Front Page Titles (by Subject) 4.: The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries (John Phillip Reid) - The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law
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4.: The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries (John Phillip Reid) - Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law 
The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, edited and with an Introduction by Ellis Sandoz (Indianapolis: Liberty Fund, 2008).
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The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries
During the late spring of 1779 Brigadier General Francis McLean, commanding the British forces at Halifax, established a post of six hundred men on the site of the present town of Castine, Maine. Proclaiming the reinstitution of royal jurisdiction, McLean called for the support of all inhabitants who “are well affected to his Majesty’s person, and the ancient constitution under which they formerly flourished, and from the restoration of which they can alone expect relief from the distressed situation they are now in.” Later that year, a Massachusetts expedition arrived in Penobscot Bay to reduce the British fort. Countering McLean’s proclamation, Brigadier General Solmon Lovell announced the reestablishment of American authority, which, he said, meant rule by the very same ancient constitution that had been McLean’s rallying point. “I have thought proper to issue this Proclamation,” he explained, “hereby declaring that the allegiance due to the ancient constitution obliges to resist to the last extremity the present system of tyranny in the British Government.”1
The event was isolated—a small scrimmage on the marchland of empire to fix the line between the future province of New Brunswick and the future state of Maine. That both sides appealed to the ancient constitution, however, placed the battle within the mainstream of the revolutionary controversy. The ancient constitution had been a central element of the prerevolutionary debate from its beginning with the passage of the Stamp Act to its conclusion with the Declaration of Independence. At one time Patrick Henry was under the mistaken impression that the Virginia Resolves against the Stamp Act, the initial formulation of the American legal case which he drafted, had asserted that without the principle of taxation only by representation “the ancient Constitution cannot subsist.”2 The Declaration of Independence was first published in book form as part of a collection by “Demophilus” entitled The Genuine Principles of the Ancient Saxon, or English Constitution.3 That book was printed in Philadelphia, where the readers of the Pennsylvania Gazette had recently been urged to compare the defects of their state’s constitution “to the English constitution in its original purity, before the Norman invader had abolished as many of the free customs of the people as he possibly could.”4 What Pennsylvanians should do, “Demophilus” urged, was return to the ancient Saxon constitution. “This Colony, having now but one order of freemen in it; and to the honor of Pennsylvania, but very few slaves, it will need but little argument to convince the bulk of an understanding people, that this ancient and justly admired pattern, the old Saxon form of government, will be the best model, that human wisdom, improved by experience, has left them to copy.”5
Nothing new or particularly American was being said, yet there were observers in the mother country who seemed to think either that what colonial whigs said was unusual or that they overargued the ancient constitution. “Upon the whole,” a writer for London’s Critical Review complained, “we cannot help thinking that the American advocates deal too much in . . . references to ancient and prophane history.”6 The point was not well taken. During the eighteenth century the ancient constitution appears to have been more widely cited and defended in Great Britain than in North America. Moreover, there was no dispute about whether the ancient constitution ran in the colonies.7 “It is curious to remark,” the earl of Abingdon noted in 1777 and 1780, “that the Constitution and Form of Government established by our wise Forefathers in America, was precisely, in Principle, the Constitution and Form of Government of the Saxon Heptarchy.”8
The Americanization of the ancient constitution was an assumed fact. When the question arose in parliament as to whether the appeal for murder lay in the colonies, John Dunning, the Chatham party’s lawyer in the Commons, expressed outrage. “I cannot sit silent when it is proposed to be taken away, or suspended with regard to America,” he protested. “We must suppose it is an existing right in America. . . . I have heard it reckoned as the remnant of ancient barbarism that ought not to stand. I wish the constitution could be made more palatable to those who have it in their power to destroy it. Gothicism is almost every part of the constitution. Every part of the constitutional history is gothic. Is it to be understood, that we are to have a macaroni constitution in the room of it?”9 Solicitor General Alexander Wedderburn, who thought the appeal “a remnant of ancient barbarism,” did not know if it was part of American criminal procedure but with apparent regret admitted that an appeal, with its attendant trial by battle, might still be legal in England and Wales. “The law of England admits of no limitation of time beyond a very distant period indeed,” Wedderburn pointed out. “Whatever was the law of England continues to be the law of England.”10 By contrast Edmund Burke rejoiced that neither the appeal of murder nor the trial by battle had been abolished by legislation. “Men have gone upon [the practice] of delivering in their rights to the hands of the state,” Burke lamented. “In proportion as they have given up, they have established this kind of government called absolute, or arbitrary in proportion as they have given up [rights].” It was better not to tinker with ancient practices, not even the anachronistic right to appeal by battle. “It is a thing totally agreeable to the old law. If you destroy this, you will destroy the whole system of jurisprudence. This country has left these two together, meaning to keep up government and liberty.”11
Burke was speaking within the mainstream of eighteenth-century British constitutional thought. Trial by battle “was superstition and barbarism to the last degree,”12 yet liberty might be imperiled if there was a power in government that could abolish the appeal by mere command. Retaining appeal, even as a dormant anachronism, furthered liberty by preserving liberty’s most tenacious support, the authority of custom and the authority of ancient immemoriality. The jurisprudential reason—a major theme to be developed in this essay—was that legislative deviations from the ancient law could be promulgated only if arbitrary authority superior to “law” was constitutional. A more political, less legal explanation was that liberty had been more nearly perfect during ancient than in more recent times, making Gothicism and Saxonism standards for measuring the liberty of existing government institutions. James Otis outlined the theory’s most generally accepted historical premises:
Few people have extended their enquiries after the foundation of any of their rights, beyond a charter from the crown. There are others who think when they have got back to old Magna Charta, that they are at the beginning of all things. They imagine themselves on the borders of Chaos (and so indeed in some respects they are) and see creation rising out of the unformed mass, or from nothing. Hence, say they, spring all the rights of men and of citizens.—But liberty was better understood, and more fully enjoyed by our ancestors, before the coming in of the first Norman Tyrants than ever after, ’till it was found necessary, for the salvation of the kingdom, to combat the arbitrary and wicked proceedings of the Stuarts.13
The same year that Otis wrote, Robert Lowth, bishop of London, making much the same point, pushed the origins of the ancient constitution back to even before the Saxons. “Our Civil Constitution was from the first founded on the liberty of the People,” he told the judges and lawyers attending the Durham assizes. That liberty had been “an essential part of the form of government, that universally prevailed among the northern nations, and was transplanted hither with our Saxon ancestors. The people had their acknowledged rights, and the obligation was reciprocal between them and their governors. These were legal kings, not arbitrary tyrants: they were bound and restrained by the laws of the community, framed with the people’s participation and consent.”14 Whether the constitution had evolved first among German tribes or later with the Anglo-Saxons after they had conquered the Britons was irrelevant to eighteenth-century constitutional thought. What mattered was that it was the same constitution—then and now. “[T]he present civil constitution of England,” Otis concluded, derived “its original” from the Saxons. “This government, like that from whence they [the Saxons] came, was founded upon principles of the most perfect liberty.”15
There is no need to rely on provincial lawyers and established clergymen. Scholars and judges also embraced the ancient constitution without qualification. In 1766 Sir William Blackstone, who would serve as Vinerian professor of law at Oxford, member of Parliament, and puisne on the Court of Common Pleas, insisted “that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king’s prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by force of the Norman arms.”16 As late as a decade before the parliamentary reform act, at least one writer was still defending “the genuine unchangeable English constitution.”17 The operative concept—really a probative concept, as we shall see—was of a timeless constitution of unchanging general principles. As understood in the eighteenth century, this timeless or ancient constitution proved “that our Government was always Legal; that the People had their Rights, as well as the Kings their Prerogatives; and had Representatives too, to assert those Rights; that our Kings were not arbitrary, nor our Monarchy absolutely Hereditary.”18
The timeless constitution gave English and British lawyers of the seventeenth and eighteenth centuries a jurisprudential instrument with which to maintain the privileges of parliament and the autonomy of the common law courts against the pretensions of prerogativism— that is, as they saw it, the rule of law against arbitrary government. In the 1760s and 1770s, American whigs resorted to the same ancient constitution for the same purpose, turning against parliament the legal theory that had made parliament supreme over the crown. With reluctance they had concluded that parliament rather than the monarchy had become the potential institution for arbitrariness in imperial government.19 “Our most ardent Desire,” the freeholders of Virginia’s Hanover County told their representatives in 1774, “is, that we and your latest Posterity may continue to live under the genuine unaltered Constitution of England.”20 They meant the same timeless constitution to which Sir Edward Coke had turned in 1628 and on which parliamentary lawyers had relied in 1641. As another Virginian, Richard Bland, had explained just eight years before, it was “a Fact, as certain as History can make it, that the present civil Constitution of England derives its Original from those Saxons who, coming over to the Assistance of the Britons . . . made themselves Masters of the Kingdom, and established a Form of Government in it similar to that they had been accustomed to live under in their native Country.”21
But what was the ancient constitution in the eighteenth century? There may be no better discussion than that of the Craftsman, the newspaper promoting the politics of viscount Bolingbroke. “From the earliest accounts of time,” the Craftsman explained, “our ancestors in Germany were a free people, and had a right to assent or dissent to all laws; that right was exercised and preserved under the Saxon and Norman Kings, even to our days.”22 The Saxons, before they had invaded Britannia, had been a free people, living under a constitution of liberty.
When They were settled, according to their Liking, They form’d a Government upon the same Model; That is, their Leader, or General, was appointed the chief Magistrate, though with much less Power than our modern Kings; the other great Men, or Officers of the Army, held the next Rank in the Commonwealth, like our Lords; and the Body of the People, who follow’d Them, had a third Share in the Government. These three Orders composed what is now called the Legislature. . . . This is what We mean by our ancient Constitution; and though it hath been often interrupted, or depress’d, by Conquest, Usurpation, and arbitrary Power, the Stamina of it have been still preserved, and transmitted down to us thro’ all Ages and Changes of Government.23
The eighteenth-century ancient constitution bestowed on the fortunate Britons a tenacious spirit of liberty, a spirit molded in the German forests and toughened during Tudor and Stuart constitutional battles, “[a] Spirit of Liberty ” which, “transmitted down from our Saxon Ancestors, and the unknown Ages of our Government, preserved itself through one almost continual Struggle, against the Usurpations of our Princes, and the Vices of our People.”24
Though it must be confess’d that our old Saxon Constitution hath undergone many violent Convulsions, since the Conquest, I think the whole Series of our History, as far as We can discover it through the Gloom of Antiquity, is one continued Proof that the Foundations of it were never intirely overturn’d; and though various Alterations have been made in the Form of our Parliaments, the Essentials have been preserved, and the People were never totally deprived of their Share in those Assemblies.25
THE LEGAL PERSPECTIVE
Of the contrasting points of view from which we can study the history of liberty, perhaps the one that is overlooked more than any other is the legal perspective. The “ideology of the Ancient Constitution,” the premier historian of the ancient constitution has contended, was an “elaborate set of historical arguments by which it was sought to show that the common law, and the constitution as it now stood, had been essentially the same since pre-Conquest times and—if the argument were pressed home—since time immemorial, or at least since an unrecorded beginning in the woods of Germany.”26 One need not quarrel with that conclusion to suggest that another dimension can be added. If we find the ancient constitution a puzzle of historiography because the concept of a timeless, never-changing rule of law seems ahistorical, it may be that we are thinking about historical methodology when it would be more helpful to think about forensic argument.
During the seventeenth and eighteenth centuries, in the American colonies27 as well as in England and Great Britain, the ancient constitution generally was argued by lawyers and, if not by lawyers, by others more concerned with lawyerly questions than with history qua history. “Every Englishman who thought about the constitution,” one historian has explained, “thought it in some degree as a lawyer, and Coke’s doctrines merely stated with the force of genius the lawyer’s view of history.”28 Our question may well be whether there was a lawyer’s view of history. Perhaps it was not the view or theory of history but the use— the lawyer’s use of history, or forensic history—that was what gave the ancient constitution significance. After all,
[t]he doctrine of the ancient constitution . . . was the work of common lawyers, and seems to have been shaped throughout by assumptions concerning the common law of England, deeply implanted in the mind of everyone trained in that study. These assumptions were first, that all the law in England might properly be termed common law; second, that common law was common custom, originating in the usages of the people and declared, interpreted and applied in the courts; third, that all custom was by definition immemorial, that which had been usage and law since time out of mind, so that any declaration of law . . . was a declaration that its content had been usage since time immemorial.29
Although as long ago as the 1640s Sir Roger Twysden pointed out that the historian’s law is different from the lawyer’s law and, therefore, their history is different,30 there has been a tendency for us to evaluate forensic history by the canons of the historical method. The common lawyer’s view of the past when arguing premises based on the ancient constitution and immemorial law has been described by phrases such as “incorrect,”31 “not always very accurate,”32 “pseudo-historical literature,”33 “propaganda,”34 and, most frequently, “ahistorical myth”35 or “mythology.”36 It is not necessary to dwell on these comments. What is important is to realize the extent to which scholars trained in the historical method have been critical of seventeenth- and eighteenth-century practitioners of forensic history. In order to appreciate the extent of the dichotomy between the approaches of the two professions, it is also worth noting that criticisms have not always been consistent. Among other charges that have been made against the practitioners of forensic history, it has been said that they misled “real” historians into accepting their history,37 and did this even though the history they wrote was history that real historians knew was “bad” history;38 that they “played havoc with history,”39 perhaps unconsciously,40 yet did not heed the lessons of historians;41 that they lacked training in correct history,42 even though what they wrote, forensic history, was the history they were trained to write.43
Unless we are willing to dismiss as “unscholarly” the theories, writings, and values of most seventeenth- and eighteenth-century constitutionalists, it does seem that the use and abuse of the concept of the ancient constitution deserves to be considered from the perspective of those who used and abused it, and not just by the canons of the historical method as practiced by twentieth-century historians.44 We should stop and ask ourselves what it is that we learn when we are told that by using the term ancient constitution Sir William Blackstone was “apparently locating himself within one of the major currents in seventeenth-century historical thought.”45 Blackstone was concerned with legal thought, not historical thought or its “currents.” Our perspective of judgment should be Blackstone’s, not that of some discipline he was not practicing; nor should we hold him to a standard that he would not have thought relevant had it been explained to him. It does not do to measure usefulness by the historical alone, to say that the “juridical nationalism” of Fortescue and Coke may have been “useful . . . for the rights and privileges of the propertied classes,” but “was a serious impediment to any kind of historical understanding.”46 The question should not be whether juridical nationalism was good history but why it was a concept that Fortescue and Coke believed useful, how they intended to utilize it, and whether it did serve or could have performed the role expected of it by its common law practitioners.
Perhaps we have gone too far down a road of professional separation. Is it possible that historians and lawyers can no longer understand one another because they are asking different questions based on different assumptions? It has been said, for example, that we should understand that “the so-called Brady controversy” was a “debate concerning the English legal past taking place during the last years of Charles II’s reign.”47 Those who participated in the debate would have been more likely to say that it concerned the English legal present as it then existed during the last years of Charles II’s reign. Then there is the contention that the common lawyer’s way of looking at the past was “traditional” rather than “historical.”48 Admitting that it was not “historical,” we might better understand what those lawyers were about if we probed a bit deeper and asked whether their way of looking at the past was more “forensic” than “traditional,”49 or, if traditional, whether it was traditional within the dynamics of constitutional advocacy, with lawyers making arguments they thought would win the case at bar, not explaining what they understood to be the best historical scholarship.
There is one other question to be asked and one further point of precise terminology to be raised. The question is: if seventeenth- and eighteenth-century students of the ancient constitution were not writing history, what were they doing? The answer usually given is politics. The ancient constitution, it is said, was “a political weapon.”50 That answer is certainly correct, but does it go deeply enough? In the context of a constitutional controversy, the adjective political may not be as accurate as we would wish.
In 1775 the British ministry, to free troops to fight in America, hired Hanoverian soldiers for garrison duty at Gibraltar and, perhaps, Ireland. A debate over whether the action was constitutional without parliamentary approval erupted in the House of Commons during which Edmund Burke complained that the attorney general, when defending the administration, “had ransacked history, statutes, and journals.” Lord North replied by asking “whence the proofs and authorities of a point of law could be better drawn, than from history, statutes, and journals.”51 We would do well to mark North’s choice of nouns. Unlike almost all our recent commentators on the ancient constitution, he did not say “point of politics,” that is, he did not ask “whence the proofs and authority of a point of politics could be better drawn.” To assert that law is a more accurate word than politics is not to contend that history, statutes, and journals could not be relevant to politics. They are, however, the essence of legal argumentation. That is one reason Lord North’s word is more “accurate” than the language of those who use political to describe debates about the ancient constitution. However political they may have been, they were even more “legal” or “constitutional.”
The distinction may strike some scholars as mere semantics, but we are concerned with the ancient constitution and, more significantly, with how the ancient constitution was used and argued. It was not argued, that is, as will, choice, decision, or policy. It was, rather, argued as precedent, analogy, principle, and forensic history. The ancient constitution in the eighteenth century was not a political program for the sovereign to implement but a constitutional apparatus of forensic advocacy to propagate anew traditional forms of restraint upon the current sovereign.
Nationality may make a difference as to how we see the distinction. A historian who is British could be less disposed than an American to recognize that something which is “constitutional” is not necessarily “political.” Consider a Briton who is a historian of the eighteenth century and is writing of the Wilkes election controversy, of the laws discriminating against Catholics, or the unprecedented Stamp Act with which parliament attempted for the first time to tax a geographical group of British subjects none of whom elected representatives to the Commons. That historian might reasonably describe each of them equally as “political.” An American historian, by contrast, might more readily think them constitutional if for no other reason than that under the American legal system they posed issues that would be referred to the courts for solution rather than settled in the legislature.
It may be, too, that the distinction is worth pursuing as it could help avoid confusions that have contributed to imprecise or inaccurate history writing. To think, that is, of arguments about the ancient constitution as “legal” or “constitutional” rather than “political” or “historical” should clarify what was said by focusing attention on the forensic reality rather than on the standards of historiography. By way of illustration consider the following paragraph from Sir John Fortescue’s De Laudibus:
The Realm of England was first inhabited by the Britons, afterwards it was ruled and civilized under the Government of the Romans; then the Britons prevailed again; next, it was possessed by the Saxons, who changed the Name of Briton into England. After the Saxons, the Danes lorded it over us, and than the Saxons prevailed a second Time; at last, the Normans came in, whose Descendants obtain the Kingdom to this Day: And, during all that Time, wherein those several Nations and their Kings prevailed, England has nevertheless been constantly governed by the same Customs, as it is at present.52
Thinking of this statement in terms of history or, perhaps, politics rather than as law, a recent commentator expressed surprise “that Fortescue should have taken this abstract and unhistorical view of law since later on he relates the growth of the English jury system, with remarkable penetration, to the social structure of the country.”53 It may be, rather, that Fortescue is less surprising than consistent. From the perspective of legalism he was, in both instances, on the “liberty” side of constitutionalism against power. By arguing that the ancient constitution remained the same through the invasions of the Romans, Saxons, Danes, and Normans, he was saying that constitutional law— not just in those ancient times but in his own day—was based on the authority of custom and the rule of law and, by implication (although this is an issue for a later period), that it was not the command of a sovereign. By delineating how the constitution had changed to permit the growth of the jury he was supporting the same constitutionalism. Common lawyers thought of the jury as they did the ancient constitution— a timeless, changeless, immemorial protector of liberty. Of course they knew that the jury’s function as judge of proof was constantly changing, not only in how it determined facts, but by its encroachment upon other methods of proof through the expansion of writs such as trespass. Between the sixteenth and the eighteenth centuries the English and American people as well as the common law bar would come to cherish the jury as their chief institutional defense against arbitrary state prosecution.54 To evaluate Fortescue’s argument as history leads to the conclusion “that Fortescue retained an essentially static view of society.”55 To think of it as constitutional law, however, could lead to the conclusion that Fortescue, like Coke, Selden, and John Adams, espoused a dynamic interpretation of law in which the ancient constitution was an analogy, or precedent, or body of fundamental principles that could be cited to resist and repel whatever new guise arbitrary power might assume.
THE ADVOCACY OF LAWYERS
That last conclusion goes against the accepted grain. There is an idea currently rife among scholars that the ancient constitution was not a dynamic device spurring the growth of liberty, but a static shield for preserving the status quo. If this is a misunderstanding, the cause may again be vocabulary. It is a fact, we are told, “that the common lawyers, holding that law was custom, came to believe that the common law, and with it the constitution, had always been exactly what they were now, that they were immemorial.”56 Perhaps the terminology of common lawyers has been taken too literally. At least it does seem that some scholars have given undue weight to the word immemorial. The implication has been that lawyers, even as late as Blackstone, should have known better than to have used it.57 Again it may be that we are not asking the most useful question, not why a lawyer like Blackstone was untutored about historical dynamics, but why he ignored what he undoubtedly knew.58
Of course common lawyers,59 even Coke,60 and certainly constitutionalists arguing in the eighteenth century,61 knew that changes had occurred in the “immemorial” law throughout Saxon, Norman, English, and British history. There were, to be sure, some writers who seemed to say that the ancient constitution had been unchanged down through the centuries,62 just as there were others who scorned the entire notion of an ancient constitution.63 But there is little evidence from either side of the Atlantic that members of the bar in general did not appreciate that today’s ancient constitution incorporated yesterday’s innovations or that today’s statutes could become tomorrow’s ancient constitution.64 To acknowledge time, transmission, and change, however, did not require eighteenth-century constitutionalists to abandon the ancient constitution or the concept of immemorial law. Certainly John Fortescue-Aland did not think so when he wrote the preface to a 1714 edition of De Laudibus.
