1649), pp. 21–22.
J. G. A. Pocock, ‘England’ in Orest Ranum (ed.), National Consciousness, History and Political Culture in Early-Modern Europe (Baltimore, 1975), pp. 105–6, 106ff.
J. G. A. Pocock, ‘The History of British Political Thought: The Creation of a Center’, Journal of British Studies vol. 24 (1985), pp. 290–1. Also Pocock, Machiavellian Moment pp. 340–1.
On precedent in English law see C. K. Allen, Law in the Making (Oxford, 7th ed., 1964), pp. 187–235.
Sir John Fortescue, De Laudibus Legum Anglie (ed. S. B. Chrimes), (Cambridge, 1949), chpts. XV-XVII.
Antiquarianism can be seen as a product of humanism, a case most cogently argued in Joseph M. Levine, Humanism and History: Origins of Modern English Historiography (Ithaca NY, 1987), chpt. 3. Also Ferguson, Clio Unbound a general study of the impact of the Renaissance on English views of the past, but N.B. the review by G. R. Elton, History and Theory vol. 20 (1981), pp. 92–100.
On Verstegan see T. D. Kendrick, British Antiquity (New York, 1970), pp. 116–20
on Saxonism more generally Samuel Kliger, The Goths in England: A Study in Seventeenth and Eighteenth Century Thought (New York, 1972).
The material on which this rests has been discussed in the previous chapter; but note that Selden also discussed the Britons in his notes to Michael Drayton’s Poly-Olbion (1613). Here Selden was circumspect in his disagreement with a popular myth, but the implications of his remarks were unmistakable. See Michael Drayton, Poly-Olbion … Being the Fourth Volume of his Works (ed. J. William Hebel) (Oxford, 1961), pp. viii-xiv, 21–6.
On which see Retha M. Warnicke, William Lambarde: Elizabethan Antiquary 1536–1601 (London, 1973), pp. 22–6.
Almost certainly the debates on this subject were a crucial catalyst to the development of ‘mature’ ancient constitutionalism. There were genuine fears in the first decade of James I’s reign that Union would mean the complete destruction of the common law, so an argument that could demonstrate its perfect utility in coping with England’s political needs was a valuable weapon for those who wished to oppose legal union of the two kingdoms. See, on this, Brian P. Levack, The Formation of the British State: England, Scotland, and the Union 1603–1707 (Oxford, 1987), chpt. 3 (also Levack’s other writings on the subject, referred to in ibid., p. 244). A general introduction to the Jacobean debates is Bruce Galloway, The Union of England and Scotland 1603–1608 (Edinburgh, 1986)
useful in suggesting the importance of the Union issue for early Jacobean politics is Conrad Russell, ‘English Parliaments 1593–1606: One Epoch or Two?’, in D. M. Dean & N. L. Jones (eds), The Parliaments of Elizabethan England (Oxford, 1990), chpt. 8.
E.g. John Selden, Jani Anglorum Facies Altera transl. by Redman Westcot in Tracts Written by John Selden (London, 1683), pp. 27–8
Sir Edward Coke, ‘Of the King’s Ecclesiastical Law’ [Caudrey’s Case], in Fifth Part of the Reports (1605) (and N.B. the reply of Robert Parsons, An Answere to the Fifth Part of Reportes lately set forth by Sir Edward Cooke (London?, 1606), esp. pp. 92–165.)
See F. J. Levy Tudor Historical Thought (San Marino, Calif., 1967), chapt. III, ‘The Reformation and English History Writing’, esp. pp. 114–22 for Parker and the historical defence of the Elizabethan Settlement.
See the modern edition, with a useful introduction, John Jewel, An Apology of the Church of England (ed. J. E. Booty) (Charlottesville, 1963)
for further discussion see J. E. Booty, John Jewel as Apologist of the Church of England (London, 1963).
Thomas Bilson, The True Difference between Christian Subjection and Unchristian Rebellion (Oxford, 1585), pp. 515–7.
For pertinent discussion see Peter Lake, Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker (London, 1988), pp. 132–5
William Lamont, ‘The Rise and Fall of Bishop Bilson’, Journal of British Studies vol. 5 (1966), pp. 22–32.
For the latest word on whom see Jane Facey, ‘John Foxe and the Defence of the Elizabethan Church’, in Peter Lake & Maria Dowling (eds.), Protestantism and the National Church in Sixteenth Century England (London, 1987), chpt. 7.
John Aylmer, An Harborowe for Faithfull and Trewe Subjectes (Strasburg [London], 1559), sigs H3–H4.
Some aspects of this have been pulled together in Patrick Collinson, ‘The Monarchical Republic of Queen Elizabeth I’, Bulletin of the John Rylands University Library vol. 69 (1986–7), pp. 394–424.
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© 1992 Glenn Burgess
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Burgess, G. (1992). Problems and Implications. In: The Politics of the Ancient Constitution. Palgrave, London. https://doi.org/10.1007/978-1-349-22263-6_3
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