The ancient constitution of England was a 17th-century political theory about the
common law, and the antiquity of the
House of Commons, used at the time in particular to oppose the
royal prerogative. It was developed initially by
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as ...
, in his
law reports; and has been analysed in modern times by
J. G. A. Pocock
John Greville Agard Pocock (; born 7 March 1924) is a historian of political thought from New Zealand. He is especially known for his studies of republicanism in the early modern period (mostly in Europe, Britain, and America), his work on ...
in ''The Ancient Constitution and the Feudal Law'' (1st edition 1957; reissued "with a retrospect" 1987).
This is not to be conflated with Bancroft-Prize-winner
Mary Sarah Bilder's "transatlantic constitution."
Legal antiquarianism
The self-conscious
antiquarian
An antiquarian or antiquary () is an aficionado or student of antiquities or things of the past. More specifically, the term is used for those who study history with particular attention to ancient artifacts, archaeological and historic si ...
study of the law gathered momentum from the 15th century. It supported the theories of the ancient constitution. In his ''
Institutes of the Lawes of England
The ''Institutes of the Lawes of England'' are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. Widely recognized as a foundational document of the common law, they have been cit ...
'' Coke challenged the accepted view of the
Norman Conquest by asserting it amounted to
trial by battle, with
William the Conqueror agreeing to maintain the Anglo-Saxon laws.
Political role
In the reign of
Charles I of England, reasoning based on the "ancient constitution" became available as a
resistance theory for those who saw the monarch as high-handed. In its theoretical aspects, this type of reasoning is now seen as loaded with politics or ideology, rather than being the antiquarian study its proponents claimed for it. Coke's style of argument was inherently conservative, based as it was on defending a legal continuity claimed to be rooted in English governance from before 1066; but it is now argued that a radical variant was developed in the
English Civil War period, by
Nathaniel Bacon and
William Prynne
William Prynne (1600 – 24 October 1669), an English lawyer, voluble author, polemicist and political figure, was a prominent Puritan opponent of church policy under William Laud, Archbishop of Canterbury (1633–1645). His views were presbyter ...
in particular.
During the
Exclusion Crisis
The Exclusion Crisis ran from 1679 until 1681 in the reign of King Charles II of England, Scotland and Ireland. Three Exclusion bills sought to exclude the King's brother and heir presumptive, James, Duke of York, from the thrones of England, S ...
of the late 1670s and early 1680s, the theory of the ancient constitution was upheld by Whig writers such as
William Petyt
William Petyt (or Petit) (1640/1641 – 3 October 1707) was an English barrister and writer, and a political propagandist in the Whig interest.
Life
Petyt was born in 1640 or 1641 in the village of Storiths, near Bolton Abbey, Skipton, Yorkshir ...
,
Algernon Sidney
Algernon Sidney or Sydney (15 January 1623 – 7 December 1683) was an English politician, republican political theorist and colonel. A member of the middle part of the Long Parliament and commissioner of the trial of King Charles I of England ...
and
James Tyrrell
Sir James Tyrrell (c. 1455 – 6 May 1502) was an English knight, a trusted servant of king Richard III of England. He is known for allegedly confessing to the murders of the Princes in the Tower under Richard's orders. William Shakespeare ...
. The Royalist writer
Robert Brady criticised them in his ''Introduction to the Old English History'' (1694) and in the first volume of his ''History of England'' (1695). Following the studies of feudal history made by
Henry Spelman and
William Dugdale
Sir William Dugdale (12 September 1605 – 10 February 1686) was an English antiquary and herald. As a scholar he was influential in the development of medieval history as an academic subject.
Life
Dugdale was born at Shustoke, near Coles ...
, Brady argued that
William I at the
Norman Conquest had completely changed English law and had introduced feudal tenures. Whereas Petyt maintained that a class of freeholders had survived from Anglo-Saxon times despite the Norman Conquest, Brady argued that during the Middle Ages the population was entirely feudal, with no freeholders.