Thus, Sir, we find the Stream of the Laws of Edward the Confessor, flowing from a Saxon Fountain, and containing the Substance of our present Laws and Liberties, sometimes running freely, sometimes weakly, and sometimes stopped in its Course; but at last, breaking thro’ all Obstructions, both mixed and incorporated it self, with the great Charter of our English Liberties, whose true Source the Saxon Laws are, and are still in being, and still the Fountain of the Common Law. Therefore it was a very just Observation of my Lord Coke, who says, that Magna Charta, was but a Confirmation, or Restitution of the Common Law of England; so the Common Law really is an Extract of the very best of the Laws of the Saxons.65
Surely we have here a clue of how the eighteenth century conceptualized the ancient constitution: the common law was the “best” of Saxon laws. Not all Saxon laws were incorporated in the current constitution, only those laws that were the “best” had survived. The best laws of the Saxons surviving in the immemorial ancient constitution were laws that in the eighteenth century were identified with “liberty.” Liberty was the connecting link across the centuries. It may be that the elements of liberty in Saxon times were the same as the elements of liberty in the eighteenth century. It is, to be sure, more likely that eighteenth-century Britain projected its own liberty concepts back to Anglo-Saxon England and what it looked for it found. Had the question been put to most eighteenth-century common lawyers they would have said that the answer was immaterial. Retention of liberty, viscount Bolingbroke explained, was reason enough for Britons to cling to the mystique of the ancient constitution.
[O]ur Constitution is a System of Government suited to the Genius of our Nation, and even to our Situation. The Experience of many hundred Years hath shewn that by preserving this Constitution inviolate, or by drawing it back to the Principles, on which it was originally founded, whenever it shall be made to swerve from them, We may secure to ourselves, and to our latest Posterity, the Possession of that Liberty, which We have long enjoy’d. What would We more? What other Liberty than This do we seek? And if We seek no other, is not This mark’d out in such Characters as He, that runs, may read? As our Constitution therefore ought to be, what it seldom is, the Rule of Government; so let us make the Conformity, or Repugnacy of Things to this Constitution the Rule, by which We accept them as favourable, or reject them as dangerous to Liberty. They, who talk of Liberty in Britain on any other Principles than Those of the British Constitution, talk impertinently at best, and much Charity is requisite to believe no worse of Them.66
Bolingbroke’s perspective was not unique. During the very last year of the eighteenth century, John Reeves, judge, law writer, legal historian, and political reactionary, was still explaining why the substance of the ancient constitution remained the same even while its premises were constantly changing. Like Bolingbroke, Reeves’s measure of continuity was liberty.
That our Constitution is not precisely the same that it was in the Reign of Ja[mes] I. I am the last man to deny; because it is one of the strongest persuasions I have, about its excellence, that it is capable of, and is continually receiving, improvements, either by the accession of new benefits, or by the attainment of new securities to protect original rights. Many of these have accrued since the time of James I. There was the Petition of Right, which rather secured old Rights than gave new ones; the abolition of the star Chamber was a new benefit; the Habeas Corpus Act was a new benefit; the Bill of Rights was rather a new security to old Rights, except in the circumstance of a protestant King. . . . All these, without enumerating others, were improvements in the Constitution, and nothing can be clearer, than that the Constitution is not now, in all its circumstances, though it is in substance, and in principle, the same that it was heretofore.67
That substance was both immemorial and current. It was immemorial because the constitution always supported liberty against arbitrariness, a task requiring only a few general principles, not a detailed code.68 It was current because the liberty preserved was forever up-to-date.
This notion of immemoriality may not be so easily explained away as Reeves would have thought. It seems to have meant one thing to eighteenth-century lawyers and quite another to twentieth-century historians of ancient constitutionalism. The lawyers may have been largely to blame for any misunderstandings. They may not have expressed themselves as clearly as twentieth-century scholarship expects. In line with their professional training, eighteenth-century lawyers tended to explain their understanding of the ancient constitution in lawyer’s terms, suitable perhaps for addressing other lawyers but containing the seeds of misunderstanding when interpreted from the perspective of another discipline. An example is analogy, a way of reasoning that those who do not use it may not look for when seeking understanding. Because analogy was a common lawyer’s way of reasoning about law, analogies drawn to the ancient constitution deserve our attention. Come now four instances of the technique that, although agreeing in substance, used different analogies to make the same point. The first was argued by the magistrate and novelist Henry Fielding. It was wrong, he contended, to think of “something uniform and permanent, as if the Constitution of England partook rather of the Nature of the Soil than of the Climate, and was as fixed and constant as the former, not as changing and variable as the latter.”69 The second was written by the great Restoration jurist Sir Matthew Hale. He thought the argonauts’ ship an analogy more apt than soil and climate.
So that Use and Custom, and Judicial Decisions and Resolutions, and Acts of Parliament, tho’ not now extant, might introduce some New Laws, and alter some Old, which we now take to be the very Common Law itself. . . . But tho’ those particular Variations and Accessions have happened in the Laws, yet they being only partial and successive, we may with just Reason say, they are the same English Laws now, that they were 600 Years since in the general. As the Argonauts Ship was the same when it returned home, as it was when it went out, tho’ in that long Voyage it had successive Amendments, and scarce came back with any of its former Materials; and as Titius is the same Man he was 40 Years since, tho’ Physicians tell us, That in a Tract of seven Years, the Body has scarce any of the same Material Substance it had before.70
In 1725, the analogy of language occurred to George St. Amand of the Inner Temple:
It may seem an extravagant Position to say, that the present Constitution of our Legislature is built on the same Principles, and has undergone no other Change than what the Alterations of Time have wrought in our Circumstances, made necessary to preserve its Fundamentals; as that in old Germany was, if not from the first planting of that Country, at least from the first accounts we have of it, which are sixteen hundred Years old: but as to this, the Constitution may be compar’d with our Language, the present Dialect being so widely different from what it was so many Ages since, ’tis scarce credible that it has receiv’d no other Changes but what such a Length of Time necessarily works in all: And yet, whoever will, gradually ascending, read Books of every Age to the oldest of our Saxon Monuments, will not be sensible of the Change. So fares it as to the Constitution in general . . . when the Times and Causes of the several Changes that have happen’d in it, come to be ranged in due Order . . . all appears . . . easy, coherent, and natural.71
The final example is an analogy later repeated and made famous by Blackstone—a building. “[I]f the Foundations, the main Pillars, and Corner Stones of this ancient, noble Building are still standing,” Fortescue-Aland contended, “tho’ it should happen to be fitted up and adorn’d with other Materials now, yet it will bear the Name of the old Fabrick, and properly be accounted the same Identical Building.”72
The evidence to be developed here is that for lawyers of the seventeenth and eighteenth centuries the ancient constitution was not so much the legal substance of the case being argued and defended as it was an argumentative model of what the English and British constitution in fact was. They used the ancient constitution not to prove something concerning history, but to strengthen the vision they were promoting of current liberty and civil rights. The law they taught was not law locked in a changeless time but immemorial law constantly re-affirmed both by usage and by redefinition.
The last point may be illustrated by considering the arguments of two English barristers who wrote during the period of the American Revolution. Referring to the Saxons as “the persons who formed the embryo of our constitution,”73 Edward King of Lincoln’s Inn summed up the subsequent history of the Saxon constitution as a history of changes that were, from the perspective of liberty, “improvements.”
When I say this, however, I mean not to reflect on times past; as if a tolerable form of government never prevailed ’till these our days: nor to insinuate that the present constitution is so totally different from what was heretofore established, as to be quite void of any support from precedent and prescription. I am persuaded, on the contrary, that the ancient constitution during different periods was such as we may reasonably suppose to have been most fit and expedient for the nation at those times; and also such, that it is an easy matter to shew how the present form of government regularly, lawfully, and even necessarily, arose from it.74
It did so “lawfully” because the ancient constitution was a program for liberty, and as the nation progressed to improvements in liberty it was guided by the law of the ancient constitution. Or, as Edward Wynne said two decades later, “Freedom was always of its very essence; but its freedom has been improved.”75
Richard Wooddeson used a somewhat different measure of “progress” than King when he wrote of “advances towards restoring the pristine laws and constitution” of the Anglo-Saxons.76 “[T]he English constitution,” Wooddeson contended, had “immemorially been in substance much the same” as in 1777, when he first lectured students as Oxford’s third Vinerian law professor. Although insisting that the immemorial constitution “remains a venerable fabric, which has well withstood the decays of time, and the ravages of faction,” Wooddeson did not mean that it had been unchanged. “[T]he English constitution has immemorially been in substance much the same, or has at least borne a strong resemblance to the present system,” he explained,77 in part because all changes had been by consent of the people, implied by the acceptance of custom. “[C]hanges are gradually and imperceptibly introduced, which, deriving a sanction from time and universal acquiescence, are matured into fundamental laws, or principles of the constitution. . . . Since history and reason alike teach us, that the finished fabric of a well-ordered constitution is to be the work of succeeding generations, and gradually to be improved by progressive experience.”78
That the Vinerian professor put such stress on a progressive immemorial sameness suggests that the ancient constitution played a larger role in the eighteenth century than has been realized. We might better appreciate that role if our adherence to the canons of the historical method did not make it so difficult for us to take seriously the concept of evolving permanence or to accept the possibility that those who could conceive of a timeless constitution did not have to mean a changeless constitution. Timeless change need not imply changeless time. The notion of adaption within the immemorial ancient constitution does not have to be accepted, but it deserves serious attention as a cue to seventeenth- and eighteenth-century constitutional thought. Changing immemoriality was not the eccentric fantasy of lawyers and law professors such as Wooddeson. The thesis of an ever altering timeless law was articulated by many other people besides barristers in the eighteenth century. Samuel Squire, a bishop of the established church, stated the general understanding when he explained why the ancient constitution could add improvements while remaining unchanged. It was that the ancient constitution had always been a constitution of freedom and that the liberty of the Saxons was the liberty of eighteenth-century Great Britain.
Our ancestors were born free, lived under a free government in their first settlements, brought freedom with them into Britain, and handed it down to us inviolate, at the expence of all that was near and dear to them, their lives and fortunes. . . . Our present constitution cannot so truly be said to have been changed or altered, as improved and perfected by time. Where then was that hereditary indefeasible right of princes; where that omnipotent and uncontroulable power of kings, which men of slavish principles were wont to talk so much of ? Our earliest forefathers knew nothing of it, we feel nothing of it at present.79
USES OF THE ANCIENT CONSTITUTION
The uses of the history of the ancient constitution during the eighteenth century were the uses of forensic history. In addition, ancient-constitution scholarship shared the uses to which most history was put in the eighteenth century. That century was a time when history was used to instruct by example, to instill moral lessons, and to educate the public about government, law, and society.80 Gilbert Stuart, a Scots advocate, used the ancient constitution to teach people about the then extant British constitution of 1768. To make his case, Stuart limited his evidence to the laws of prehistorical Germany and the laws of Anglo-Saxon England. “If,” he explained, “I have made it appear, that the parts which compose our constitution arose more immediately from the forests of Germany, I have answered my intention.”81 John Reeves claimed that the ancient constitution had “written” its own lessons about current constitutional law—lessons of law not history. As proof, Reeves traced legal principles back to what he said were their origins. “I thought this the only true way of obtaining, what is called constitutional knowledge;—It was studying the Constitution in the History which itself had written for our Instruction—its own Acts delivered down to us, in its own language.”82
Instruction for the sake of instruction was seldom enough. Usually the purpose was to get across a practical lesson, such as warning that the norms of the ancient constitution were no longer so well respected as they had been in some known or prehistoric past. Unless the young nobility and gentry “are instructed in what is our Original Constitution,” Francis Gregor argued, “what are the Ancient Rights and Privileges thereof, they can never be able to defend it, as they ought, against those who make it their profest Business to cry it down.”83 Arthur Lee cited more recent history when putting the history-as-warning technique to work for the American whig cause during the prerevolutionary controversy. The plan for the crown to pay salaries to colonial judges, Lee contended, alarmed American whigs more than any other grievance, because “[t]he political history of their parent country had taught them the evils their ancestors had experienced from the conduct of Judges so circumstanced.”84
Another eighteenth-century use of history sometimes emulated by students of the ancient constitution was history-as-pride. In a history of the Gothic constitution, for example, Thomas Rymer surveyed countries such as France and Germany where the ancient constitution once had force and reached the satisfying conclusion that “[i]t is in England onely that the ancient, generous, manly Government of Europe survives, and continues in its original lustre and perfection.”85
The most celebrated practitioners of ancient history during the eighteenth century were the American founding fathers. There is a general consensus that they argued “scientific” history at the Constitutional Convention expecting to uncover neutral principles and universal rules applicable to all nations and all ages to guide the future governance of the United States.86 It is possible that the founding fathers at Philadelphia objectively used the science of history according to the historical method,87 but the conclusion has been too easily assumed. The evidence should be reexamined by asking how the history used at the convention differed from the history of Sir Edward Coke.
There is a second doubt that should be raised. It concerns the assumption that, during the eighteenth century, history and law were related disciplines.88 It is just not true that in colonial America “[t]o study law was to study its history.”89 History was only marginally necessary for a knowledge of law and not at all needed to practice law. It may have been true that to practice constitutional law was to argue forensic history, but that is the type of history historians of the ancient constitution disparage or say is not history. Nor is it correct to think that law led “directly to history,”90 although again it could be claimed that constitutional law led directly to forensic history. The question is not so much how history was used as the nature and methodology of that history. When examined closely it will quite often turn out to involve evidence from the past selected to support an argument rather than an investigation of evidence of the type generally described as “scientific” history. That is, it is forensic history.
Forensic history has been given other names in recent years: “lawyer’s history,” “law-office history,”91 and “magisterial historiography.”92 These terms are contumelious labels fastened by its critics onto the style of historical adjudication practiced by the United States Supreme Court in the 1960s. The implications, however, are too negative and too narrowly confined to the historian’s professional standards, judging as history a use of the past that is not history but advocacy. Forensic history or lawyer’s history could as aptly be termed a form of historical utilitarianism and judged favorably by its adjudicatory aspects rather than unfavorably on its pseudo-historical trappings.
In the eighteenth century the uses of practical or purposeful history were much wider and more scholarly than the lawyer’s history associated with brief writing or the historical adjudications of the Warren court. Its reach was often subtle, and one must look carefully or it can be mistaken for history written to explain the past. Sometimes it appears under the guise of the historical method, as in a 1732 London newspaper:
A Faithful and Judicious History, or, a true Registry of the Actions of Men, and the Springs or probable Occasions which produced them, is of the greatest Use and Service to Mankind; for, it lays before us, not only our Actions, but the Connection of those Actions with our Happiness or Misery, and so is a kind of visible or sensible Morality; it teaches us by Facts, what Philosophers and venerable Sages teach us by Reason, with this Difference, That we see and feel in the One, what we only understand in the Other: We have Sense and Experience for our Guides, which generally conduct us safer to our Journey’s End, than cool and abstract Reason.93
This writer respected history. He wanted, so he said, “Faithful and Judicious History.” But he also wanted history to serve a practical purpose, to enlist in the struggle to prevent analytical rationalism from determining the course of eighteenth-century progress. The purpose should not be confused with John Dickinson’s famous admonition to the Constitutional Convention. “Experience must be our guide. Reason may mislead us.”94 It is not just, as Dickinson would have it, that history may be a safer or more conservative guide than speculation. History should also be the weapon with which the instrumental fends off the analytical.
The distinction to be underlined is utility. The forensic historian, in contrast to the nonforensic historian, searches the past for material applicable to a current issue. The purpose of the advocate, unlike that of the historian, is to use the past for the elucidation of the present, to solve some contemporary problem or, most often, to carry an argument. It is the past put in the service of winning the case at bar.
During the sixteenth, seventeenth, and eighteenth centuries lawyers were not the only persons to put the past to work. It was often called on to support not only law and government but religion as well.95 Indeed, it was the bishop of St. Davids who contended in 1745 that not just history in general but the ancient constitution in particular could legitimately be used to resolve contemporary political disputes.
[T]he history of the civil constitution cannot be too carefully studied, or too minutely enquired into, especially in such a country as ours is, divided into parties, and where each party confidently appeals to the antient constitution of the kingdom for the truth of the opinions it maintains, and pretends to make that the measure of its political principles, by which alone it is ready to stand or fall.—Can it then be deemed an useless and an unnecessary undertaking to describe what this ancient constitution of our kingdom was by the incontestable evidence of history, and to delineate that primitive form of government thro’ all its several branches, which our Anglo-Saxon ancestors first established in this island?96
There were many other pragmatic, political, and constitutional uses to which evidence from the past was put in the seventeenth and eighteenth centuries. It would serve no purpose to delineate them except to note that history was used to propose as well as oppose alterations in the constitution.97 Of more immediate interest for the topic of this essay is the most frequent and most significant use that eighteenth-century lawyers and parliamentarians made of the past: to serve their concept of liberty. The past was used for liberty in two ways: to define not the historical but the current meaning of liberty and to defend the contemporary constitutional right to liberty.
As a general matter, Lord Hervey of Ickworth noted in 1734, when opponents of Robert Walpole complained of “the Loss of Liberty, ” they usually talked “of the Liberty of Old England in Comparison with, or Opposition to That now subsisting in this Country.”98 One of those opponents, viscount Bolingbroke, urged Britons to keep up “the spirit of liberty” by continuing to make that comparison. “Let us justify this Conduct, by persisting in it, and continue to ourselves the peculiar Honour of maintaining the Freedom of our Gothick Institution of Government, when so many other Nations, who enjoyed the same, have lost theirs,” Bolingbroke wrote.99 “I need not descend into more Particulars to shew the perpetuity of free Government in Britain. Few Men, even in this Age, are so shamefully unacquainted with the History of their Country, as to be ignorant of the principal Events and signal Revolutions, which have happened since the Norman Era.”100 After all, Henry Fielding pointed out to the Westminster grand jury, what would the history of England teach but the defense of liberty when that history was itself primarily the story of the English and British people’s struggle “to maintain and preserve to themselves and their Posterity, that very Liberty which we now enjoy.”101
Fielding was saying something we no longer comprehend but which would have been readily understood by British people in the seventeenth and eighteenth centuries. To use history to show that liberty had been fought for and had been defended successfully was to make a constitutional point about the English and British people’s right to liberty. Those ancestors who struggled for liberty against arbitrary power not only had won it for themselves, by their sacrifice they had purchased it for their descendants. That price paid conferred one of the title deeds by which English constitutional theory before the nineteenth century vested individual citizens with “ownership” of liberty. Civil rights were often purchased by blood.102
This concept of the ownership, the possession, the fee-simple to civil rights and to liberty, is essential to understanding the common lawyer’s use of forensic history and the seventeenth and eighteenth century’s recurrent citation of the ancient constitution. Laity as well as lawyers, Irish as well as English, knew that more was involved than respect for antiquity or finding greater wisdom through the survival of the immemorial over the novel.103 It was, rather, a matter of authority: the authority for the common law, the authority for the constitution, the authority for liberty. This perspective of authority is a recurring eighteenth-century emphasis that could easily be overlooked if we do not pay close attention to the words that were used. What may pass as rhetorical flourish in the twentieth century could have been the substance of the argument in the eighteenth. Consider, for example, why viscount Molesworth translated Francis Hotman’s Franco-Gallia. He did so, he explained, to show that during the era of the ancient constitution on the Continent, most of Europe had possessed liberty. By 1711, when he wrote, the people of Great Britain alone enjoyed it. “Therefore,” Molesworth went on, “a sincere Desire of Instructing the only Possessors of True Liberty in the World, what Right they have to that Liberty, of what great a Value it is, what Misery follows the Loss of it, and how easily, if Care be taken in time, it may be preserved, has induced me to Translate and send Abroad this small Treatise.”104 What we in the twentieth century can easily miss is one clause in Molesworth’s statement containing a legal doctrine that ceased to be part of Anglo-American constitutional law in the nineteenth century. He said he was teaching “what Right” the English people had to liberty.
It was the right to current liberty that concerned students of the ancient constitution, not whether the ancient constitution was historical fact or in 1711 still existed just as it had in Gothic Europe. Constitutional law was their discipline of learning, not historiography.
THE AUTHORITY OF THE PAST
We must go back to the basics of an abandoned jurisprudence. It is necessary to be on guard that the nineteenth-century concept of law as the command of the sovereign does not cloud our vision. For most of history English law was not command, but the opposite of command. Law, at least constitutional law, blunted the force of command. Even as late as the age of the American Revolution, the essence of law was that it, law, was “right” as opposed to “power.”105 The theory was of a legality that we have forgotten, and for that reason it would be well to start with the elementary, and the most rudimentary legal principle of ancient constitutionalism was the authority conferred on constitutional law by antiquity. That authority, keep in mind, served liberty primarily by being a restraint on power.
Authority for law was the reason Fortescue-Aland in 1714 still found legal substance in the boast of his ancestor of three generations earlier “that neither the Roman nor Venetian, which are esteem’d very ancient, can claim so great Antiquity as ours.”106 It was also the legal theory behind a challenge from John Wilkes to Samuel Johnson in 1770. Johnson had defended the constitutionality of Wilkes’s expulsion from the House of Commons. “Go back,” Wilkes replied, “to the first establishment of representation; trace the claims of the representative body thro’ the long records of successive parliaments.”107 Wilkes was doing what members of parliament had always done, what Sir Dudley Digges, for example, did when he spoke for the Commons at its crucial conference with the Lords on April 3, 1628. He was commanded by the Commons, Digges said, “to shew unto your Lordships in general: That the Laws of England were grounded on Reason more ancient than Books, consisting much in unwritten Customs; . . . and so ancient, that from the Saxon dayes, notwithstanding the injuries and ruines of times, they have continued in most parts the same.”108
It is true that some appeals to mere antiquity were so extravagant that occasional eighteenth-century critics poked fun at the practice;109 nonetheless we should be impressed with how frequently and intensely appeals were made.110 Even more to the point is the importance that the eighteenth century attached to the mere attribute of being ancient. An example is provided by Francis Gregor’s boast that Fortescue had proved “that the Common Law is the most rational, as well as the most antient in Europe.”111 Today it is difficult to tell if Gregor took greater pride in the common law’s rationality or its antiquity. It may come as a surprise, but most of his contemporaries would have put more stock in antiquity.112
What was the attraction of the past? While answering that question it would be well not to be misled by platitudes such as that of the seventeenth-century constitutionalist Edward Cook suggesting that age made the law “the more venerable, and gave an addition of honour to it,”113 or that of Lord Keeper Finch, who spoke of an English constitution “made Glorious by Antiquity.”114 Nor should we be taken in by the supposition of recent scholars that “history could legitimize certain institutions”115 or that time, experience, and usage were argued to “legitimate” actions.116 That last idea is close to seventeenth- and eighteenth-century constitutional theory. It was, however, custom not history that was the legitimatizing agent. The problem is with the word legitimate. Time did more than make a rule of law legitimate.117 It was time that converted a rule from a standard of conduct into coercive law. As Maurice Shelton charged the Suffolk County grand jury at Bury St. Edmunds in 1726, “After an Use and Practice of our Laws, time out of mind, then they are taken to be the Common Law of England, and not before; nothing but Time immemorial making any thing Part of our Constitution.”118
That charge at Bury St. Edmunds explained the jurisprudential significance of time, of antiquity, and of the law’s appeal to the past. That appeal was not just a mustering of evidence proving what was law. It was one of the processes that vested law with its power to command obedience. Shelton did not exaggerate when he said “nothing but Time immemorial making any thing Part of our constitution,” for he did not mean “Time immemorial” as twentieth-century scholars have assumed but as it was understood at law. Moreover, when he said “nothing but Time” he probably was not saying that custom was the only authority for constitutional law. Most other authorities for constitutional law— the original contract, ownership, sacrifice of ancestors, and sometimes even nature—depended on the same evidence—custom and the passage of time—for proof.
We must not forget the problem of the meaning of legal time or immemoriality in constitutional law, but for the moment we are concerned with the question of authority and why the ancient constitution was almost exclusively a matter of law, seldom of historiography. Of course there were observers in the eighteenth century who brought up the issue of historical dynamics, complaining that constitutionalists defended the “English” constitution not on grounds of fitness or utility, but by the authority of custom alone. “One would suppose,” the Critical Review objected, “they thought it was to be defended on no other principles, than those of its having been established in nearly the same form wherein it now exists, for ages immemorial. A fact which some have with great labour and difficulty endeavoured to render probable; but of which there is much reason to suspect the truth.”119 Even though we in the twentieth century agree with the argument’s historical theory, we should hesitate before embracing its jurisprudential implications, at least for the seventeenth and eighteenth centuries. From the perspective of those times, the Critical Review was not raising neutral objections, but wading in on one side of the current debate about the nature of the constitution—the side of arbitrary power or anti-constitutionalism. The other side—the side that won in seventeenth-century England, lost in the eighteenth century, and then won again in America at Yorktown—located right in the rule of law rather than in the command of the sovereign. And the authority for law was in the past, in the ancient constitution, as George Lawson said when going back to the Saxon kings and to Edward the Confessor’s time to find evidence of authority. “What these power[s] of these [Saxon] Parliaments, and of these Kings were, is the great Question,” he explained. “For that once known, the Constitution will be evident.”120 He did not mean the Confessor’s constitution. He meant the constitution of 1689.
In order to illustrate the ancient constitution as authority for law, our investigation can be limited to one issue: the jurisdiction of the houses of parliament. Francis Hargrave was explaining constitutional authority when he discussed a dispute between the Lords and the Commons over the Lords’s jurisdiction in civil cases. That dispute was settled, Hargrave pointed out, “under the supposition of a primitive and inherent right in the lords, attached to their order by the law and constitution of the kingdom.”121 The controversy had occurred during the reign of Charles II, over a century before Hargrave wrote. John Somers, future lord chancellor of England, was offering a solution to a constitutional crisis of his own time, the 1680s, when he devoted thirteen pages to instances of early Saxon “parliaments” electing kings or deciding the succession to the throne. It was evidence proving a point of constitutional law: “That it hath been the constant opinion of all Ages that the Parliament of England had an unquestionable power to limit, restrain and qualify the Succession as they pleased, and that in all Ages they have put their power in practice.”122
Sir Robert Atkyns, a contemporary of Somers’s who served as a judge on the court of Common Pleas and lord chief baron of the Exchequer court, was explicit when explaining why the House of Commons enjoyed powers and privileges by inherent right and not by grace and grant of the crown. “I shall clearly prove,” he contended, “that these Powers and Priviledges were indeed their ancient Right and Inheritance. Which they cannot be unless that House, or the Commons by their Representative, have been ever from the beginning of the Government a part and member of the Parliament.” He then “proved” the Commons had been part of parliament since the beginning of relevant time by marshaling the selective evidence of forensic history. Lord Coke, for example, was quoted for the evidence that tenants on the ancient demesne had always had a privilege “[n]ot to contribute to the Wages of the Knights of the Shire.”
How the Priviledge must be as Ancient as their Tenure and Service, for their Priviledge comes by reason of their Service, and their Service is known by all to be before the Conquest, in the time of Edward the Confessor, and in the time of the Conquerour. And it is expressly said by this learned and Reverend Judge [Coke], That these Tenants, in the Ancient Demesn[e], claimed this by Prescription; and it could not be so, if the Wages of the Knights of the Shire had begun within the Memory of Man, or of any Record. Therefore it clearly follows, That Knights of the Shire to serve in Parliament, and the paying Wages to them for the Service, has been Time out of Mind, and did not begin 49 H[enry] 3 for that is within Time of memory in a Legal Sence.123
Reading this argument, today’s critics of ancient-constitution history will readily conclude that it is nonsense, unsupported by historical evidence. But Judge Atkyns said he was calling on the evidence of history in a “Legal Sence.” He said nothing of being interested in the evidence of history in a historical sense. Atkyns used the Saxon constitution not to prove a historical point but, as he said, “clearly [to] prove” as a matter of constitutional law in 1689 that the House of Commons possessed its powers and privileges by inherent right, not by royal grant.
Three decades earlier, William Prynne had encountered a similar legal controversy and had enlisted the same constitutional proof—evidence from the ancient constitution—to establish the constitutional authority of the other house of parliament, the Lords.124 The House of Commons had proclaimed itself “the only Supream Judges and Judicature of the Realm, paramount [to] our Kings, Lords, Laws, Liberties, Great Charters, and all other Courts of Justice, having an absolute, arbitrary, unlimited power, to act, vote and determine what they please, without appeal or consult.”125 The Lords, the Commons voted, was not an inherently equal branch of parliament because its members sat “only by Patent, by the Kings will, Tenure or descent; not by the Peoples free Election . . . ; That they represent themselves only not the Commons [the people]; and are the Sons only of Conquest, of Usurpation; (brought in by the Conquerour,) not of Choice and Election.”126
“To this I answer,” Prynne wrote, turning directly to the authority of the ancient constitution, “That our Lords, Dukes, Earls, Barons, Nobles (yea Archbishops, Bishops, Abbots, Priors too who held by Barony) sate antiently in all our General National Councels and Parliamentary Assemblies, many hundreds of years before the Conquest, both in the Britons and Saxons reigns, by right of the Peerage and Tenures, as now they doe.”127 It was a matter of right established by law, and law in this case was found in the custom of the realm. Public officials, be they “Kings, Magistrates, Judges, Ministers, Peers, or Members of Parliament,” need not be elected if they hold their positions by other valid customary procedures; procedures that vested their offices with “a general implicit or tacit consent.” This constitutional principle is “especially” valid “when the antient Laws of the Land, continuing still in full force, and the custom of the Kingdom time out of mind, requires no such ceremonie of the peoples particular election or call.”128 In England “the antient Laws, Statutes, and Customs of the Kingdom conferred jurisdiction on the Lords differently than on the representatives of the common people. The Lords enjoyed parliamentary privileges “without any election of the people, ” but members of the Commons were elected. If, however, custom had been otherwise, and the king from time out of mind had appointed the knights and burgesses to parliament, then they would sit in the Commons constitutionally by royal pleasure and they would not need to be elected, because crown appointment would be “a Law and usage” sanctioned by the consent of popular acquiescence.129
That the Commons’s tenure by election was from time out of mind, that is immemorial, did not mean it was so ancient it had no known origin. The Lords’s jurisdiction rested on that degree of immemorality, not that of the House of Commons. Its beginning could be traced to the reign of Henry III. The ancient constitution stretched back only as far as relevant time.
By, and in the very primitive constitution of our English Parliaments, for many hundred years together there were no Knights nor Burgesses at all, but only the King and his Nobles: after which, when elected Knights gestes were first sent to Parliament about 49 H. 3 it was granted by the Kings grace, and unanimously agreed by the kingdoms, peoples general consents, that our Parliaments should alwayes be constituted and made up, not by Knights and Burgesses only, . . . but likewise of the King . . . and of the Lords . . . who ought of right to sit, vote, make Laws, and give Judgement in Parliament by vertue of their Peerage, Baronies, Offices, without any election of the people.130
The Commons’s jurisdiction came from royal command, popular consent, and usage unbroken for the duration of relevant time out of mind. The authority of this jurisdiction vested the Commons with constitutional security from interference by the king,131 but did not vest it with superiority over the Lords, whose constitutional tenure ran to even more anciently relevant time. As there had never been a time when the Lords were not part of parliament, their right was of greater immemoriality. They held by immemorial custom and by consent that was at least implied if not expressed. “This right of theirs is confirmed by prescription and custom, from the very first beginning of Parliaments in this kingdom till this present, there being no president to be found in History or Record of any Parliament held in this Island since it was a kingdom, without the King . . . or without Lords and Peers. ”132 The legal conclusion was not that the Lords had a higher, more constitutional jurisdiction than the Commons, but that if the Commons had a right to sit in parliament, the Lords could not be denied co-jurisdiction, as the legal authority upon which their right depended, though no greater than that of the Commons, was more constitutionally demonstrable:
Their sitting, voting, judging therefore in Great Councils, Parliaments, being so antient, clear and unquestionable ever since their first beginnings til[l] now; and the sitting of Knights, Citizens, Burgesses by the peoples election, in our antientest Great Councils, Parliaments, not so clearly evident by History or Records as theirs: we must needs acknowledge, subscribe to this their Right and Title; or else deny the Knights, Citizens, Burgesses rights to sit, vote in our Great Councils, Parliaments, rather than theirs, who have not so antient nor clear a Title or right as they by many hundreds of years.133
Summarizing the authority for the Lords’s jurisdiction (and not the extent of that jurisdiction), Prynne cited four sources, one of which most interestingly was the consent of all previous Houses of Commons.
This Right and Privilege of theirs is vested legally in them by the very Common Law and Custom of the Realm, which binds all men; By the unanimous consent of all our Ancestors, and all the Commons of England from age to age assembled in Parliament, since they sat in any Parliaments; who alwaies consented to, desired, and never opposed the Lords sitting, voting, power or Judicature in Parliament; and by Magna Charta.134
The legal doctrine must be obvious. Although the past in the form of constitutional custom was researched for proof of the source of law and as evidence of law, it was primarily cited as authority for law. Custom, which was not history, was the authority making law binding on government as well as upon subjects. It still was considered law’s authority by Allan Ramsay as late as the age of the American Revolution,135 when he questioned the “power” of parliament to have promulgated the Septennial Act of 1716, destroying “the annual elective power of the people.”
[T]his annual elective power, the first principle of our constitution, is a right of inheritance, which was brought into England by our Saxon forefathers, at the first establishment of the Saxon mode of government, in this island; and which the people, hold by the ancient, common law of the land. And which they had enjoyed, from generation to generation, for twelve-hundred years, before the reign of William the third. And therefore this elective power of the people, may be truly called, their constitutional right of inheritance. An inheritance that can no more be taken from them, or restrained, justly, than any estate, in land, can be taken from the right owner.136
Think of the implications of Ramsay’s thesis: writing in London in 1771 he was arguing that the ancient constitution was a higher authority than command of the sovereign parliament.
THE THEORY OF THE PAST
It is necessary to be precise. We are discussing law, not history, and the issue is why the authority of law to command obedience could be established by appealing to the past. It is not quite accurate to say that English law, “being customary, relied for authority on the presumption of its own continuity.”137 It was not continuity but consent that vested authority, and the legal doctrine dominating seventeenth-and eighteenth-century customary law was not presumption but prescription. “Every Priviledge is by Prescription,” Judge Robert Atkyns stated in 1689. “[I]t is held, That a man cannot prescribe to an Incident or Appendant, nor indeed to any Power or Authority where the Principal Thing hath not had a perpetual continuance.” Atkyns overstated the principle, however, when he added, “[W]here the beginning of a thing is known, there can be nothing belonging to it by Prescription.”138 Time and unchallenged exercise of the right or the property prescribed were necessary to prove prescription, not immemoriality alone. Edmund Burke was closer to the mark when he wrote, “Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government.”139
The doctrine of prescription told people that they owned a privilege or had, by time, acquired a right. The doctrine of consent was different. It had more to do with explaining why time vested a rule of conduct with the coercive force of law. With legislation, consent was established by direct vote or representation. With custom, the proof of consent was time. Consent to law, Oxford’s Vinerian law professor Richard Wooddeson told his students in the 1770s, could be proved by “long and uniform custom [which] bestows a sanction, as evidence of universal approbation and acquiescence.”140
The theory of consent played two roles in seventeenth- and eighteenth-century constitutional law. First, it reenforced the individual citizen’s civil and property rights by adding a theoretical justification for the rule of prescription.141 Second, it strengthened public liberty by providing a popular basis for the privileges the British government possessed and, by implication, restraining its power, including the power of parliament to promulgate coercive legislation.
However the historical fact may be of a social contract, government ought to be, and is generally considered as founded on consent, tacit or express, on a real, or quasi, compact. This theory is a material basis of political rights; and as a theoretical point is not difficult to be maintained. For what gives any legislature a right to act, where no express consent can be shewn? what, but immemorial usage? and what is the intrinsic force of immemorial usage, in establishing this fundamental or any other law, but that it is evidence of common acquiescence and consent? Not that such consent is subsequently revocable, at the will even of all the subjects of the state, for that would be making a part of the community equal in power to the whole originally, and superior to the rulers thereof after their establishment.142
If we say that the implied consent of custom, not history, vested unwritten law with its authority, we must not forget that custom was also law. “General customs, which are the universal rule of the whole kingdom,” John Adams observed in 1773, “form the common law in its stricter and more usual signification.” A striking instance of the doctrine was England’s “four superior courts of record, the chancery, the king’s bench, the common pleas, and the exchequer.” Their authority to bind individuals to judgment had not been promulgated “in any written statute or ordinance” but depended “merely upon immemorial usage, that is, upon common law,” for its support.143
We should be especially impressed by what John Adams said about the binding force of custom when we consider that the issue he was discussing was judicial tenure. The rule that custom was law that had to be obeyed restrained him from arguing for the constitutional principle we know he favored. As an American whig, Adams wanted judges independent of the royal prerogative, serving securely for life at good behavior. Colonial judges, however, did not have tenure for life, and the reason was not just royal charter or gubernatorial instructions, but that immemorial English custom ordained that they serve at pleasure. “[T]he office of chancellor of England,” Adams quoted an English barrister arguing in a common law court, “could not be granted to any one for life. And why? Because it never was so granted. Custom and nothing else prevails, and governs in all those cases. ” Adams had to agree. “[C]ustom was the criterion, and that alone,” he admitted. “So that, if the king should constitute a baron of the exchequer during pleasure, he would have an estate for life in his office, or the grant would be void. Why? Because the custom had so settled it. If the king should constitute a judge of the king’s bench, or common bench [Common Pleas], during good behavior, he would have only an estate at the will of the grantor. Why? Because the custom hath determined it so. And that custom could not be annulled or altered but by act of parliament.”144
The certainty that custom gave to nonstatutory constitutional law in the seventeenth and eighteenth centuries is further illustrated by a quotation Adams dismissed; a quotation he might have cited to argue that judges should have life tenure. “If,” another barrister had told an English court, “any judicial or ministerial office be granted to any man to hold, so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehavior.” Adams agreed only if the granted position was “an office that by custom, that is, immemorial usage, or common law, . . . or by an express act of parliament, . . . has been granted in that manner, but not otherwise.”145 Here in stark outline was the basic constitutional function of custom as authority. It did not purport this or that form of government so much as government by the rule of law or law that was a restraint on arbitrary power. It was a barrier against the will and pleasure of governmental capriciousness. In English and British constitutionalism it was primarily a barrier against the will and pleasure of the crown. Much as an American whig might wish that high-court judges served at life tenure, that tenure, to be constitutional, would have had to have been based on custom or colonial statute; it could not be ordained by the discretion of the royal prerogative.
It will not do to make much of a prerogative threat in the eighteenth century. Few voices were then raised on behalf of royal sovereignty over law, and although almost every constitutionalist who wrote of the dangers of arbitrary government wrote that the danger was prerogativism, it is impossible to tell how many believed that threat was real.146 The jurisprudents of custom may have used the crown as their straw man, but their true fear was unrestrained power and their objective was preservation of the rule of law.147 Still, they make it seem that the king was the threat, and one reason, as indicated by John Shute Barrington, a barrister of the Inner Temple and first viscount Barrington, was the legacy of the ancient constitution which had originally been designed to keep royal power in its place.
All that we learn of our Saxon Ancestors from History, is, that, before their Coming here, Things of great Consequence were determin’d by all the Freemen, and the lesser by the principal Persons; and when upon their Coming here, they had such a standing Officer as a King, his Power was so limited, that he could do nothing without the Consent of the one or the other . . . ; and the greatest of the Saxon Kings acknowledge[d], that they owe[d] their Crown to the Election of the Nobles and People.148
Barrington was putting the ancient constitution to its most basic eighteenth-century use—to craft the bulwarks of constitutional restraint. The chairman of the Suffolk County quarter sessions was also thinking of restraint when he recounted to the grand jury instances from the history of the ancient Britons as well as the Saxons demonstrating that government power had anciently been limited. The same limitations, he was saying, held in 1726.149 Thirteen years later, William Petyt’s Jus Parliamentarium was published by an editor hoping to spread the word of restraint and ancient constitutionalism. Petyt, he explained, possessed an
uncommon Penetration into the Knowledge of our ancient Records and legal Antiquities; more particularly those which give a true Idea of the Frame and Constitution of this limited Monarchy: A Government which consists in the Execution of Laws dictated by Reason and Experience, and receiving their binding Force from the Consent of the People governed; not flowing from, or depending upon the misinformed Judgment, or capricious Will of One, or a few.150
Whether or not he thought he was publishing a study of history, Petyt’s editor certainly thought he was publishing a study of constitutional authority.
In the hands of some lawyers the jurisprudence of constitutional custom was a theory of authority that not only checked power, it never served power. Custom was authority for liberty only, it was not authority for arbitrariness or even, perhaps, for ordinary government power. William Jones, fellow of University College, Oxford, and later a judge of the high court at Calcutta, explained the theory in 1768. “In questions of private right, precedents are law,” Jones contended. “But in questions that regard the Constitution, they lose a principal part of their force, what has been, is by no means to be considered as the invariable rule for what should be. ”151
In many cases, rights at first imperfect and infirm acquire strength from age, they are confirmed by the exercise of them; but it is not so with the powers of government; they derive their force from their intrinsic merit alone; originally bad, no prescription, no usage, however inveterate, can protect them. The rights of the individual, of the church, of the crown may have their respective limitations, but against those of the Constitution “no time can run.”152
“Respect for the sentiments of our ancestors,” Jones argued, should be a criterion for “maintaining the original rights of mankind,” it should not be “employed in confirming the usurpations against them.”153 Or, as James Burgh contended, the past could not be authority for rules of arbitrary power. “The longer grievances have continued, the more reason for redressing them.”154
Jones’s jurisprudence was extremist and, although commanding some respect among constitutional theorists, was devoid of practical application. It is revealing for our purposes, however, for it illustrates one of the salient aspects of eighteenth-century ancient constitutionalism: its usefulness to opponents of arbitrary power.
Due perhaps to our emphasis on the historical method rather than on common law argumentation, the ancient constitution’s role in combating medieval arbitrariness—and, of course, as a defense of liberty as liberty was defined in the seventeenth and eighteenth centuries— has not always been credited by recent scholars. The ancient constitution, it was suggested in 1965, “was supposed to be immemorial, and its merit consisted in the antiquity of its usage rather than in any rationalization of its principles.”155 Seventeenth- and eighteenth-century constitutional jurisprudes would have been puzzled by that statement. They would have agreed, of course, that the reasonableness of the ancient constitution was not in the principles it contained. Its rationalization or reasonableness was in the authority that the ancient constitution bestowed on principles which the party utilizing and citing the ancient constitution was defending or espousing. The “merit” of the ancient constitution was not in the antiquity of its usage but in the degree of security from governmental whim and caprice that antiquity provided current, existing civil rights. We would be unwise to underestimate the significance of security. In the customary jurisprudence of an unwritten constitution there is no element more essential to liberty than security against arbitrariness.
But what was the concept of arbitrariness in the seventeenth and eighteenth centuries? To understand the answer to that question it is necessary to rid ourselves of twentieth-century thoughts about arbitrariness having something to do with despotism, tyranny, or cruel government. It may today, but that was not the legal definition in the eighteenth century. Then it was not the harshness of power, the brutality of power, or the certainty of the exercise of power that made government arbitrary. It was, rather, the possession of power unchecked.156 Tyrannical power was abuse of power; arbitrary power was power without restraint.
In eighteenth-century parlance, arbitrary was the difference between liberty and slavery, right and power, constitutional and unconstitutional. To the eighteenth-century legal mind, knowing what was arbitrary delineated the concept of the rule of law. “For it is certain,” Jared Eliot reminded Connecticut’s lawmakers in 1738, “That to the Constitution of every Government, Absolute Sovereignty must lodge somewhere. So that according to this Maxim, Every Government must be Arbitrary and Despotick. The difference seems to be here; Arbitrary Despotick Government, is, When this Sovereign Power is directed by the Passions, Ignorance & Lust of them that Rule. And a Legal Government, is, When this Arbitrary & Sovereign Power puts it self under Restraints, and lays it self under Limitations.”157 It was, viscount Bolingbroke agreed, a matter of power and not of the type and structure of government. Whether power was vested in a single monarch, in “the principal Persons of the Community, or in the whole Body of the People, ” was immaterial. What matters is whether power is without control. “Such Governments are Governments of arbitrary Will, ” he concluded.158
Just as the eighteenth-century concept of arbitrariness should not be confused with cruelness or terror, for it could be benevolent, mild, and materially beneficial, so it should not be confounded with absoluteness. “[E]ven absolute Power, ” John Locke pointed out, “where it is necessary, is not Arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some Cases to be absolute,” such as martial discipline which vests an army officer with power to order a trooper to die but cannot “command that Soldier to give him one penny of his Money.”159 Law was the distinction. If the officer acted within the parameters of law, his absolute orders were not arbitrary. That element—law—was all-important to eighteenth-century constitutional thought. For “court whigs,” Reed Browning has pointed out—and also, it should be added, for most other educated Britons and Americans—there were “but two types of government: arbitrary and lawful,”160 or as John Arbuthnot explained in 1733, “what is not legal is arbitrary.”161
Law is one of three legal concepts by which the eighteenth century measured arbitrariness. The other two were liberty and constitutionalism. Arbitrary power was the antithesis of liberty and the opposite of constitutionalism.162 These points and counterpoints were concisely summarized by George Campbell, preaching in Aberdeen, Scotland, on the fast day commemorating the American rebellion.