During the 1730s the ancient constitution again became the subject of debate. The Tory politician
Lord Bolingbroke
Henry St John, 1st Viscount Bolingbroke (; 16 September 1678 – 12 December 1751) was an English politician, government official and political philosopher. He was a leader of the Tories, and supported the Church of England politically des ...
sought to use the traditional Whig belief in the ancient constitution to criticise the Whig government of
Robert Walpole. In his ''Remarks on the History of England'' (1730–31) and ''A Dissertation upon Parties'' (1733–34) Bolingbroke asserted that the freedoms bestowed on Englishmen by the ancient constitution were undermined by Walpole's corrupt government. The
Glorious Revolution of 1688 had sought to restore the ancient constitution but (Bolingbroke argued) it had been betrayed by Walpole. Bolingbroke insisted that annual parliaments, the exclusion of
placemen
In the political history of Britain, placemen were Members of Parliament who held paid office in the civil service, generally sinecures, simultaneously with their seat in the legislature.
William and Mary
Placemen exerted substantial influence ...
from parliament and a militia would save the ancient constitution from Walpole's corruption.
Walpole's supporters in the press countered Bolingbroke by claiming that the ancient constitution was a fiction: Englishmen owed their freedom to the Revolution of 1688 and to the modern Whigs. In order to undermine Bolingbroke's criticisms, they used Brady's work to maintain that Englishmen in the Middle Ages had not been free. The Whig writer
Lord Hervey, in his ''Ancient and Modern Liberty Stated and Compared'' (1734), argued that until the Revolution of 1688 there was no liberty in England.
Receiving criticism from various sources, one of which included ''The Freeholders Grand Inquest touching our souveraigne Lord the King and his Parliament'' published by an anonymous sources in 1647 that forcefully refuted its relevant arguments, the antiquity of
House of Commons was gradually out of fashion. In his 1762 work ''History of England'',
David Hume drew upon Spelman, Dugdale and Brady and explained no one doubted early parliaments were composed of the king and his great barons, which reflected that modern idea of progress was replacing the doctrine of an ancient constitution.
In his ''
Reflections on the Revolution in France'' (1790), the Whig MP
Edmund Burke argued that the Revolution of 1688 was "made to preserve our ''antient'' indisputable laws and liberties ... We wished at the period of the Revolution, and do now wish, to derive all we possess as ''an inheritance from our forefathers''". Burke was unusual in reverting to the ancient constitution because by the time he was writing it was usually employed by the reformist intelligentsia. Pocock argues that the doctrine of the ancient constitution may have helped Burke "create his intense historical awareness of the common-law tradition as 'the stationary policy of this kingdom'—as a factor shaping English political thought and behaviour".
[J. G. A. Pocock, 'Burke and the Ancient Constitution—A Problem in the History of Ideas', ''The Historical Journal'', Vol. 3, No. 2 (1960), p. 143.]
See also
*
Leges Edwardi Confessoris
The title ''Leges Edwardi Confessoris'', or ''Laws of Edward the Confessor'', refers to a collection of laws, purporting to represent English law in the time of Edward the Confessor (reigned 1042–1066), as recited to the Norman invader king Wil ...
*
Rights of Englishmen
*
Fundamental Laws of England
*
History of the constitution of the United Kingdom The constitution of the United Kingdom is an uncodified constitution made up of various statutes, judicial precedents, convention, treaties and other sources. Beginning in the Middle Ages, the constitution developed gradually in response to vario ...
Notes
Further reading
*{{cite book , first=J. G. A. , last=Pocock , author-link=J. G. A. Pocock , title=The Ancient Constitution and the Feudal Law: a study of English historical thought in the seventeenth century , edition=2nd , place=Cambridge , publisher=Cambridge University Press , year=1987 , isbn=0521303524
Political history of England
History of the Constitution of the United Kingdom
Royal prerogative
17th century in England