[W]hen men are governed by established laws which they know, or may know, if they will, and are not liable to be punished by their governors, unless when they transgress those laws, we say they are under a legal government. When the contrary takes place, and men are liable to be harrassed at the pleasure of their superiors, tho’ guilty of no transgression of a known rule, we say properly they are under arbitrary power. These are the only distinctions I know between free and slavish, legal and arbitrary, as applied to governments.163
Or, as Connecticut’s Jared Eliot added, a government under the restraint of law “is what we call a Legal Limited & well Constituted Government. Under such a Government only there is true Liberty.” 164
Arbitrariness and people’s fear of arbitrary power were why the ancient constitution and immemorial law were tools of constitutional advocacy during the seventeenth and eighteenth centuries. The authority of custom was then the most viable alternative to rule by the will and pleasure of sovereign command. Immemorial law was not argued to block judicial judgments or (except in rare instances such as by American whigs during the prerevolutionary controversy) to restrict parliamentary legislation. The ancient constitution was a standard of reference for seventeenth-century antiprerogativists and for eighteenth-century constitutionalists opposed to arbitrary power. They argued the evidence of ancient constitutionalism when seeking either to prove the authority of a legal principle or to preserve liberty’s security through the rule of law.165 What seventeenth- and eighteenth-century constitutionalists sought from the ancient-constitution advocacy and the concept of immemoriality was the security of governance by law.
THE AUTHORITY OF CONSENT
It has recently been suggested that “the attraction which the concept of the ancient constitution possessed for lawyers and parliamentarians probably resided less in whatever ultimate principle provided its base, than in its value as a purely negative argument.” The explanation is that “a truly immemorial constitution could not be subject to a sovereign: since a king could not be known to have founded it originally, the king now reigning could not claim to revoke rights rooted in some ancestor’s will.”166 That theory was the essence of seventeenth-century constitutionalism, and at that time the “argument” was not thought negative. It was, rather, positive constitutional doctrine as likely to create and define rights as to defend them or maintain the status quo.
A seventeenth- and eighteenth-century constitutionalist usually did not argue immemorial law negatively by saying, for example, that the crown was forbidden to command some result, such as to abolish jury trial, because jury trial was immemorial and had never been ordained by the will and decision of a known sovereign, a predecessor of the present king. That seventeenth- or eighteenth-century constitutionalist would have been more likely to argue that the people had a right to trial by jury because it had existed by immemorial custom from time out of mind. The right to trial by jury, like any other right attributed to the ancient constitution, was positive, it was real, material, tactile, concrete, and existed independently of creation, will, or pleasure. Law was thought of and spoken of as a separate entity, the conceptualization of the abstract into the tangible in a way that we no longer comprehend. When Sir Edward Coke said that “no man ought to be wiser than the law,”167 he was thinking of an autonomous reality that humans could manipulate but was altered only by internal evolution.
We cannot say that the autonomy of law was a concept believed in by those who espoused it. At worst its validity had to be accepted, because the concept of an autonomous law was essential for constitutional government as constitutionalism was then conceived. The law, which was the seventeenth and eighteenth centuries’ custodian of civil rights, had to be independent of sovereign command or liberty would have been no more secure than any ordinary revocable grant.
“Are not the Liberties of the People settled upon as sure a Foundation from the Concessions of our Princes?” an anonymous writer asked in 1734. “Are they not indeed upon a surer Foundation than Original Contract; since these Concessions are to be seen, and the Original Contract not to be seen?”168 For constitutionalists of customary restraints the answer was unreservedly “no.” Rights that were grants rather than entrenched in timeless custom were rights without security, the same as being not rights at all. Liberty depended on the supremacy of law over power. “[I]f ever you set the King above Laws,” the grand jury of Chester was instructed during the 1690s, “then it must necessarily follow, that the King derives his Title to the Crown of England not from the Laws of England, but from something else.”169 That something else was what seventeenth- and eighteenth-century constitutionalists could not concede, or there would have been no English constitutionalism. Not only did individual rights have to come from “law” rather than the king’s grace, so did the king. For students of the ancient constitution the legal formula had to be “That the Law makes the King. ” That was how in 1694 William Atwood, sometime chief justice of New York, stated what was probably the most fundamental legal doctrine for seventeenth-century constitutionalists.170 “The Office of the King,” Samuel Johnson added that same year, “depends wholly upon the Law both in its making and in its being.”171 “This High Office and Dominion was given him by Law, and all his Powers which are very Great, and give him an Opportunity of doing a world of Good, are all stated by Law; for else how should we know they are his? and they are butted and bounded by Law, or else they might be pretended to be Infinite. We find it thus in the first Constitution of this Monarchy.”172
The law that made the king was the ancient constitutional autonomous law, not the legislation of parliament, for, although parliament could alter, amend, and reorganize that law, it, like the king, was the product of the same law and received its authority from that law. Just as the king was king because the law of the ancient constitution made him king, so parliament was parliament due to the same law.173 The concept of sovereign, demiurgic law was explained in 1610 by Thomas Hedley, long before there were notions of either parliamentary supremacy over the king or parliamentary sovereignty over the law.
But then you will say, the parliament, which is nothing else in effect but the mutual consent of the king and people, is that which gives matter and form and all complements to the common law. No, nor that neither, for the parliament hath his power and authority from the common law, and not the common law from the parliament. And therefore the common law is of more force and strength than the parliament. . . . But from logic to law, the king by his prerogative may dispense with a statute law, so he cannot with the common law. Also, the common law doth bind, and lead or direct the descent and right of the crown. But whether a statute law may do so or no, it hath been doubted. But you will say the parliament hath often altered and corrected the common law in divers points and may, if it will, utterly abrogate it, and establish a new law, therefore more eminent. I answer set a dwarf on a tall man’s shoulders, and the dwarf may see farther than the tall man, yet that proves him not to be of a better stature than the other. The parliament may find some defects in the common law and amend them (for what is perfect under the sun), yet the wisest parliament that ever was could never have made such an excellent law as the common law is. But that the parliament may abrogate the whole law, I deny, for that were includedly to take away the power of the parliament itself, which power it hath by the common law.174
It will be said that Hedley’s theory of sovereign law was superannuated by the time of the American Revolution, which occurred eight decades after the Glorious Revolution when parliament did what he said it could not do, change the descent and right of the crown. But, in fact, the Glorious Revolution changed perceptions about autonomous law much less than has been assumed. How else do we explain the shocked reactions of so many contemporaries to Blackstone’s discovery that by the 1760s parliament had become omnipotent? If Blackstone was right, the earl of Abingdon protested, the ancient constitution was a dead letter and to “that arbitrary Power, against the Introduction of which, separately, we have been contending from the Saxon Era to the Era of George III, conjunctively, we must now submit; though attended, in this Form, by a State of Slavery, tenfold more oppressive, than any other Form could possibly inflict.”175Slavery was also the word that American whigs used when they discovered that parliament and not the “law” was to be their rule.176
Except for arbitrary there was no word that practitioners of ancient-constitution jurisprudence put to such frequent use as slavery. Slavery and its opposite concept, liberty, need close scrutiny for they reveal much about why we should not be thinking of history and historiography; they tell why the legal concept of custom, not the historical method, was what guided the selective research and the selective polemics of ancient constitutionalists. In the seventeenth and eighteenth centuries forensic historians used the ancient constitution for three purposes: proof of authority, establishment of consent, and avoidance of slavery. If we were to sum these up in one concept it would be said that the object of seventeenth- and eighteenth-century ancient constitutional advocacy was to preserve the contemporary version of liberty through the rule of law.
This is not the place to discuss the theory of legal and constitutional custom. The concept of custom should not be treated as it is treated here, as a side aspect of ancient-constitution jurisprudence. It was, in fact, more important to the development of Anglo-American liberty than was the ancient constitution, and deserves a separate symposium. The best we can do, if we must treat custom briefly, is to object to those historians of the ancient constitution who insist that the “philosophy of custom” was “a view of institutions as based purely upon immemorial usage and experience, with no conscious beginnings and nothing more to justify an institution than the presumption that, being immemorial, it must on innumerable occasions have proved satisfactory.”177 We must resist arguments that confound historical “immemorial” with legal “immemorial.”178 Legal custom was less a presumption of satisfaction with institutions that had no beginnings and was more like Sir Matthew Hale’s argonauts’ ship, a constant flow of change, a process of preservation rather than experimentation, of securing liberty through reinvigoration of the rule of law.179
The concept of custom should also be kept in mind when considering the ramifications of the authority of the past. The principle that concerns us is the authority for law not the authority of history. History in the seventeenth and eighteenth centuries did not bestow coercive authority, although practitioners of forensic history sometimes assumed that it did. If we wish to be exact, we should associate authority or “power”180 with custom rather than history. Custom was one of law’s authorities.
Custom was almost as important to existing law for consent implied as for authority conferred. Immemorial usage was “evidence of common acquiescence and consent,” Vinerian law professor Wooddeson emphasized. “Laws ratified by custom, are generally the most ancient, and esteemed highly sacred, having been approved by the experience of ages.”181 Judge Atkyns explained the doctrine of implied consent by invoking a remarkable instance of the timeless concept of law, one that was repeated so often we must assume that it made sense to common lawyers of the late seventeenth century. “We our selves of the present Age,” he wrote, “chose our Common Law, and consented to the most ancient Acts of Parliament, for we lived in our Ancestors a 1000 Years ago, and those Ancestors are still living in us.”182 Before protesting this idea, reflect that Atkyns was speaking of legal consent, not of a physical fact. You may say he was employing a legal fiction, but you would be wrong. As was said in 1769 of the “ancient and approved laws ” of “the British, Roman, Danish, Saxon and Norman times,” “if they had not been liked by these people, they would have been altered.”183 The consent is implied or constructive, not actual and direct.
The principle of implied consent was not intended to strengthen the authority of law qua custom by giving it a popular base, but to strengthen customary law or ancient constitutionalism against the onslaughts of other types of law such as prerogative law, Star Chamber law, or civil law. The argument that common law and custom were laws popularly consented to would later anger Thomas Jefferson and Jeremy Bentham, but in the seventeenth and eighteenth centuries it was a contention that reenforced the jurisprudential pretensions of constitutionalism and customary liberty.
Resistance to prerogative law, however, was not the chief jurisprudential function performed in the seventeenth and eighteenth centuries by the concept of an autonomous law based on the authority of custom and popular consent implied from acquiescence in the ancient constitution. Its prime function, rather, was to fend off law by will and pleasure, whether that law was based on paternalism, nationalism, divine right, reason, efficiency, or nature. This was a losing battle, of course, at least after about 1740 because the law that it opposed was the law that had the future before it, the law that would dominate the nineteenth century in the form of parliamentary sovereignty. The contest as seen in the seventeenth century was summed up by William Prynne when he boasted that one of his forensic-history books concerned “My Antiquity triumphing over Novelty. ”184 It was a telling forensic strategy. A proponent of customary constitutionalism could oppose any constitutional innovation or reform by insisting that constitutional custom was grounded on something more secure than political choice, on, for example, as Edmund Burke insisted when opposing extension of parliamentary representation, “the peculiar circumstances . . . and . . . habitudes of the people.”185
As long as you had no quarrel with the status quo, customary constitutionalism provided a higher sense of security and, therefore, a more certain degree of secured liberty, than did prerogative, parliamentary, or democratic discretion. The artificial reason of immemorial custom was perceived as safer, certainly less risky, than the analytical or natural reason of even the wisest men.186 Philosophical reason could not make better law according to ancient constitutionalists as they knew that the best law came from timeless change through centuries of experience, popular consent, and uncountable judicial and human decisions.187 American whigs believed that they well knew the difference for they had experienced it. They had wanted to remain in the British Empire governed by the customary ways of the eighteenth-century imperial constitution. They had watched from afar as the logic of sovereignty persuaded the ruling faction in Great Britain that despite tradition, experience, and a hundred and fifty years of constitutional custom, parliament had both the right and the power to legislate directly for the colonies. American whigs resorted to civil war rather than risk the constitutional insecurity of a law of absolute legislative command that would brook no restraints from the ancient constitution.188
The threat of sovereign discretion was not an American fear alone in the last half of the eighteenth century. A surprisingly large number of people in the mother country were apprehensive that the old safety of customary liberty was fast losing ground to the capricious rationality of law by legislative command. The bishop of Worcester was concerned enough in 1760 to warn that any enquiry about the British constitution was “a question of fact; that must be tried by authorities and precedents only; and decided at last by the evidence of historical testimony, not by the conclusions of philosophy or political speculation.”189 That was the traditional theory of constitutionalism, the old methodology that William Dowdeswell outlined when he argued that even the House of Commons, if acting as a court of judicature, did not have the legal right to be arbitrary. It should, rather, be controlled by taught, nondiscretionary, common law standards of decision, the most important of which was usage.
When this usage is collected from antient, uniform, and uninterrupted practice of Parliament, we have the custom of Parliament; and that custom is the law of Parliament.
These restraints therefore do not stand solely on the decision of the House, or the judgment of a court having competent jurisdiction in the case: they are much better founded in the previous usage, and the repeated acquiescence of those who are affected by them. They are also similar to the like restraints at common-law, except in those very few instances in which the clear undisputed usage of Parliament, not deduced from one, but established by many precedents and the general tenor of parliamentary proceedings, may have, for very good reasons not adopted, the practice of other courts. So that an incapacity at common-law to be elected into the House of Commons stands in need of the following conditions. It must be similar to the like incapacity established and declared at common-law in similar cases; it must not be repugnant to common-sense; nor contradicted by the usage of Parliament.190
There was, of course, a more basic principle at stake than common law methodology. Eighteenth-century constitutionalists clung to the old constitutionalism of rights buttressed by appeal to the past rather than the new constitutionalism of rights established by appeal to abstract principles because they did not want to lose governance by the rule of law. As late as 1823 the polemicist who is remembered as the “dean of the radical reformers”191 demonstrated how comfortably and effortlessly eighteenth-century radicalism had been able to assume a guise of antiquity as he urged Britain to return to the old constitutionalism that by then existed only in the United States. What the old breed of constitutionalists had been opposed to, John Cartwright explained, was “a Constitution which can be twisted and moulded into any form, to agree exactly with the whims, the caprices, and the despotic views of the Ministers for the time being.”192 In other words, the old breed of constitutionalists—which included the ancient constitutionalists—had been opposed to the constitutionalism that would become the rule of the British constitution of the nineteenth and twentieth centuries.
ADVOCACY OF THE PAST
There have been two main arguments made up to this point. First, the ancient constitution was not primarily an institutional framework for a broad model of government such as mixed monarchy. It was a defense of governance by the rule of law. Second, the purpose of the ancient constitution was advocacy, not history.193 The next question is whether practitioners of ancient-constitution advocacy in the seventeenth and eighteenth centuries intended to argue forensic history rather than impartially to investigate the past. The evidence leaves little doubt that they understood they were pleading a constitutional cause.
Our evidence starts with the generation after Coke and Selden, which means that it starts with Nathaniel Bacon. Puritan, zealous parliamentarian, and member of the Long Parliament for Cambridge University, Bacon made no bones about the cause for which he was writing: “A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects, as Successor to the Norman Conquerour, (so called) first occasioned this Discourse,” he explained in the “advertisement” of his first “history.” With that purpose, he had “necessarily fall’n upon the Antiquity and Uniformity of the Government of this Nation. ”194 Bacon included an appendix in another book entitled “A Vindication of the ancient way of Parliaments in England.” He wrote it, he explained, “because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative powers; and others, even to annul the Right both of Lords and Commons therein, resolving all such power into that one principle of a King, Quicquid libet, licet, so making the breach much wider than at the beginning.”195
Bacon used the forensic history of ancient constitutionalism to question the Stuart concept of monarchy.196 People on the other side of the controversy, not liking what he was doing, took steps against Bacon’s books, as explained by the printer of a fourth edition of his history, published the year after James II was driven into exile by the Glorious Revolution.
This Book at its first Publishing, which was shortly after the Death of King Charles the First, had the ill fortune to be coldly received in the world, by reason of the Circumstances of those times; but after K. Charles the Second was possest of the Crown, and endeavoured to advance the Prerogative beyond its just bounds, the Book began to be much enquired after, and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights, so that in a short time it became very scarce, and was sold at a great rate; this occasion’d the private Reprinting of it in the year 1672, which as soon as the Government perceived, they Prosecuted both the Publisher and the Book so violently, that many hundreds of the Books were seized and burnt; that, and the great want of the Book since occasioned the Reprinting of it (without any Alterations or Omissions) in the year 1682, when the Press was at liberty by reason of the ceasing of the Act for Printing, but the Prerogative then getting above the Law, it met with a new Persecution, and the Publisher was Indicted for the Reprinting of it.197
During the Restoration, Edward Cook anonymously published a book that has in recent years been criticized as bad history. It may have been bad, but it is by no means certain that Cook intended it to be history. Surely his title suggests that it was not history, or, if history, it was, at best, forensic history: Argumentum Anti-Normannicum: or an Argument Proving, from Ancient Histories and Records, that William, Duke of Normandy Made no absolute Conquest of England, by the Sword; in the sense of our Modern Writers.198 The question Cook was disputing, to be discussed below, was the most bitterly argued point of constitutional law during the seventeenth century. Just a few years earlier Peter Heylyn, a Laudian theologian, had enlisted on the other side of that debate, when he stated as the operative doctrine of English constitutional law that “the power of making Laws . . . is properly and legally in the King alone.” And “for the proof thereof,” he claimed, all he had to do was show that William of Normandy had become king of England by conquest following a war in which the Anglo-Saxons who opposed him were defeated. “When the Norman Conqueror first came in, as he wonne the Kingdom by the sword, so did he govern it by his power: His Sword was then the Scepter, and his will the Law. There was no need on his part, of an Act of Parliament; much less of calling all the Estates together, to know of them after what form, and by what Laws they would be governed.”199
The stakes for this history seemed incredibly high for those participating in the debate—the governance of England and of Great Britain. If Heylyn’s “history,” and with it the constitutional law it supported, was to prevail, James Tyrrell warned, “all the Liberties and Priviledges we now enjoy, being at first derived from the Concessions of Kings (and those in great part wrested from them by Force) their successors may, whenever they shall think it conducing to the greater safety of the Kingdom (of which they are to be the sole Judges), resume them.”200 It was that use of forensic history, to prove the constitutionality of royal legislation, that led Sir Robert Atkyns to attack as “Innovating Writers” those “historians” who, by dating the House of Commons from the reign of Henry III, “would destroy Foundations, and remove our Ancient Land-marks, and the Ancient and Just Limits and Boundaries of Power and Authority.”201 It may be indicative of how serious this brand of forensic history could be that Atkyns did not publish until the year after the Glorious Revolution.
William Prynne, whose work as a historian has been questioned by the historiographers of ancient constitutionalism, also spelled out the fact that it was current constitutional liberty that motivated his research. He was, Prynne wrote, explaining and defining rights immutable “against those traiterous late published Pamphlets, which professedly deny it, and endeavour, a totall abrogation of all former Lawes, to set up a New modell and Body of the law, to rule us for the future, according to their pleasures.” Prynne was not objecting to any particular laws but to a way of looking at law, a definition of authority—law as command. He was defending, the title of his book said, “the Good, Old, Fundamentall Liberties, Franchises, Rights Laws, of all English Freemen.”202
During the 1650s, the years of the Long Parliament and Oliver Cromwell, a rival school of jurisprudence had become more vocal, rejecting the good old law and claiming “That to plead for these and other fundamental laws and liberties, as unalterable, (though the only Bulwarks & Badges of our Freedome) is nothing else, but to enslave the Nation. ” What that new legalism could mean, Prynne warned, was that “people do not only lose their Liberty, but are brought under such a kinde of Tyranny, out of which (aS beINg woRSe thaN the egyptIaN boNDage) there is no hope of deliverance.” He was rallying his readers against the new theorists of rational nationalism, including the Levellers, “who,” Prynne asserted, “shall endeavour by force, fraud, or flattery to compell or perswade them, to sell, resign, betray, or give up these their Ancestrall Priviledges, Inheritances, Birthrights to them.”203
To turn back those whom he called enemies of “our Hereditary, fundamentall laws, liberties, rights, franchises, ” which were “their own, and every other English Freemans best inheritance and security, ”204 Prynne adapted the most effective jurisprudential weapon at his command, the ancient constitution. Marshaling his evidence in a totally timeless context,205 he sought the principles of restraint—principles he wanted established as inherent in the constitution of Cromwellian England— by claiming that before the Roman conquest “the British Kings were obliged to governe their subjects justly, and righteously, according to the established Lawes of those times, which secured their Liberties, Properties, Goods, Lives against all violence and arbitrary Tyranny, Rapines, Taxes,”206 and that centuries later, the “English Saxons from the first Settlement of their Kingdomes and Monarchies, had no Soveraign Power at all to make, alter, or repeal Lawes, impose Taxes . . . but onely by common consent in General Parliamentary Councils, much lesse to imprison, condemn, exile, out-law any mans person, or to deprive him of his Life, Lands, Goods, Franchises, against the Law.”207
Government by the rule of law was the dogma of Atkyns, Prynne, and the other seventeenth-century constitutionalists of limitations. That creed was summed up at the end of the first decade of the next century when a writer cast it in terms of grades of supremacy with restraint higher than command—the autonomy of sovereign law over the discretion of prerogative power. “Whenever the Crown,” it was said, “in any Cases, issues any Grants or Commissions contrary to Law, they are void; which shews the Superiority of the Law over the Regal Power. And that Power cannot extend it self in any Instances beyond the Bounds of the Common or Statute-Laws, in which ’tis solely founded.”208 This positioning of autonomous law was not confined to royal command. By implication it applied to all command that in time would come to be identified with the concept of sovereignty in British constitutional law. It expressed a formula from the past, not the rule of the future, yet as long as it remained a viable explanation of British constitutional theory, the forensic history of ancient constitutionalism was a major factor shaping the contours of constitutional debate—which does not mean it had much influence in determining the result.
Throughout the eighteenth century the British constitution was in a remarkable state of contrariety—not a state of transition, it is always in such a state, but a state of polarity. Constitutional theory in Great Britain was torn between competing constitutional doctrines which, without tearing the nation into impotency, existed side by side, each supported by tenable, familiar, aggressive legal theories. Indeed, the eighteenth century can be called an epoch of two constitutions in both Great Britain and the American colonies, with the mother country eventually falling under one constitution and the American states consciously selecting the other. If we wish to summarize the development in two sentences, we might say that the British who opposed the American version of the constitution were “looking ahead,” away from the ancient constitution, to government by consent, to a constitution of parliamentary command, in which government was entrusted with arbitrary power and civil rights were grants from the sovereign. The Americans were “looking backward,” not to government by consent but to government by the rule of law, to a sovereign that did not grant rights but was limited by rights, a sovereign that was, like liberty, created by law, the guardian of liberty. Perhaps they were not looking back to the ancient constitution, but they were looking back to the constitution of Sir Edward Coke, to the constitution that had triumphed over Charles I and James II.
Ranged in opposition to the constitution of supreme, immutable autonomous law in the eighteenth century was a school of legal theorists who, in the seventeenth and eighteenth centuries, were thought of as “anticonstitutionalists.” In more recent time they have been called absolutists, modernists, Filmerians, Bodinians, Austinians, or rationalists. For the moment—that is for most of the eighteenth century— parliamentarians, satisfied with having established supremacy over the crown, had not sensed the potential of sovereignty over law and the extreme ground among the jurisprudes of arbitrary power was held by a small minority of royalists. The constitution they wanted was summed up by the claim that “Parliaments owe their Being to him [the king], but he his own to Birth-Right.”209 This was a theory of constitutional law that could be stated as a straight principle of pragmatic jurisprudence but sometimes was advanced in the dress of history, usually in the form of an attack on ancient constitutionalism. The chief exponent of this school of law in the period covered here was Robert Brady, who wrote several studies of contemporary constitutional theory which he cast in historical contexts.
In the twentieth century Brady has become somewhat of a historian’s folk hero, the lonely prophet of a darker, less enlightened age, who had the vision and the intelligence to be the good historian courageously but in vain exposing the misconceptions and misrepresentations of those bad historians, the ancient constitutionalists. He has been described as “a pioneer in modern historiography,”210 the “most advanced historian of his day,”211 the seventeenth-century scholar who helped expose “the politically disastrous consequences of anachronistic thinking,”212 and who wrote “with a rigorous devotion both to scholarship and the interests of the royalist cause.”213
Probably no one disputes that Brady was a better historian than his opponents, the adherents to ancient constitutionalism. To the extent that he was he probably should also be called a better forensic historian—or a better historian who wrote forensic history—for he was no less an advocate than the ancient constitutionalists, a fact about which he openly boasted. “I have written these Tracts, ” Brady said, explaining the history he published, “to undeceive the People, and to shew them, That really they were not possessed of these Peices [sic] of Soveraignty and Empire antiently, nor of such share in the Government, as these Un-quiet, Tumultuous Men endeavour to make them believe they had, and still ought to have.”214
What separated Brady from the seventeenth- and eighteenth-century lawyers who wrote history, aside from the fact that he wrote to oppose them, was that he had less reason than they to depart from what are today recognized as the canons of historical methodology. In most other respects he was like them. He was writing on one side of the current constitutional controversy, he was a royalist bent on demythifying the ancient constitution,215 and he was just as ready to select and manipulate historical facts as any of the forensic historians whose writings have been more sharply criticized in the twentieth century.216 Indeed Brady made no bones about the forensic and polemical purpose of his “history.” It was the advancement of a constitutional theory that had never been dominant in English constitutionalism, a legal theory that repudiated not just the ancient constitution, but the principle of limited government, the doctrine of mixed monarchy, the rule of law, and the authority of custom.
First, That not only all Government, but particularly Monarchy does owe its immediat[e] Foundation and Constitution to God Almighty.
Secondly, That by the Law of God, Nature and Nations the Crown ought to descend according to Priority of Birth, and Proximity of Blood.
Thirdly, That if an Act of Parliament were obtained to exclude his R. H. [the duke of York, it] would be unjust, unlawful, and ipso facto void, as contrary both to the Law of God and Nature; and the known Fundamental Laws of the Land.217
There was no need to rely on the logic of patriarchy. History going back to Roman times, if cleared of ancient constitutionalism, demonstrated “That all the Liberties and Priviledges the People can pretend to, were the Grants and Concessions of the Kings of this Nation, and were Derived from the Crown.”218 Brady was attempting much more than what a twentieth-century admirer has termed enhancing “the power of the crown by situating it in a context of incessant change.”219 He was less interested in historical dynamics than royal absolutism. Brady’s forensic history was driven by the legal theory that, as Isaac Kramnick suggests, “[n]o omnipotent Parliament and elective Crown could threaten the Stuarts if the claim that the ancient constitution had accorded power to Parliament was erroneous.”220
It may be wondered why Brady’s history has earned such praise from recent historians who have otherwise been so sharply critical of forensic history when practiced by constitutionalists. He was not much honored before this century. His own contemporaries, in both the seventeenth and the eighteenth centuries, had rather strong things to say about both his work and his advocacy. In 1725, George St. Amand referred to Brady as “the very learned Advocate for Slavery,” and three years later, in a charge to the Westminster grand jury, he was called one of the “Advocates for Arbitrary Power.”221 In the year of the battle of Lexington, the Scots lawyer Gilbert Stuart described Brady as “a writer who is known to have disgraced excellent talents, by . . . giving a varnish to tyranny,”222 and even as late as 1796 Francis Hargrave still thought it worthwhile to remind readers that Brady was “arbitrary” and to refer to him as “the learned but bigoted Dr. Brady.”223 These men in the eighteenth century were still fighting the controversy that New York’s future chief justice William Atwood had joined in 1681 when he summed up Brady’s argument by stressing conclusions that today are apparently considered to have been the discoveries of good history, but which Atwood and his contemporaries thought blatant forensic politics.
For according to him [Brady] the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after, ’twas by Usurping upon the Rights of Tenents in Capite, who, and not others, when the new Government was set up, began to be Represented by two Knights for every County, out of their own number, and they at first, that is then, Elected their own Representatives; and yet these Tenents in Capite might be set aside if the King and his Council pleased, nor was any power given to others to chuse till 10 H. 6. c. 2 which gave no new power, and the Lords depend upon the Kings pleasure.224
More than a century after Atwood published this comment John Reeves explained “the Cause of [Atwood’s] warmth.” It was, of course, the constitutional issues that were at stake. Brady’s opponents used the ancient constitution against him because “it would set the Privileges and Pretensions of the Commons upon a higher footing, if they could be proved to be of very remote Antiquity; and that so late a period, as that of Henry III. and Edward I. and the rebellious proceedings that were the immediate Cause of their being summoned to Parliament, gave them a very low origin in point of time, and something very like usurpation in point of Title.”225 The “warmth,” therefore, was caused by a dispute about legislative jurisdiction.226 As Atwood’s contemporary Judge Robert Atkyns pointed out, to accept the evidence that the representatives of the Commons were first called to parliament by Henry III could mean in law that “all the Power and Priviledge the House of Commons claims, is not by Prescription, but that they depend upon the King’s Royal Will and Pleasure, and had their Original by his meer Concession, and not by Ancient Inherent Right, nor Original Constitution, and therefore may be resumed at Pleasure.”227 If not Brady and his friends, at least everyone who supported the Commons said the controversy concerned parliamentary autonomy and that it was purely forensic. “As on Mr. Petyts, and my side,” Atwood wrote, “the design can be no other, than to shew how deeply rooted the Parliamentary Rights are; So the Doctors [Brady’s] in opposition to ours, must be to shew the contrary, (a design worthy of a Member of Parliament) and ’tis a Question whether he yields these Rights to be more than precarious. ”228
It is a wonder how we in the twentieth century have come to think that these controversies were solely concerned with disputes about history. In the seventeenth and eighteenth centuries it was not lawyers alone who knew they turned on other matters than the canons of historiography. Just consider the attitude of a clergyman, Samuel Johnson, commenting on a History by another clergyman, Abednego Seller. “[W]hen I had discover’d of what Stamp the Historian was,” Johnson observed, meaning that Seller was a Jacobite or what Johnson termed “a King James’s Man,” “I needed no great sagacity to understand the Design and Drift of the History. It is this plainly, to thrust out the present Government, by leaving no Room for it, and by telling us that the late Tyranny was Sacred and Irresistible.”229
Everyone also understood that no matter the premises of the debate, whether about the origins of a house of parliament or the antiquity of the constitution, there was one fundamental issue at stake: whether the magistrate was the creature of the law or the law the command of the magistrate.230 The law would remain safely superior over the magistrate only as long as it was perceived older and not of his creation. “To support the Power and Priviledge of the House of Commons, as being an essential part of the Parliament,” Atkyns insisted, “it is absolutely necessary to make it out against these Innovators, that the House of Commons have ever been a part of the Parliament, and that they were long before 49 H. 3.” Otherwise, he warned, “they are but precarious in their power and priviledges, and enjoy them but of Grace.”231
The dispute continued into the eighteenth century. Isaac Kramnick has pointed out that, contrary to general impression, Brady did not wait until the nineteenth century for vindication, that he had some disciples in the eighteenth.232 But a distinction must be made between disciples of his better history and those of his new law. Most eighteenth-century writers citing him seem to have embraced his conclusions of law, writing against the ancient constitution233 and the “myth” of Magna Carta.234 They appear, in other words, to have been more interested in questioning the authority of customary constitutionalism than in pursuing scientific history. It was a rare person in the eighteenth century who thought it possible to accept Brady’s history and reject his law.235 To take his history wholeheartedly, one almost had to accept his constitutionalism—at least until the nineteenth century.236
Constitutionalist reaction to Brady continued into the age of the American Revolution, even into the last decade of the century. Arbitrary government was still the fear, and the legacy of the ancient constitution remained so strong that well into the 1770s unlimited power, or law as command of the sovereign, described as new constitutional theory that had only recently “sprung up amidst the decaying Forms of Gothick Policy.”237 As late as the year of the Stamp Act, when parliament decided to impose the “new” law of command on the colonies, Brady’s history was labeled “insufficient.”238 On both sides of the Atlantic in the 1760s the forensic habit of arguing historically lingered on, as did the concept of immemoriality as a shelter for immutable civil rights.239
Perhaps the most telling indication of the significance for the eighteenth century of the jurisprudence associated with the ancient constitution was the fact that there were in Great Britain several prosecutions (and much talk of other prosecutions) against people who published pamphlets doubting either the antiquity of the House of Commons or parliament’s coordination with the crown.240 British officials willing to go to the trouble of seeking indictments in these situations thought something serious was at stake, a perception that has not always been appreciated in the twentieth century. Discussing the House of Commons’s expulsion, fining, and imprisoning during Elizabeth’s reign of a member for writing that the House was the new person in the trinity of king, Lords, and Commons, Sir John Ernest Neale in 1953 observed, “To the precedent-quoting, wishful-thinking House of Commons of Elizabethan times, whose fantastic notions about the antiquity and powers of Parliament were the prop of their adolescent egoism, it was lese-majesty.”241
Egoism was not at stake. Constitutionalism was, and constitutionalism was such a fragile growth that it needed constant vigilance. When James II was on the throne, Brady’s opponents had felt it wise to remain silent.242 Later it was thought necessary to silence Brady’s disciples to preserve the constitutional settlement and the Protestant succession.243 One hundred and ten years after Brady published his Complete History of England, parliament spent part of at least four days debating what was described as a “Libel on the British Constitution.” The offensive book had been written by John Reeves, who espoused not only Brady’s history but, more importantly, his constitutional law as well. Reeves’s book, the earl of Albemarle complained, contained “doctrines directly hostile to the spirit of our constitution, and tending to alienate from the minds of the people their affection for it.” Reeves was accused of propagating five constitutional principles: “1. That the king alone makes laws. 2. That the other branches of the legislature are derived from the king. 3. That our liberties were grants from the king. 4. That the only object of the Revolution was to secure us a Protestant king. And 5. That the verdict of juries went for nothing.”244
In the ensuing parliamentary debate, the libel came down to a matter of John Reeves against the ancient constitution, and ancient constitutionalism prevailed. At issue was the mixed limited constitution of 1795, but discussion turned on forensic history, which meant, of course, that even the Saxons were relevant. One member of the Commons, a serjeant-at-law, protested that he could never “admit that it was historically correct, that the monarchy of this country was at any time antecedent to its constitution.”245 It was probably immaterial whether the fact could be proved historically. It could not be admitted constitutionally. “To assert that the Lords and Commons derived all their functions from the crown was most unconstitutional doctrine,” John Courtenay insisted. “Not under the Saxon or even the Norman line had any such doctrine prevailed; during the latter period, the English always claimed the rights they enjoyed under the Saxon government, though they were not always successful in their claims.”246 Courtenay did not have to offer historical proof, for he was talking of law and the proof was in the existing constitution. The House of Commons voted an address to the king that the attorney general be directed to prosecute John Reeves.247
It would be better for our knowledge of seventeenth- and eighteenth-century liberty if intellectual historians would give some thought to the purpose of forensic history. To ignore eighteenth-century constitutionalism is to make certain that we do not understand it. At the very least it should be considered that potentially there was an ultimate sovereignty vested in the king, who could commit no illegal act. Today we know that this potential sovereignty was harmless theory, but the eighteenth century did not enjoy our perspective and for many people then it seemed constitutionally vital to have a counter theory of limitations upon the king’s power. The constitutional imperative, therefore, arose not due to the inherent merits of ancient constitutionalism but from fear of the alternative—a fear Dr. Brady had said was groundless.
In the name of God let the English People enjoy all their Just, Due, Legal Rights, Liberties and Privileges, and let them never be disturbed in the present Establishment of more Freedom to them, than all the Subjects in the World do enjoy . . . ; Let them enjoy every thing whereto the KING or His Antecessors have given their Consent, and that hath been Allowed and Owned by Usage and Practice many Centuries of Years, and found Agreeable to the Interest of Prince and People.248
Brady’s law makes sense in twentieth-century Great Britain, for (if you substitute state or parliament or cabinet for king) it is twentieth-century British law. It made little sense, except to a monarchist, in the seventeenth and eighteenth centuries when liberty rested on customary grounds. Brady, Judge Atwood objected, was asking the English to trust sovereign will and pleasure, unchecked even by theoretical limits.
Perhaps ’twill be said I injure this good man in imputing to him a design in relation to the present Government; Since he owns that the most excellent great Council [Parliament] . . . received its perfection fromthe Kings Authority, and time. But ’tis obvious that its Perfection, must be meant [must mean] of such its Perfection, as his Book allows, and he would make evident, but what is that? That Lords should . . . be Summon’d to Parliament, or past by, at the King’s pleasure, and that if the King pleas’d he might Summon one Knight for a County, one Citizen for a City, one Burgess for a Burgh, and those nam’d to the Sheriff.249
Atwood was not saying that prerogative discretion of such extremes was inevitable if Brady’s constitutional theory became law. What he and other constitutionalists said was that if the forensic history of ancient constitutionalism were repudiated there would be no theoretical defenses against prerogativism,250 or, to use a twentieth-century expression, the security of mixed monarchy would “lose all credibility.”251 That was why the Irish law professor Francis Stoughton Sullivan, as late as the year of the Declaration of Independence, urged in the second edition of his Lectures that students study the ancient constitution and the Gothic forms of government.
From hence only shall we be able to determine whether the monarchy of England, as is pretended, was originally and rightfully an absolute royalty, controuled and checked by the virtue of the prince alone, and whether the privileges of the subjects, which we are so proud of, were usurpations on the royal authority, the fruits of prosperous rebellion, or at best the concessions of gracious princes to a dutiful people. . . . The question is of a matter of fact; for on the decision of the fact, how the constitution of England antiently stood, the question of the right solely depends.252
Sullivan stated what is today an incredible theory of law. We must, therefore, be impressed that we do not find it in some extreme polemical tract of ancient constitutionalism, but in lectures intended to teach law students the common law. On both sides of the Irish Sea during the American Revolution the two university professors entrusted with the task of teaching the common law of England were, in fact, teaching the ancient constitution of Sir John Fortescue, Sir Edward Coke, and Sir Matthew Hale. Reject Brady and follow William Petyt, Richard Wooddeson instructed his Oxford students, adding with a confidence that only a common lawyer could place in forensic history “that among the [ancient] Britons there existed legislative assemblies of the democratical kind.”253 Sullivan told his students in Dublin to study the constitution of contemporary Great Britain by going back in time, to as far as the Roman Empire and the forests of prehistoric Germany.
This research will be of use, not only to understand our present constitution, which is derived from thence, but to make us admire and esteem it, when we compare it with that which was its original, and observe the many improvements it has undergone. From hence, likewise, may be determined that famous question, whether our kings were originally absolute, and all our privileges only concessions of theirs; or whether the chief of them are not originally inherent rights, and coeval with the monarchy; not, indeed, in all the subjects, for that, in old times, was not the case, but in all that were freemen, and, as all are such now, do consequently belong to all.254
Sullivan’s history may be nonsense to twentieth-century intellectuals, but it was the very essence of eighteenth-century constitutionalism, and, in the eighteenth century, customary constitutionalism was the only pillar strong enough to support liberty.
FORENSIC TECHNIQUES OF ANCIENT CONSTITUTIONALISM
Arguments should not be misconstrued. The claim made here is not that advocates of the ancient constitution understood law better than their opponents or that they always argued correct legal principles. Constitutional law was much more uncertain during the seventeenth and even the eighteenth century than it would be in Great Britain after 1850 or in the United States after 1803. In England and the colonies the law of Selden, Coke, Somers, Bolingbroke, and James Otis was at least as doubtful as the law of James I, Strafford, Jeffries, Walpole, and Thomas Hutchinson.255 What is contended is that exponents of ancient constitutionalism were generally arguing for restraint on government power and did not want government acting capriciously toward life or property. And the reason was not because thinking of the past led them to champion restraint but because the ancient constitution was a convenient, pragmatic, contemporary, and forensic way of arguing restraint by those already converted to that side of the constitutional paradox.
If we accept the premise that students of the ancient constitution in the seventeenth and eighteenth centuries were arguing the contemporary constitution, not history, we will better understand what they were saying and why they said things in certain “unhistorical” ways. It was not just common lawyers but everyone arguing against arbitrary power in those centuries who tended to look at the past from what recent critics have termed an ahistorical standpoint. Of course the learned, accepted method of thought about the common law makes the perspective even more pronounced. Even today, a lawyer trained in common law methodology thinks that a judge who rules on a question in litigation is stating the law as it has always been. If the judge reverses a previous decision and states a new rule in its place, lawyers are aware that the law has changed, but the new rule is thought of by lawyers less as being new than as having always been potentially the law on that particular matter. What to a historian is now the “old” rule, to the lawyer is the “erroneous” rule. A long line of precedents that has been overruled is not, to the lawyer, the former law as it would be to the historian, but incorrect law, discarded law, or not law at all.256 What separates the lawyer’s view of the past from the historian’s is the reality for the lawyer of that potential. Because the lawyer knows the new rule has always potentially been valid, it had always been the correct interpretation waiting to be promulgated.
Most of the techniques of arguing ancient constitutionalism outlined here are the techniques of forensic history in general—the marshaling of facts supporting only one side of a litigation, for example. There was, by contrast, one aspect of ancient-constitution forensic history not prevalent in most forensic history, a characteristic that ancient-constitution history shared with whig history: the division of the past between heroes and villains. “[W]e find nothing in our Common Histories of these Times, but the Brave Feats performed by the English for their Fundamental Rights and Liberties,” Robert Brady complained of ancient constitutionalism. “Nothing in Sir Edward Coke [,] Mr. Selden, Mr. P [r] yn [ne], and all late Writers when they chop upon these Times, and mention any thing relating to them, but the Magnanimity of the English in Appearing for their Birth-rights, and the great Privileges they had formerly injoyed.”257
Brady understated the complaint. Ancient constitutionalists not only saw the past of Saxon or English freedom in heroic terms, they were apt to judge the existence and extent of liberty by their taught perceptions of historical times without bothering with empirical data. Why should “a modern lawyer” be interested whether feudalism was introduced by the Saxons or the Normans, a barrister, James Ibbetson, asked in 1777. He had an answer typical of eighteenth-century ancient constitutionalists.
If we attribute to the Normans the introduction of the Beneficium or feud, with its necessary consequences, as well as its oppressive deductions; we must regard it as an innovation upon the common law, the arbitrary imposition of a tyrant inimical to the liberties of the suspected subjects of his acquired territory.
If we derive the feudal constitution from the Saxons, it assumes a milder form; we connect it with a government that tended to promote the liberty of the subject, and to preserve it from infringement; with the names of Alfred and of Edward, and with the laws that have made those names venerable.258
Put another way: to find that an institution had Norman origins was to reveal it as an engine of arbitrary power. To find an institution had Saxon origins was to discover that it had been developed by liberty to serve a free people.
The tactic also worked the other way. A supporter of the constitution of power could strengthen the case for government authority by attributing institutions to the Normans. That was why Ibbetson was critical of writers whom he thought supported the authority of arbitrary power, especially when they pushed the origins of institutions and laws no further back in time than the Norman era. “The Dean, in attempting to debase the rights of the people,” Ibbetson wrote of Josiah Tucker, “has exaggerated the oppressions of the feudal aristocracy. He has endeavoured to demonstrate that the military tenants were the only freemen of the realm, and that the charters of the Boroughs originated at the late period from the indulgent avarice of the Norman monarchs.”259 Joseph Towers also criticized Tucker, accusing him of slanting history to fit his definition of law, in other words, of writing forensic history.
The zeal with which the Dean of Glocester [Tucker] is animated . . . to oppose the principles of the assertors of the common rights of mankind, leads him to give an account of the condition and manners of our ancestors in the greatest degree humiliating and degrading. He feels no desire to maintain the honour of his country: but, to support his own political reveries, would represent the majority of the people of England as the descendants of the lowest and meanest slaves.260
Facts or what historians call truth were less important than the perceived truths of the ancient constitution and the needs of the current constitution. The ancestors of contemporary Britons could not have been slaves because, if they had been slaves, they could not have left a legacy of freedom. And they had to have bequeathed freedom if freedom was the constitutional inheritance of contemporary Britons.
A second technique of ancient-constitution history was selectiveness. Brady complained of this tactic, referring to one of Petyt’s arguments, for example, as “grounded upon some parts of three several Records in the Fifteenth of King John, which he hath again picked out to serve his purpose, and impose upon his Readers.”261 Although forensic historians from Coke to sitting justices on the United States Supreme Court always have used only those bits of the past that supported their legal position, the methodology has for some reason been found singularly irritating by professional historians. “The Americans’ blending of empiricism and rationalism,” Gordon Wood has complained of colonial whig arguments during the revolutionary controversy, “lent a permissiveness to their use of history that makes it seem to us superficial and desultory; indeed they often appear to be simply selecting from the past examples to buttress generalizations deduced by pure reason. Since it was the constant and universal principles applicable to solving immediate problems that they were really after, there was always the danger in the delicate balance between historical experience and self-evident truth that the rational needs of the present would overpower the veracity of the past.”262 Wood prejudiced his case when referring to “their use of history.” He assumed that it was history without asking if it was what he meant by history. We, however, should ask why the veracity of the past should be a consideration in an argument that admittedly was concerned with “immediate problems,” not problems of history but problems of eighteenth-century constitutional law and constitutional liberty. The American whigs, like other forensic historians, did not turn to constitutional history or to legal records with open minds. They could not and did not expect to base their case upon what the past had in fact been, for had they looked with a historian’s open mind they would have found conflicting authorities and they would have had to deal with precedents hostile to their argument. Practical people facing practical problems, they took from the past what they needed or found useful.
It is quite another matter that forensic historians sometimes manipulated data or changed historical facts. Altering the record or rereading the past were techniques used by forensic historians defending parliamentary autonomy in the seventeenth century,263 and they are still employed by American courts today. Much of the history with which the federal judiciary has found new “rights” for native Americans under the resurrected and reinterpreted Intercourse Act is pure invention.
A more frequent and certainly more lawyerlike technique employed by practitioners of ancient constitutionalism was to assume that a desired principle of law was part of the ancient constitution and to shift onto the other side the burden of proving otherwise. “The standing body of our Laws is a clear proof that the power of our Kings is limited: How come we by Municipal Laws, if we must submit to their will?” the earl of Warrington asked. “But if it shall be answer’d me that this Government was the work of some King, and that he directed the form of our Constitution: I do in the first place desire to know who that King was, and in what Age he lived.” Pressing the burden further should opponents of the ancient constitution find their English Justinian, Warrington formulated a presumption of fact that the other side had the burden of disproving. As it was obvious that any king who could have formed such a constitution “was extremely Wise and Just,” the presumption was “[t]hat that King did believe that it was not so just and reasonable to govern by his Will, as by those rules which the Law has prescribed, that is, that it was more reasonable that the Law should controul his Will, rather than that his Will should over-rule the Law.”264 Like any competent common lawyer, Warrington was trying to put his side of the constitutional debate into a “no-lose” position. If his burden had been imposed the case could have been won. After all, what the other side had to prove was that the English Justinian knew of the tenets of the ancient constitution and deliberately rejected them, leaving Warrington with the argument that if the king knew of the ancient constitution he admitted its existence and his rejection was illegal.
A final technique of the forensic history of ancient constitutionalism worth noting because it was so frequently employed was to make the principles of the ancient constitution a standard of official or legal conduct. Junius did this with vindictiveness against Lord Mansfield, accusing the chief justice of King’s Bench of violating both the substance and the spirit of the ancient constitution.
I see, through your whole life, one uniform plan to enlarge the Power of the Crown, at the expence of the Liberty of the subject. To this object, your thoughts, words, and actions have been constantly directed. In contempt or ignorance of the Common Law of England, you have made it your study to introduce into the Court where you preside, maxims of jurisprudence unknown to Englishmen. The Roman Code, the Law of Nations, and the Opinion of Foreign Civilians, are your perpetual theme;—but who ever heard you mention Magna Charta or the Bill of Rights with approbation or respect? By such treacherous acts, the noble simplicity and spirit of our Saxon Laws were first corrupted. The Norman Conquest was not complete, until Norman Lawyers had introduced their Laws, and reduced Slavery to a System.—This one leading principle directs your interpretation of the Laws.265
This tactic, evaluating actions by the tenets of the ancient constitution, was particularly effective against Mansfield. He was a Scot, and it was part of the popular English prejudice against Scots in the 1770s that they had never been governed by the ancient constitution and, therefore, could not be trusted to defend liberty or be expected to understand the rule of law.
As Junius demonstrated, a tactic of ancient-constitution practitioners was to portray deviations from the standards of liberty as deviations from the ancient constitution. Instances of “liberty” standards in the second half of the eighteenth century were the right of some freeholders to representation and the constitutional autonomy of the House of Commons, both of which were legacies of the ancient constitution. “Parliaments, in some shape,” Blackstone at least twice argued, “are of as high antiquity as the Saxon government in this island; and have subsisted, in their present form, at least five hundred years.”266 This principle of the ancient constitution was so self-evident that Richard Wooddeson, Blackstone’s second successor as Vinerian law professor, dismissed as a precedent without constitutional standing the fact that Edward II had not called the Commons to parliament and had treated the Lords “merely as counsellors.”
This, however, being in exclusion of the lords of parliament, as well as of the commons, and happening when the powers of the nobles was at the highest, can hardly be thought an intended invasion of the rights of the legislature. Whatever similar instances, if any, can be produced, may justly be looked upon as violations of right, and infringements of the constitution. I am speaking of a legislative power in our kings, independent even of the lords’ concurrence, which no age ever recognized.267
Wooddeson may have been forced to this argument because, by the 1770s, when he wrote, the notion that the House of Commons was coeval with the ancient constitution had long been under historical criticism and its exponents were beginning to retreat. For ancient constitutionalists, however, the evidence of history was no barrier. If, on one hand, you were a law professor like Wooddeson, you could use the law of the ancient constitution to deny the facts of history: the House of Commons had to have been part of the Saxon government, or there could have been no ancient constitution; there was an ancient constitution, therefore the Commons could not have originated in Plantagenet times. If, on the other hand, you were too historically minded to deny that the Commons was of recent origin or, unlike Wooddeson, felt compelled to admit there was no historical evidence of its antiquity, there was, nevertheless, another tactic of forensic history for vesting representation with antiquity. This was to assume that the eighteenth-century British constitution could not have been a constitution of freedom if its ancestor, the English constitution of earlier times, had not also been a constitution of freedom, and project back onto antiquity the structural apparatus of constitutional liberty then existing in the eighteenth century. Edward Wynne, writing in the 1780s, described this technique as “corresponding with the abstract reason of things.”
The true antiquity of the Representation of the Commons is a point, as I take it, entirely unfathomable. There is very little evidence at all about the matter, that goes very far back; and most of that is so ambiguous, as to furnish no clear decisive conclusion. But whatever the mode of this representation originally was, or tho’ it might long continue to be different from what it has since been, it is very difficult to dispute its existence: because it corresponds with the abstract reason of things in the idea of a free Government; it results from the origin of Government as founded on consent, and that of our own in particular, not an absolute but a limited Monarchy. The Body of the People must, therefore, always have had some right to share the legislative power; it cannot be supposed this right could ever be entirely given up, but only delegated to others, entrusted to act for them.268
Wynne’s argument is not as simpleminded as it may seem on its first reading. On the contrary, it is a sterling example of what surely was the most attractive probative feature of the ancient constitution for those arguing it forensically, its pliability. The ancient constitution could be nearly anything you wanted or needed it to be. When the earl of Carys-fort wanted it to be democratic, he just looked for the evidence and, as he expected, found it. “In the early times of our history,” Carysfort pointed out, “we find the strongest evidence of the Democratic spirit of our Constitution. The Sheriffs who had the charge of the counties, the execution of justice, and the preservation of the peace, were elected by the freeholders, so were the Conservators of the Peace. . . . The consent of the people is, by our best Lawyers, considered as a term equivalent to authority of Parliament.”269
There was little on the liberty side of constitutional law that could not be supported by ancient-constitution scholarship. After all, as Wynne pointed out, “[h]istory . . . will not only explain subsequent laws, but will supply the silence of law itself.”270 Judge Robert Atkyns, sitting in the court of Exchequer Chamber, found the silence of nonexistent evidence forensically handy when counsel cited the histories of Sir Robert Cotton and William Prynne to prove that the House of Commons did not exist before the reign of Henry III. “But we must not be govern’d by Historians in matters of Law,” Atkyns wrote, “and therefore, notwithstanding this Observation of Sir Robert Cotton’s and Mr. Prynne’s, we must presume, that the House of Commons and Elections of Knights of the Shire, are as antient as the common Law, and have been time immemorial, because we find no written Law that does first begin any such Institution.”271 Atkyns’s audacity must be marked. Even Hugo Black would have been hard pressed to top him. The House of Commons had to be coeval with the common law because there was no written law creating it. He was not, of course, asking for an act of parliament creating parliament. That would have been unreasonable. But it was not unreasonable to conclude that the absence of a modern law was proof of ancient law. In truth, the technique is not that unusual today. The first Intercourse Act, federal judges have deducted, must have covered Indian nations wholly within state jurisdiction such as the Passamaquoddy and the Oneida or else the act would have said they were not covered.
Gilbert Stuart, the Scots advocate, used a similar technique to defend the same point of constitutional law that Atkyns defended, when citing an ancient tract which Coke and other writers had used to prove “the high antiquity of the commons.”
It is to be acknowledged, however, that Mr. Selden has demonstrated that this tract could not possibly be of the age of the Confessor, from its employing terms which were not in use till long after. But this does not wholly derogate from its force as to the point in question. For, allowing it to have been written in the reign of Edward III. the period which, with great probability, some writers have assigned it, it yet proves that the sense of that period was full and strong with regard to the antiquity of the constitution, as consisting of king, lords and commons; a circumstance which must have great weight in opposition to those, who would make us believe, that our constitution, as so formed, was unknown till the times of Henry III. and Edward I.272
Acknowledged forgeries of the past which had been concocted to document the ancient constitution are good evidence in the present for proving the ancient constitution because they are evidence either of what the forgers believed or of what they wanted the courts of their day to believe.
FORENSIC TECHNIQUES OF TIMELESS CONSTITUTIONALISM
The ancient constitution must not be thought mainly a model of liberty that existed in the golden age of antiquity when a warrior people cherished freedom and knew how to preserve it. The forensic value of the ancient constitution was not in its past perfection but in its present timelessness. The ancient constitution was a model, true enough, but it was also a means of constitutional renaissance, resuscitation, and redemption, made all the more relevant because it was not a constitution that had existed only in the distant past, but one that still existed, now, in the present.
Strikingly, in addition to its pliability, the most potent forensic attribute of ancient constitutionalism was its timelessness. It was a concept that entailed most of the anachronisms for which ancient-constitution polemics have been criticized by recent historiographers. Richard Goodenough, discussing the American rebellion in the year of the Declaration of Independence, summed up the constitutionality of a doctrine for which Americans were fighting, the doctrine of consent, by insisting, “[I]t is prior to all written Records; it is antecedent to all Statutes; it is coeval with, and essential to the very Existence, of this Constitution.”273 If the historical thesis strikes us as unlearned, we would do well to first recall its purpose: it provided a debating point that could be assumed, sometimes without even being proved.274 When ancient-constitution conclusions had to be proved, the “proof ” was established by being obvious, by being desired, or by being fitted into the generally accepted principles of eighteenth-century British constitutionalism.
Six years before Goodenough’s pamphlet, John Missing had lectured no less a legal expert than Lord Mansfield, the chief justice of England, on the rights of Britons to petition the throne by observing, “[T]he Common Law is more ancient, than that [sic] any Histories, Law-Books or Records can assist us to trace it; but though Histories, Law-Books and Records fail us, there is a Mode, my Lord, of discovering its Origin, and if this should lead us very far back into Antiquity, yet by a due Use of Common Sense, we shall run no Hazard . . . ; for, my Lord, if we ever so little exert our rational Faculties, we shall see, this Part of it at least, to be the Law of Nature, which is, the Law of God.” After all, it was obvious to Missing and should have been to Mansfield that “[t]he Right to complain when injured, is the Right of Human Nature, it is the main End of Peoples submitting to Government; it is the Origin of all Human Laws, and all Courts of Justice are established only to hear and redress Grievances; so that your Lordship sees this is no novel Institution, it is as old as human Nature itself, and the immediate Law of God.”275
The timelessness of the ancient constitution was a matter of common sense as much as it was of knowing the contours of current liberty, for some things did not change, such as the fact that people had always lived under law and government. Many premises of the ancient constitution were self-evident. After all, as William Dugdale had noted the previous century, “the Common Law, is, out of question, no less antient than the beginning of differences betwixt man and man, after the first Peopling of this Land; it being no other than pure and tryed Reason; . . . or the absolute perfection of Reason, as Sir Edward Coke affirmeth, adding, that the ground thereof is beyond the memory or Register of any beginning.”276 Not just twentieth-century historians but eighteenth-century opponents of ancient constitutionalism were on notice not to ask for historical certainty. The ancient constitution was shaped by subjective not objective proof.
The timelessness of the ancient constitution was developed more in response to polemical needs than anything else. Timelessness made it possible for an advocate of certain principles or institutions, the House of Commons for example, to place those principles or institutions in the context of continual constitutionality no matter if they had been overturned or were inoperative.277 Even long-standing constitutional custom could not supersede the timeless validity of a fundamental doctrine of the ancient constitution. Consider the grounds on which, at the very late date of 1783, the crown’s right to create peers at discretion was questioned. In the reign of Henry VII, it was charged, “a power was usurped by the Crown of conferring titles of dignity at pleasure; which incroachment, not being opposed by the Commons, has been continued to this day, contrary to the ancient law and constitution of the kingdom.”278 The choice of the word incroachment is what interests us. The practice was an “incroachment” against the timeless constitution even as late as 1783. The fact that three hundred years had passed since the “usurpation” had first been introduced did not matter. The usurpation had not become law either because the crown had no prescriptive rights against the ancient constitution, or because time did not run against immutable principles no matter what occurred.
For purposes of argument, to gain polemical advantage, one needed only to postulate a timeless continuity,279 and practices to which you objected became subversions of the ancient constitution as it still existed in fact as well as in theory.280 Or even when there were changes in constitutional government that could not be denied—substantial departures from past constitutional practice such as the loss by the clergy of self-taxation or the loss by the House of Lords of jurisdiction over judicial appeals—they could often be dismissed as matters of mere form, changes in detail, not fundamental alterations. “If you ask whether these things are not an Altering or Breach of the Constitution,” Charles Leslie explained. “I think not. For while the Fountain Constitution stands Secure, any various Runnings of the Rivulets are no Breach of the Constitution.”281 What mattered was the essence and the general principles of the constitution. It was that essence and a few “first principles” that were timeless, not particular rules or changing customs. With that timelessness, the ancient constitution was always available as a standard when arguments were made for correcting the rivulets of erroneous details.
In the early years of the reign of George III there was a reaction among some constitutionalists to the role that ministers had begun to play in the formulation of government policy. Saying that the office of “minister” was “entirely unknown to our Constitution,” one pamphleteer argued for its abolition. “To demonstrate the Inconsistency of this Office, with the Principles of the Constitution, it will be sufficient to shew the Nature of it, and trace it to it’s Original in other Governments, from which it appears to have been ‘very improperly borrowed,’ among us.”282 We must not be puzzled as to what the author meant by “constitution” and “constitutional.” He was using good late eighteenth-century constitutional words when he said that an office filled by an appointee of the king and recognized by parliamentary legislation was not known to the constitution. Of course, his constitution was not the constitution of Lord Mansfield or the current attorney general. We might say that the constitution he cited was not so much the ancient constitution as the timeless constitution, but that would be a distinction without a forensic difference, as the appeal was still to what today’s historians call a mythical constitution. What is important about the concept of timelessness is the forensic technique that timelessness kindled. By arguing for constitutional change by appealing to antiquity, it utilized the idea of timeless first principles that existed independently of changes in specific details, even changes in substance. In fact, the concept of timeless first principles gave shape to the two most prominent techniques of forensic history in the seventeenth and eighteenth centuries—the regenerative ancient constitution and the ancient constitution continually being “restored to its first principles.”
There was a way of speaking and of arguing that dominated public discussion about the British constitution in the eighteenth century. It used words and phrases such as “restore,” “return to,” “original purity of the constitution,” and “the first principles.”283 These expressions provided a reference for arguing constitutional law that came directly out of ancient-constitution thinking. That thinking in turn was the product of the eighteenth-century notion that the history of the ancient constitution was a tale of continual degradation and renewal. The Saxon constitution, Allan Ramsay pointed out, had flourished for six hundred years, “till it was overwhelmed, and destroyed, by William . . . and lay buried under a load of tyranny, for one hundred and forty seven years. When again it arose like a phenix from its own ashes, in the reign of Henry the third.”284 Or, as viscount Bolingbroke suggested, discussing the same period of post-Norman regeneration, William may have been arbitrary but even under the worse tyranny the law of the ancient constitution, no matter how weakened and battered, always rebounded as the law of liberty. The Normans
introduced many illegal Practices, and some foreign Principles of Policy, contrary to the Spirit, and Letter too, of the antient Constitution; and . . . these [Norman] Kings and the Lords abused their Power over the Freemen, by Extortion and Oppression, as Lords over Tenants. But it will remain true that neither Kings, nor Lords, nor both together, could prevail over Them, or gain their Consent to give their Right, or the Law, up to the King’s Beck. But still the Law remain’d Arbiter both of King and People, and the Parliament supreme Expounder and Judge both of it and Them. Tho’ the Branches were lopped, and the Tree lost its Beauty for a Time, yet the Root remain’d untouch’d, was set in a good Soil, and had taken strong Hold in it; so that Care and Culture, and Time were indeed required, and our Ancestors were forced to water it, if I may use such an Expression, with their Blood; but with this Care, and Culture, and Time, and Blood, it shot again with greater Strength than ever, that We might sit quiet and happy under the Shade of it; for if the same Form was not exactly restored in every Part, a Tree of the same Kind, and as beautiful, and as luxuriant as the former, grew up from the same root.285
The rebirth in post-Norman times had been complete. The ancient constitution had been regenerated to new strength, but otherwise unchanged in every material way. And as late as 1771, “though much impaired, maimed, and disfigured, it hath stood the admiration of many ages; and still remains the most noble, and ancient monument of Gothick antiquity.”286
Ramsay and Bolingbroke were not just writing history. They were practicing the most utilized polemical device of eighteenth-century law and politics. “[T]he model of the British constitution,” a reviewer explained in the year that the Stamp Act was promulgated, “has again and again preserved its existence, when the morals and principles of the people were sunk to the lowest degree of vice, ignorance, and slavery, both civil and religious. This model prevailed against the impetuous Tudors, as well as the despotic Stuarts; and by the excellent checks it contains (whatever may be the fate of families or factions) it must survive all its enemies.”287
As was discussed above, the purpose of the model can be easily misunderstood. It has the appearance of serving the conservative or the reactionary, but in truth it lent itself to almost any constitutional theory except, as a general rule, the justification of power.288 If thought is given to the question, it should be evident that the concept of a self-restoring, self-healing, regenerative constitution could be more useful to radical reformers than to political or constitutional conservatives defending the status quo.
Due to the turn that ancient constitutionalism gave to eighteenth-century political controversy, in debates between the British administration and its opponents it was the government’s side that was most likely to eschew arguments of the past and rely instead upon abstract constitutional reasoning or upon principles of expediency.289 An example occurred during the debate in the House of Commons over repeal of the Stamp Act. As reported in a contemporary “history,” the ministry defended parliament’s constitutional authority to tax the North American colonies but admitted that the tax was politically in-expedient.
The constitution of this country, said they, has been always fluctuating, always gaining or losing: even the representation of the Commons was not till the reign of Henry the seventh reduced to any fixed system. What does it avail then to recur to ancient records, when the constitution is no longer the same; when no body can ascertain its state at the times, which are quoted, and when there are even in the great charter things, which are no more constitutional? Such misplaced industry is as idle as all that mass of learning and dissertation collected from natural lawyers, such as Locke, Selden, Puffendorff and other speculative men under whose arguments and refinements the subject has been almost buried. Beyond the era of Edward the first, or king John, the Mode of taxation is involved through the uncertainty of history in doubt and obscurity. Some of the writs upon record were conformable, some contrary, to law. . . . Can any just conclusion be drawn from such discordant, such opposite precedents?290
Speakers on the other side of the Stamp Act debate—the pro-American side led by William Pitt and Lord Camden—apparently not only argued the relevancy of the past, they recalled how the timeless constitution regenerated itself by “recovering” legal rights.
We acknowledge, said they, that the constitution has been always in a fluctuating state, and that the earlier periods of our history are not without obscurity. But does it hence follow that we are to form do [no] analogical reasonings upon them? Because we know not the whole, must we make no use of what we know? Had our ancestors argued in this manner, and built their arguments upon the actual state of the constitution, they would have crouched beneath the rod of tyranny, when it happened to be shook over them, and would never have made a single effort to recover their just rights. . . . Let the actual situation of affairs be ever so bad, we must not look up to our forefathers for precedents, because the struggles between privilege and prerogative prevented them from being regular and uniform. What then! are there no general maxims, no principles congenial to the constitution to guide our researches in this region, which you represent as obscure and perplexed? What is become of that unalienable right of a British subject, which secures him from being taxed, or judged but by the common consent of his peers? This is the first, the vital principle of our liberty.291
It was to provide a forensic technique for making that “effort to recover” that the timeless, regenerative, ancient constitution served its most notable eighteenth-century function. What may seem paradoxical inconsistencies to the uninformed were tools of the trade for the forensic historian of ancient constitutionalism. Innovations were argued on grounds of preserving the ancient constitution,292 and restoration was argued to hide the introduction of constitutional novelties.293 Joseph Galloway used this technique to press the constitutional contention that Pennsylvania judges, like their common law counterparts in England, should have tenure quam diu se bene gesserint. English judges had enjoyed that tenure since the Glorious Revolution. The Bill of Rights, however, had not been extended to the colonies where judges sat durante bene placito. Galloway knew that the English rule had been an innovation in 1689 and would be an innovation if introduced into Pennsylvania. Appreciating that drastic changes in the constitution were always suspect and might encounter resistance for that reason alone, Galloway followed the path of least constitutional resistance. He made his case for the innovation of tenure at good behavior by transmuting it into the restoration of a lost but still extant constitutional right.
Here it is worthy your Information, first, that the Rights and Liberties claimed and declared by the Bill of Rights, that second Magna Charta, and the Act of Settlement created no Innovation of the ancient Constitution. The Parliament had no Design to change but only to restore the ancient Laws and Customs of the Realm, which were the true and indubitable Rights and Liberties of the People of England. This appears as well from the Bill of Rights, and the Resolves which preceded the Act of Settlement, as from the Act itself. From whence it follows, that this Right of the People to have their Judges indifferent Men, and independent of the Crown, is not of a late Date, but Part of the antient Constitution of your government and inseparably inherent in the Persons of every freeborn Englishman; and that the granting Commissions to the Judges during Pleasure, was then esteemed by the Parliament, and truly was, an arbitrary and illegal Violation of the People[’]s antient Liberties.294
Galloway was doing much more than saying that the “ancient constitution” ran in the American colonies or that a right vested in “freeborn Englishmen” by the ancient constitution was “inherent” in freeborn Americans, even though they had never enjoyed that right. The ancient constitution had a validity and a force that not only superseded time and centuries of practice, it superseded space and applied equally to the new world as to the old. He was also adapting to the colonies the most familiar, effective, and stunning of the forensic techniques of ancient constitutionalism. It is a technique, incidentally, still popular among United States Supreme Court justices, a use of “history” that in its twentieth-century American context has been described “as a precedent-breaking device,”295 based on a “Marxist-type perversion of the relation between truth and utility” that assumes “history can be written to serve the interests of libertarian idealism,”296 or can be manipulated to supply “an apparent rationale for politically inspired activism that can be indulged in the name of constitutional continuity.”297
In the eighteenth century the operative verb for this forensic tactic was restore. Ancient constitutionalists were “Restoring the Constitution”298 or, better still, restoring “the genuine Constitution”299 or “our true Constitution.”300 The purpose of parliamentary reform, for example, was described as “the restoration of the people to their fundamental rights.”301 A critic of ancient constitutionalism summed up the vocabulary when complaining “of those who speak of the ‘principles of the constitution,’ of bringing back the constitution to its ‘first principles,’ of restoring it to its ‘original purity,’ or [‘]primitive model.’”302
The back-to-first-principles technique of ancient-constitution forensic argument was employed by people from all sides of the political spectrum during the eighteenth century. James Burgh, who was an extreme democrat, though not of the Tom Paine type, urged his fellow Britons not to “be discouraged from using the proper means for restoring the constitution.”303 When he was denied the seat in the Commons to which the freeholders of Middlesex had elected him, John Wilkes followed an eighteenth-century political ritual by demanding the “restoration of the constitution.”304 When, by contrast, parliament in 1701 had enacted legislation excluding certain “placemen” from membership, William Pudsey had hailed the legislation as going “a great way towards the restoring our Constitution to it’s primitive Virtue and Sincerity.”305 Later, in 1744, the issue of placemen was again in agitation, and a bill “for double taxing” incomes on pensions and “places” was before the House of Commons. “[I]n order to preserve a free government,” Edward Southwell told the House, quoting Machiavel, “it often becomes necessary to bring it back to its first principles; which is a maxim the friends of liberty will always take care to observe, and, we may expect, that it will be as constantly opposed by ministers, who always have been, and always will be, grasping at arbitrary power.”306 The administration, opposing the bill, tried to reverse the argument about arbitrary power by claiming that double taxing was not a practice known to liberty; it was “the practice of arbitrary governments, or of princes that were aiming at arbitrary power.”307 Southwell did not back down. Double taxation was arbitrary, he admitted, but a little arbitrariness could be tolerated for the greater good of restoring the Saxon constitution to its ancient purity.
Upon this principle, Sir, let us examine the motion now before us, in order to see whether it is not returning a step back to our ancient constitution; and, I am sure, no man, who has read the histories of this nation, will say, that our ancestors the Saxons ever thought of inviting men to serve the public by great salaries or pensions: on the contrary, we know, that all those offices that are of true Saxon originals, such as sheriffs, parish offices, and most of our offices in cities and boroughs, are attended with an expence, instead of being of any advantage to the officer. At least, if they now make any advantage of them, it is by some innovation unknown to our ancestors, and such a one as they would never have allowed to be introduced.308
Southwell and other opponents of corruption by pensions and places used the ancient constitution hoping to “restore” balance to the British government. That is, they hoped to “restore” more representative, responsible government by strengthening the independence of the House of Commons. It is interesting to compare that purpose to Carter Braxton’s use of the same technique for an opposite end: to “restore” government to constitutional responsibility by keeping it independent of democratic caprice. Advising Virginians in 1776 on how to frame their new government, and fearful that the colonies were likely to vest all authority in their elective legislatures, Braxton wanted Americans to think of the virtues of the ancient constitution of balances and limitations rather than to rationalize a new scheme based on notions of equality or the sovereignty of the common people. The crown, Braxton admitted, had driven Americans to rebellion not only by its policies but by using the corruption of pensions and places to undermine the restraints on its prerogatives which the constitution had vested in the two other branches of parliament. As a result, Virginians were “prone to condemn the whole” British constitution even though only “a part”—corruption—“is objectionable.” It was wiser and safer to turn to the tried and the tested than to risk experimentation.309 “[C]ertainly it would in the present case be more wise to consider, whether if the constitution was brought back to its original state, and its present imperfections remedied, it would not afford more happiness than any other.”310 The best government, then, was government responsible to the constitution itself, not one responsible to fickle public opinion.
Braxton was combating what he called “popular governments.” By contrast, the last significant use of the ancient constitution in eighteenth-century Great Britain was by people who wanted to “restore” popular influence to the House of Commons by “restoring” annual or, at least, triennial elections. When John Sawbridge introduced into the House of Commons “his annual motion” to “restore” yearly elections, he was praised by the London Magazine for his zeal in “bringing government back to the original institutions by which it gained permanency and strength.”311 That argument was an instance of ancient-constitution advocacy at its best. Annual elections would have introduced a radical change to eighteenth-century British government—unless, of course, you viewed the question not from the perspective of the eighteenth century but from the perspective of the ancient constitution.
A generation after Sawbridge had died, Granville Sharp continued the fight for annual elections by invoking the ancient constitution in what by the 1790s had become a classic, perhaps dated argument:
[A] more equal representation of the Commons in annual Parliaments (i.e.,elected “every year once, or more often if need be”) is not only anancient, but even anindispensable, right of the people. That this ancient constitution is indispensable the many fatal effects of deviating from it have rendered sufficiently obvious; and therefore no remedy can be more efficacious, and constitutionally natural, than a revival of that primitive and fundamental right, according to the rule of Law, that, “as often as any thing is doubtful orcorrupted, we shouldrecurto first Principles.”312
When people protested “that the whole constitution must be new-modelled ” if there were to be annual elections, Sharp replied that it was not a remodeling but a restoring that he was after. “[W]e are far from desiring that ‘ the constitution may be new-modelled; ’ we only pray, that the unjust usurpations, (made without the consent of the people), the corruptions, and other such abuses, may be taken away and reformed: and then the ancient constitution of annual elections, and ‘ more often if need be, ’ will recover its full vigour without any other alteration.”313 Of course, Allan Ramsay added, it was not an innovation to “weed, from our constitution, all modern heterogeneous matter, that hath poisoned its principles, and established a tyranny upon the ruins of our ancient laws, and liberties.”314
Innovation could always be softened by being clothed in the dress of ancient constitutionalism. The strategy was to avoid the suggestion of altering this institution or introducing that doctrine. The forensic tactic, rather, was “preservation” of the purpose and the spirit of the ancient constitution. The Society for Constitutional Information was an organization of reformers primarily interested in “restoring” popular elections for members of the House of Commons. “Let the ingenuous and uncorrupted part of our countrymen,” the Society urged Britons in the early 1780s, “decide which are the real friends of the constitution, and which the introducers of innovation; those who would preserve it in its original vigour, or those who, with a seeming reverence for the forms, would annihilate the spirit.”315
In the polemics of a constitutional debate, the phraseology was in the language of a forensic vocabulary. The constitutional values were values familiar to us, true enough, “rights,” “popular,” “freedom,” and the like. But the operative words were eighteenth-century, ancient-constitution words, “restore,” “original purity,” and “preserve.” They were not the words of the nineteenth-century constitution of command: “reform,” “change,” or “decree.” “May what you have already gained,” Thomas Day told the Society for Constitutional Information at one of its county meetings for 1780, “be only a prelude to that complete redress, which can alone restore the power and freedom of this nation, by restoring the Constitution to its original purity.”316
DO LAWYERS CARE?
We are not quite done with the historiography of the ancient constitution. There are two lingering questions that should be addressed, even though they may never be answered to the satisfaction of most scholars. The first is whether twentieth-century historians of the ancient constitution really believe that history was so controlling of people in the seventeenth and eighteenth centuries that it not only provided the context of argument but dictated the outcome of events. The second is whether the lawyers and other practitioners of ancient constitutionalism cared whether the facts that they argued from the past were historical or provable and, indeed, whether it is likely they gave the matter much thought.
Strong claims have been made in recent years for the authority of history in the seventeenth century. The most obvious is that history shaped thought. “The ideology of the Ancient Constitution,” one argument maintains, “can be accounted for by means of a purely structural explanation: all English law was common law, common law was custom, custom rested on the presumption of immemoriality; property, social structure, and government existed as defined by the law and were therefore presumed to be immemorial.”317 Less obvious are assertions of how history shaped events. If only the opponents of Coke, Selden, and the ancient constitution had been able to invest “the civil law, the martial law, or the . . . feudal law with histories of their own,” it has been surmised, then they and not the common lawyers might have determined the course of constitutional development. The reason, apparently, is that had these other laws possessed histories of their own they might “have shaped the governance of England.”318 The fact of the matter is that the opponents of Coke and Selden could have come up with these histories, but what would have been the point? They were not arguing for civil law or martial law, but prerogative law, and prerogative law had just as much “history” as common law or ancient-constitution law. It was not their histories that were in controversy but their jurisprudence. Both sides argued “history” not so much when the past seemed relevant but when the past seemed arguable—when they thought the past-as-precedent could be argued to carry the point of law for which they were contending. That is why the advocates for law by royal command found their “history” in the Tudor century and “the constitutionalists were forced into” what has been called “a kind of historical obscurantism—compelled to attribute their liberties to more and more remote and mythical periods in the effort to prove them independent of the will of the king.”319 But were the two sides exploring history, or, because already committed to a theory of government, did they turn to the epochs that supported their theory by precedents, analogies, and appeals to custom? Was it “two different views of history”320 or two different views of constitutionalism that were at stake? Perhaps what the material of this essay comes down to is whether, as is often assumed, “[t]he past was looked to . . . to solve the problems of the present,”321 or whether, as has been suggested here, the past was looked to for selective incidents which were cited not as historical evidence but as constitutional authority in the form of legal precedents or legal analogies to argue issues of current law, politics, or religion.
There is no need to defend forensic history. There is not even need for historians to understand it, although they might save themselves much puzzlement if they made the effort. One problem may be that too much is owed to Sir Edward Coke, and, as Christopher Hill pointed out, regrettably he was not an intellectual. Like so many other practitioners of forensic history he was merely a lawyer.322 But then it may be a mistake to look to the intellectual. Forensic history in the seventeenth and eighteenth centuries was not an intellectual pursuit. It was a pragmatic, professional, and above all constitutional pursuit, with a pragmatic, professional, and above all constitutional purpose. It relieved the lawyer, judge, or legislator of the burden of resolving gravid legal issues aided only by the limited insight of one mind and one age.323
One could stress the pragmatic and point out that the legal issues being resolved were English legal and constitutional issues. What were required were English solutions, that is, English legal judgments, and legal or constitutional judgments are not the same as moral judgments or even political judgments. How better to arrive at those judgments, it might be argued, than by English experience, even if that experience is selected by a picking and choosing of supporting evidence. Even if the evidence compiled of the past is not a historian’s “true” picture of the past, it may be a legally relevant picture of what, for the issue at bar, is the legally relevant part of the English experience.
There was another purpose to forensic history, a constitutional purpose that in the twentieth century has come to be called “the search for neutral principles.” That we, today, believe that no principles can be applied neutrally does not mean that the common lawyers of the seventeenth and eighteenth centuries had received that insight. The common lawyer’s use of forensic history was part of the legal imagination of those centuries and was essential to what people in those centuries thought was the rule of law. Even selective, polemical forensic history can have the appearance, no matter that it does not have the reality, of freeing constitutional and judicial decision from the caprice of being based on the policy of the day rather than on impersonal, objective principle. And it does so by elucidating standards of law (or the rule of law) much like the common law’s “artificial reasoning” that was at the heart of Coke’s legal philosophy. Forensic history brought to the process of decision-making both a canon of relevance and a measure of “rightness,” by steering decision from the dictates of mere power.
Right would prevail over naked power or mere reason if the law were autonomous from will and pleasure, and law was autonomous to the extent that people had trust in the neutrality of its methodology of arriving at decision. Aside from the procedure of the common law writ system and the tradition of a relatively independent judiciary, there was little in English or British law to blunt the will and pleasure of arbitrary decision except the mechanics of balance in the tripartite British constitution and the entrenchment of rights in the prescription of a neutral past. Rights to property were secured by being answerable only to certain forms of action, extending over the years from the possessory assizes to the more recent writ of ejectment. Liberty was secured by analogizing its “ownership” to property and arguing the ancient constitution not just as a constitution of liberty but as a source of “first principles” that always were neutral because they were timeless and their origins were divorced from any discoverable politics.
Acceptance was the most important aspect of constitutional neutrality. The English in the seventeenth century and the British and Americans in the eighteenth century, to a high percentage, accepted as a fundamental given of liberty that the abstraction of “law” could be trusted where personal decision could not. Common lawyers made concerted efforts to persuade people of the law’s equal protection. Sir Edward Coke, for example, had not been solving contemporary problems “by the recovery of an ancient heritage,” as has sometimes been suggested,324 when telling the English that their material property in their goods and their intangible property in liberty and country were secured by the neutrality of the ancient patrimony that was their shared inheritance. The right to be secured in both their property in private possessions and their property in liberty belonged to all English citizens equally because they owned that right and every other civil right individually. That was the lesson Lord Coke wanted to teach. It was, he explained, partly a matter of instruction, a matter of people learning that what they had—rights as well as chattels—they owned because they also owned the right to live under the common law and could depend on the “learned & faithfull Councellors” of the law.
There is no Subject of this Realme, but being truely instructed by good and playne euidence of his auncient and vndoubted patrimony & byrth-right, (though hee hath for some time by ignorance, false perswasion, or vaine feare, bene deceiued or dispossessed) but will consult with learned and faythful Councellors for the recouerie of the same: The autient & excellent Lawes of England are the birthright and the most antient and best inheritance that the subjects of this realme haue, for by them he inioyeth not onely his inheritance and goods in peace & quietnes[s], but his life and his most deare Countrey in safety.325
“I know,” Coke added, “that at this day al[l] Kingdomes and States are gouerned by Lawes, & that the particular & approued custome of euery natio[n], is the most vsuall binding & assured Law.”326
We may wonder how much of this Coke believed. We cannot doubt that he believed English laws “excellent,” the best in the world, but did he really believe they were immemorially “auncient”? The guess of the historiographers of ancient constitutionalism has been that Coke believed he was writing history and that he intended to write history, not law. It must be surmised that this is a guess because there is no indication they asked themselves if Coke was interested in history. The conclusion seems to have been assumed. Yet there is a legitimate question whether any of the forensic historians discussed here believed that the history they wrote provided a historically accurate rather than a constitutional picture of the past.
The question can be limited to lawyers, as it has been the lawyers, not nonlawyer forensic historians of the seventeenth and eighteenth centuries, whom the better historians of our day have accused of not knowing what they were about. And if we are concentrating on lawyers, there is yet another way—in regard to lawyers—to put the question we have been asking. It may be thought that that question is whether the lawyers, who certainly knew that they were practicing forensic history, also thought that their history of the ancient constitution was history by the historical method. That, however, is not the question we need answered. The significant question is, “Did lawyers care?”
Perhaps we should not answer the question with regard to Coke. It is possible that Coke believed everything he wrote about British, German, Saxon, Norman, and English history. It is also possible that he did not care a fig whether there had or had not been a historical provable ancient constitution. It is hard to disagree with Donald R. Kelley’s conclusion that “Coke was not interested in ‘history’ at all.”327 Although we cannot say that Coke wanted English citizens to believe that there had been, in actual fact, an ancient constitution, we can be certain why he wanted them to accept at least the fiction of ancient constitutionalism. The jurisprudence of ancient constitutionalism— whether the ancient constitution was fact or fiction—was the jurisprudence of limited, mixed government, the jurisprudence of what Coke understood to be liberty.
As for the practitioners of ancient constitutionalism in the two centuries after Coke and Selden, we can be no more certain, but it is safer to venture a guess. For those lawyers of the seventeenth and eighteenth centuries the questions may not be whether they thought they were writing scientific history or whether they cared if their history was according to the historical method. The more revealing question is, why should they have cared?
Although it is not permissible to suggest that the historiographers of the ancient constitution could have been mistaken, it may be permissible to point out that there are questions that they appear to have overlooked. For it does seem that they forgot to ask what lawyers are and they forgot to consider what lawyers do. It is irrevocable error to miss the fact that lawyers are advocates and assume they are something else. The general assumption seems to have been that when they are not writing amateur history they do work akin to that of political theorists.328 Lawyers are not political theorists and political theory is not law, at least not common law.
We can forget custom, even though custom had more to do than did history with how the ancient constitution was argued in the seventeenth and eighteenth centuries. We may concentrate on history and ask again the question asked and answered before, whether ancient-constitution advocacy was history. If historiographers are correct that there is such a thing as “true” history, then there is also something quite its opposite, history that is “true only in a brief.”329 The same could be said for most “history” appearing in judicial opinions.
In Commonwealth v. Chapman in 1847, Chief Justice Lemuel Shaw observed that from the time of the first settlement of Salem and Boston to the Declaration of Independence, the people living in the colony of Massachusetts Bay “were governed and protected by the laws of England, so far as those laws were applicable to their state and condition.”330 The next lawyer appearing before Shaw’s court for whom Chapman was squarely and favorably on point might know that colonial Massachusetts law was only partly English law, that it contained much local custom and included some rules adapted from the law merchant. That lawyer would not be advised to write a “correct history.” Better for the purpose of winning the case at bar to copy the words of Chief Justice Shaw or just to cite Commonwealth v. Chapman.331
To return to the question being asked: if Shaw thought the history he was stating useful for the law that he wished to promulgate, did he have much reason to be troubled about proving historical accuracy? Mr. Justice Joseph Story had stated a similar historical conclusion some years before. “The common law of England,” he wrote in a United States Supreme Court decision, “is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”332 Story was pronouncing a rule of jurisprudence useful to federal judges willing to exercise judicial power—the purpose he had in mind. He was inviting judges to pick and choose among English common law precedents and decisions, adopting doctrines that would advance commercial growth and rejecting rules like the law of waste that might retard it. It is possible—barely possible—that Story believed that the principle he promulgated was based on sound history provable by the canons of the historical method. It is more likely that the historical soundness of the rule had little bearing on why he adopted it. The rule was desirable as law, and for that reason alone it probably made sense as history.
Today a judge writing a decision in, let us suppose, a native American land case, does not say to his law clerk, “What rule does history support?” Rather, the judge tells her, “We’re going to adopt such-and-such rule. Find me some history to support it.” It will not matter to the judge or his colleagues on the court the quality of the historical evidence that she finds. If the question at bar concerns the validity of a Plains Indians treaty, an authoritative pronouncement by Francis Paul Prucha will be all to the good. If the only “history” that supports the desired result is a quotation out of a book commissioned by the plaintiff Indian nation, a book that tells only the Indians’ side of events from the Indians’ prejudices, published locally in Pierre, South Dakota, and not known or respected by any scholar of native American history, it will not matter. What does matter is that there is a published statement to be quoted and the judges have no reason not to quote it. They use it, after all, not as a piece of historical evidence, but as authority.
Today’s judge in the native American land case is no different than Sir Edward Coke, William Prynne, or Robert Atkyns. Undoubtedly they all wanted their history to be scientific history because they wanted to persuade. But with questions of law there are other means of persuasion than the scholarship of another discipline. When a case was being argued, if it took forensic history to win, then forensic history would do. Bad history can produce good law as readily as can scientific history. Justice Hugo Black based the “incorporation doctrine” of the Fourteenth Amendment on what he possibly thought was a careful reading of the past. It was not careful at all according to Leonard W. Levy. It was, rather, selectively forensic. “Black did not merely mis-read history nor wishfully attribute to it a factual content that it did not possess; he mangled and manipulated it by artfully selecting facts from one side only, by generalizing from grossly inadequate ‘proof,’ by ignoring confusion and even contradictions in the minds of some of his key historical protagonists, and by assuming that silence on the part of their opponents signified acquiescence.”333 Had Levy talked to Black and had he convinced him that forensic history is not history, we may imagine Black would have been mildly interested. “What is important,” he might have replied, “is that it is now undisputable law that the states of the union must adhere to the principles of the Bill of Rights in the same way that the federal government must.” By the same token, if J. G. A. Pocock were able to communicate with Sir Edward Coke, we may suppose that Coke might express surprise that history has come to doubt the perfection of Saxon law and might offer some complicated explanation, having more to do with constitutional law than with history, about what he thought ancient constitutionalism should stand for. It is, however, unlikely that his answer would be much different in meaning than if he said, “So what? The ancient constitution may have been bad history but Charles I and James II learned that it was good law.”
Justice Black’s “incorporation doctrine” was based on what he claimed was the “original intention” of the framers of the Fourteenth Amendment. There are parallels linking ancient constitutionalism in the seventeenth and eighteenth centuries with today’s doctrine of “original intent.” Robert Brady’s 1684 political complaint that the theory of “Ancient Right and Privileges ” taught people “to prescribe against the Government for many Things they miscal [l] Fundamental Rights”334 was not that much different from the historian of 1988 calling for real history to “bury” the doctrine of original intent, “that badly battered theory of Constitutional interpretation.”335 Both ancient constitutionalism and original intentism came under criticism in their own days for reasons that were not likely to persuade their practitioners.
Critics of original intentism, like recent critics of ancient constitutionalism, confuse forensic history with academic history and concentrate on irrelevancies such as the unreliability of the record.336 Also like critics of ancient constitutionalism, they seem to have slight regard for the rule of law.
The principle of the rule of law is the striking connection between the ancient constitution and the doctrine of original intent. Both ancient constitutionalism and original intentism may be “bad” history, but both, if used with the discipline of the common law method, can be restraints on the will and pleasure of arbitrary decision, whether royal, legislative, or (especially in the case of original intent) judicial. “Original intent, sensibly defined, provides a limited Constitution that properly applies to new situations,” Robert Palmer pointed out in 1987. “Original intent analysis, however, will not yield a constitutional law that is equivalent to that now practiced, nor will it yield a constitutional law that is demonstrably superior in handling social needs or maximizing individual liberties. . . . The only sure consequence of original intent analysis is that it would require less judicial discretion and consequently more frequent resort to the people in the amendment process.”337 The same jurisprudential end was served by the correct use of ancient constitutionalism. When advocates and legislators in the eighteenth century made an attempt to tie decision and policy to the accepted, taught, time-honored tenets of the ancient constitution, they were saying that judgment should be guided and that law, not discretion, should rule. To use the ancient constitution in argument or in judgment could persuade an individual that impartial justice had been done or persuade a generation that a principled decision had been reached.
We need not be convinced. The historians will continue to carry the day, for historiography is their preserve and lawyers are always fair game. And yet, is history so narrow that there is no other measure than the norms of professional historiography? Something worth remembering happened in the England where those uneducated lawyers clung tenaciously to ancient constitutionalism during the seventeenth and eighteenth centuries; something setting that country and its constitutional tradition of rule by law apart from the continent of Europe.338 It is a wonder for historians to consider that those common lawyers were the only lawyers of Europe to keep viable the ancient constitution, if not as a source of liberty, at least as a restraining force on arbitrary government. A historical issue deserving attention is why these narrow-minded, ahistorical English lawyers were the only lawyers in Europe during the seventeenth and eighteenth centuries to have any idea what it might be like to live under the rule of law.
[1. ] Proclamation of Brigadier General Francis M’Lean, June 15, 1779, and Proclamation of Brigadier General Solmon Lovell, July 29, 1779, as printed in [John Calef], The Siege of Penobscot by the Rebels. . . . To which is subjoined a Postscript wherein a short Account of the Country of Penobscot is given (London, 1781), 26–27, 32.
[2. ] “The Resolutions as Recalled by Patrick Henry,” in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766, ed. Edmund S. Morgan (Chapel Hill, N.C., 1959), 48.
[3. ] “Demophilus” [George Bryan], The Genuine Principles of the Ancient Saxon, or English Constitution (Philadelphia, 1776), 41–46.
[4. ]Pennsylvania Gazette, May 15, 1776, p. 2, col. 1. Similarly, on the British constitution: “How different from, and how much superior to, our present form of government, was the Saxon, or old constitution of England” (Maryland Gazette, May 2, 1776, p. 2, col. 2).
[5. ] “Demophilus,” Genuine Principles (cited note 3), 17.
[6. ]The Critical Review: Or Annals of Literature by a Society of Gentlemen 20 (1765): 475.
[7. ] John Wilkes said: “I hold Magna Carta to be in full force in America as in Europe” (Edward Royle and James Walvin, English Radicals and Reformers, 1760–1848 [Lexington, Ky., 1982], 24). For an American contention that the ancient constitution was applicable to the colonies see “The British American, No. V,” Williamsburg, June 30, 1774, American Archives, Fourth Series (Washington, D.C., 1837), 1:495–98.
[8. ] Willoughby Bertie, earl of Abingdon, Dedication to the Collective Body of the People of England, in which the Source of our present Political Distractions are pointed out, and a Plan proposed for their Remedy and Redress (Oxford, 1780), xlii, footnote; Willoughby Bertie, earl of Abingdon, Thoughts on the Letter of Edmund Burke, Esq; to the Sheriffs of Bristol, on the Affairs of America, 6th ed. (Oxford, 1777).
[9. ] Speech of John Dunning, Commons Debates, May 4, 1774, Proceedings and Debates of the British Parliaments Respecting North America, 1754–1783, ed. R. C. Simmons and P. D. G. Thomas (White Plains, N.Y., 1985), 4:385. See, similarly, speech of John Dunning, Commons Debates, April 29, 1774, ibid., 323.
[10. ] Speech of Alexander Wedderburn, Commons Debates, May 4, 1774, ibid., 386.
[11. ] Speech of Edmund Burke, Commons Debates, May 4, 1774, ibid.
[12. ] Speech of Edmund Burke, Commons Debates, April 29, 1774, ibid., 324.
[13. ] James Otis, The Rights of the British Colonies Asserted and Proved (Boston, 1764), 31.
[14. ] Robert Lowth, A Sermon Preached Before the Honourable and Right Reverend Richard, Lord Bishop of Durham, the Honourable Henry Bathurst, One of the Justices of the Court of Common Pleas, and the Honourable Sir Joseph Yates, One of the Justices of the Court of King’s Bench; at the Assizes Holden at Durham, August 15, 1764, 2d ed. (Newcastle, England, 1764), 7–8.
[15. ] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), 80 (quoting James Otis).
[16. ] William Blackstone, Commentaries on the Laws of England. Book the Second (Oxford, 1766), 52.
[17. ] John Cartwright, The English Constitution Produced and Illustrated (London, 1823), 207.
[18. ]London Journal, no. 696, October 28, 1732, p. 1, col. 2.
[19. ] John Phillip Reid, “In Legitimate Stirps: The Concept of ‘Arbitrary,’ the Supremacy of Parliament, and the Coming of the American Revolution,” Hofstra Law Review 5 (Spring 1977): 459–99.
[20. ] Address of a Meeting of Freeholders of Hanover County to John Syme and Patrick Henry, July 20, 1774, Revolutionary Virginia: The Road to Independence— Volume I: Forming Thunderclouds and the First Convention, 1763–1774: A Documentary Record, comp. William J. Van Schreeven, ed. Robert L. Scribner ([Charlottesville], 1973), 140.
[21. ] Richard Bland, An Inquiry (1766), reprinted in ibid., 30–31.
[22. ]Craftsman, no. 470, July 5, 1735, quoted in Isaac Kramnick, Bolingbroke and His Circle: The Politics of Nostalgia in the Age of Walpole (Cambridge, Mass., 1968), 179.
[23. ]Craftsman 12, no. 405 (April 6, 1734): 182.
[24. ]Craftsman 12, no. 394 (January 19, 1733): 94–95.
[25. ]Craftsman 14, no. 467 (June 14, 1735): 20.
[26. ] J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (New York, 1985), 94.
[27. ] J. G. A. Pocock, Politics, Language and Time: Essays on Political Thought and History (New York, 1971), 229.
[28. ] J. G. A. Pocock, “Robert Brady, 1627–1700: A Cambridge Historian of the Restoration,” Cambridge Historical Journal 10 (1951): 190.
[29. ] Pocock, Politics, Language and Time (cited note 27), 209. See also Bailyn, Ideological Origins (cited note 15), 33; Brian P. Levack, The Civil Lawyers in England, 1603–1641 (Oxford, 1973), 146; F. Smith Fussner, The Historical Revolution: English Historical Writing and Thought, 1580–1640 (London, 1962), 318.
[30. ] Sir Roger Twysden, Certaine Considerations upon the Government of England, ed. John Mitchell Kemble (London, 1849), 45:23.
[31. ] Stephen A. Siegel, “The Aristotelian Basis of English Law,” New York University Law Review 56 (1981): 57.
[32. ] Christopher Hill, Intellectual Origins of the English Revolution (Oxford, 1965), 178.
[33. ] Isaac Kramnick, “Augustan Politics and English Historiography: The Debate on the English Past, 1730–35,” History and Theory 6 (1967): 37 (quoting David C. Douglas).
[34. ] Douglass Adair, Fame and the Founding Fathers, ed. Trevor Colbourn (New York, 1974), 62 n. 91; David C. Douglas, English Scholars, 1660–1730, 2d ed. (London, 1951), 119, 134; Christopher Hill, “The Norman Yoke,” in Christopher Hill, Puritanism and Revolution: Studies in Interpretation of the English Revolution of the 17th Century (London, 1958), 91.
[35. ] D. W. L. Earl, “Procrustean Feudalism: An Interpretative Dilemma in English Historical Narration, 1700–1725,” Historical Journal 19 (1976): 33. For other references to “myth” see, J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century; a Reissue with a Retrospect (Cambridge, England, 1987), 264 (see also 124–25); Pocock, Politics, Language and Time (cited note 27), 245; H. T. Dickinson, Liberty and Property: Political Ideology in Eighteenth-Century Britain (London, 1977), 141; Fussner, Historical Revolution (cited note 29), 28, 31–32; Kramnick, “Augustan Politics” (cited note 33), 38.
[36. ] J. C. Wilsher, “‘Power Follows Property’—Social and Economic Interpretation in British Historical Writing in the Eighteenth and Early Nineteenth Centuries,” Journal of Social History 16:3 (1983): 8; Donald R. Kelley, “A Rejoinder,” Past & Present 72 (1976): 145; Peter Laslett, “Book Review,” History 43 (1958): 143. Recently, even lawyers, who should know better, have called the ancient constitution, or forensic history invoking the Saxon past, a myth. David A. J. Richards, “Interpretation and Historiography,” Southern California Law Review 58 (1985): 500, 503–4; Thomas C. Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978): 852, 870.
[37. ] It is said that Butterfield learned that “what he had called whig history was really lawyers’ history, justifiably practised by them when thinking about the law in which the latest meaning of an event is the only meaning to matter, and in which new opinion abolishes its predecessor—neither of which is true in historians’ history. To a lawyer the doings of the past signify only inasmuch as they persist into and have life in the present. All very fine for them, but this teleological preoccupation, which ruins genuine history, they had imposed on the historians. What Butterfield had been attacking, though it took him some time to find it out, was the readiness with which from the seventeenth century onward historians had accepted the lawyers’ interpretation of the history of law, government and constitution” (G. R. Elton, “Herbert Butterfield and the Study of History,” Historical Journal 27 : 734–35). See also Donald R. Kelley, “History, English Law and the Renaissance,” Past & Present 65 (1974): 25; Laslett, “Book Review” (cited note 36), 143; Johann P. Sommerville, “History and Theory: The Norman Conquest in Early Stuart Political Thought,” Political Studies 34 (1986): 250. “Writers who support the opinions of Edward Coke ‘popularized’ the theme in such a tendentious manner that it became almost impossible to undertake a study of the Norman Conquest in a proper spirit of historical inquiry” (Douglas, English Scholars [cited note 34], 120).
[38. ] Philip Styles, “Politics and Historical Research in the Early Seventeenth Century,” in English Historical Scholarship in the Sixteenth and Seventeenth Centuries, ed. Levi Fox (Oxford, 1956), 62.
[39. ] Robert Livingston Schuyler, Parliament and the British Empire: Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction (New York, 1929), 3.
[40. ] Harold Hulme, “Charles I and the Constitution,” in Conflict in Stuart England: Essays in Honor of Wallace Notestein, ed. William Appleton Aiken and Basil Duke Henning ([Hamden, Conn.], 1970), 114.
[41. ] Herbert Butterfield, George III, Lord North, and the People, 1779–80 (London, 1949), 347.
[42. ] Kelley, “Rejoinder” (cited note 36), 143.
[43. ] Douglas, English Scholars (cited note 34), 130; David C. Douglas, The Norman Conquest and British Historians (Glasgow, 1946), 5; Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kans., 1985), 11. “Lawyers had played a large part in eroding the foundations of the throne, especially through a fundamental misreading, authoritative in tone, of the history of the common law by men like Coke and Selden (a misreading that was to skew the thinking of Thomas Jefferson and other, lesser men for a long time)” (Robert B. Kirtland, “Keep Your Eye on the Bastards! Or Sobering Reflections on the 150-Year Record of Early Virginia’s Attitude Toward Lawyers,” Toledo Law Review 14 : 691).
[44. ] It is said that “[t]hroughout the seventeenth and eighteenth centuries, every major piece of either historical or political thinking involved, if it did not consist in, the adoption of an attitude towards the ‘ancient constitution’” (J. G. A. Pocock, “The Origins of Study of the Past: A Comparative Approach,” Comparative Studies in Society and History 4 : 233).
[45. ] Robert Willman, “Blackstone and the ‘Theoretical Perfection’ of English Law in the Reign of Charles II,” Historical Journal 26 (1983): 42.
[46. ] Kelley, “History, English Law and the Renaissance” (cited note 37), 25.
[47. ] J. G. A. Pocock, The Myth of John Locke and the Obsession with Liberalism (Los Angeles, 1980), 3.
[48. ] Pocock, “Origins of Study” (cited note 44), 237.
[49. ] “Many of the constitutional investigations undertaken at this time [1660–1730] were of ephemeral interest, being designed in the first instance to serve the needs of contemporary controversy, but many more although undertaken in the same spirit embodied the result of substantial research” (Douglas, English Scholars [cited note 34], 16).
[50. ] J. G. A. Pocock, “The History of British Political Thought: The Creation of a Center,” Journal of British Studies 24 (July 1985): 290. Similarly the debate over the origin of parliament has recently been described as “a perennial battleground for political factions seeking charter myths to legitimate their contemporary positions” (Wilsher, “Power Follows Property” [cited note 36], 9). See also Douglas, English Scholars (cited note 34), 120; Hill, “The Norman Yoke” (cited note 34), 63; Corinne Comstock Weston, “Legal Sovereignty in the Brady Controversy,” Historical Journal 15 (1972): 412; Styles, “Politics and Research” (cited note 38), 61.
[51. ] “Parliament,” Scots Magazine 38 (1776): 15.
[52. ] Sir John Fortescue, De Laudibus Legum Angliae (London, 1775), 45–47.
[53. ] Styles, “Politics and Research” (cited note 38), 55.
[54. ] John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison, Wisc., 1986), 47–59.
[55. ] Arthur B. Ferguson, “Fortescue and the Renaissance: A Study in Transition,” Studies in the Renaissance 6 (1959): 189.
[56. ] J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, England, 1957), 36. “All the common-lawyers right through the [eighteenth] century . . . believed that the constitution they were so proud of was literally so old as to be without origins: ‘immemorial’ in the legal sense became eternal in the chronological sense” (Laslett, “Book Review” [cited note 36], 143). See also Pocock, Politics, Language and Time (cited note 27), 213; Earl, “Procrustean Feudalism” (cited note 35), 36; Styles, “Politics and Research” (cited note 38), 49–72; Dickinson, Liberty and Property (cited note 35), 63.
[57. ] Willman, “Blackstone and ‘Theoretical Perfection’” (cited note 45), 42. And for the seventeenth century: “[A] number of practising English lawyers in the period (such as Lord Ellesmere) were perfectly capable of contemplating historical change in the English law, and in a way the real puzzle is why men like Edward Coke did not do so” (Richard Tuck, Natural Rights Theories: Their Origin and Development [New York, 1979], 83). See also Pocock, Ancient Constitution Retrospect (cited note 35), 273–74.
[58. ] “The ancient feudal constitution contained the origins of English liberties and also of the mechanisms by which, in Montesquieu’s analysis, those liberties had been preserved. Properly understood, it was a rational structure which made sense in terms of modern political science. Blackstone appears to be the first writer to have attempted a historical account of the English constitution based upon such a synthesis of Spelman, Hale, and Montesquieu; the result, while not entirely convincing, is a major improvement on what had gone before” (Willman, “Blackstone and ‘Theoretical Perfection’” [cited note 45], 44).
[59. ] Kevin Sharpe, Sir Robert Cotton, 1586–1631: History and Politics in Early Modern England (Oxford, 1979), 23, 224–25; R. J. Schoeck, “The Elizabethan Society of Antiquaries and Men of Law,” Notes and Queries 199 (1954): 421.
[60. ] David Yale, “Hobbes and Hale on Law, Legislation and the Sovereign,” Cambridge Law Journal 31 (1972): 128. See also Kelley, “History, English Law and the Renaissance” (cited note 37), 65, 24ff.
[61. ] [Charles Leslie], The Constitution, Laws and Government of England, Vindicated in a Letter to the Reverend Mr. William Higden. . . . By a Natural Born Subject (London, 1709); Anonymous, The Detector Detected: or, the Danger to which our Constitution now lies Exposed, set in a True and manifest Light (London, 1743), 7; [John Campbell], Liberty and Right: Or, an Essay, Historical and Political, on the Constitution and Administration of Great Britain. Part I (London, 1747), 25; George St. Amand, An Historical Essay on the Legislative Power of England. Wherein the Origin of Both Houses of Parliament, their Antient Constitution . . . are related in a Chronological Order (London, 1725), preface (n.p.); Anonymous, A View of the Internal Policy of Great Britain (London, 1764), 11–13; [Adam Ferguson], Remarks on a Pamphlet Lately Published by Dr. Price, Intitled, Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America, &c. in a Letter from a Gentleman in the Country to a Member of Parliament (London, 1776), 40.
[62. ] [Allan Ramsay], An Historical Essay on the English Constitution: Or, An impartial Inquiry into the Elective Power of the People, from the first Establishment of the Saxons in this Kingdom. Wherein the Right of Parliament, to Tax our distant Provinces, is explained, and justified, upon such constitutional Principles as will afford an equal Security to the Colonists, as to their Brethren at Home (London, 1771), 12–13.
[63. ] William Paley, The Principles of Moral and Political Philosophy (London, 1785), 465–66; George Savile, marquis of Halifax, A Character of King Charles the Second: And Political, Moral and Miscellaneous Thoughts and Reflections (London, 1750), 68.
[64. ] As John Toland wrote in 1717. J. P. Kenyon, Revolution Principles: The Politics of Party, 1689–1720 (Cambridge, England, 1977), 197–98. Toland was not a lawyer. For lawyers, both common and Scots, see Francis Plowden, Jura Anglorum: The Rights of Englishmen (Dublin, 1792), 129; John Millar, Observations Concerning the Distinction of Ranks in Society, 2d ed. (London, 1773), 228–50; George Canning, A Letter to the Right Honourable Wills Earl of Hillsborough, on the Connection Between Great Britain and her American Colonies (Dublin, 1768), 24–25; Speech of Lord Mansfield, Lords Debates, February 3, 1766, in John Holliday, The Life of William Late Earl of Mansfield (London, 1797), 242–43.
[65. ] John Fortescue-Aland, “Dedication and Preface” to The Difference Between an Absolute and Limited Monarchy; As it more particularly regards the English Constitution. Being a Treatise written by Sir John Fortescue, Kt. Lord Chief Justice, and Lord High Chancellor of England, under King Henry VI. Faithfully Transcribed from the MS. Copy in the Bodleian Library, and Collated with three other MSS. (London, 1714), xxviii–xxix. See also [James Erskine, Lord Grange], The Late Excise Scheme Dissected: Or, an Exact Copy of the Late Bill, for Repealing several Subsidies, and an Impost, Now Payable on Tobacco, etc. (London, 1734), 7. For a recent discussion see Paul Lucas, “On Edmund Burke’s Doctrine of Prescription; Or, an Appeal from the New to the Old Lawyers,” Historical Journal 11 (1968): 56.
[66. ] [Henry Saint John, viscount Bolingbroke], A Dissertation Upon Parties: In Several Letters to Caleb D’Anvers, Esq., 2d ed. (London, 1735), 147–48.
[67. ] [John Reeves], Thoughts on the English Government. Addressed to the Quiet Good Sense of the People of England. In a Series of Letters. Letter the Second (London, 1799), 65–66.
[68. ] “[E]ven Coke . . . was far from being the blind idiot that some historians of ideas have tried to make him. In the end, his immemorial law boils down to general principles and maxims, while he knew that the positive law itself was capable of change and development” (G. R. Elton, “Review Essay,” History and Theory 20 : 97).
[69. ] Henry Fielding, An Enquiry into the Causes of the late Increase of Robbers, &c. With some Proposals for Remedying this Growing Evil (London, 1751), v.
[70. ] Matthew Hale, The History of the Common Law of England, ed. Charles M. Gray (Chicago, 1971), 40. Selden also wrote of the ancient constitution as an often repaired ship retaining its shape while refitted with new materials. Paul Christianson, “Young John Selden and the Ancient Constitution, ca. 1610–18,” Proceedings of the American Philosophical Society 128 (1984): 307. For Hale and history see Yale, “Hobbes and Hale” (cited note 60), 127.
[71. ] St. Amand, Historical Essay (cited note 61), preface.
[72. ] Fortescue-Aland, “Dedication and Preface” (cited note 65), xiii–xiv.
[73. ] Edward King, An Essay on the English Constitution and Government (London, 1767), 33.
[74. ] “Book Review,” The Critical Review: Or Annals of Literature by a Society of Gentlemen 22 (1766): 363 (quoting Edward King).
[75. ] Edward Wynne, Eunomus: or, Dialogues Concerning the Law and Constitution of England. With an Essay on Dialogue, 2d ed. (London, 1785), 3:327. See also Josiah Tucker, A Letter to Edmund Burke, Esq; Member of Parliament for the City of Bristol, and Agent for the Colony of New York, &c. In Answer to His Printed Speech, Said to be Spoken in the House of Commons on the Twenty-Second of March, 1775, 2d ed. (Glocester, England, 1775), 31–32; Anonymous, A Letter to Doctor Tucker on his Proposal of a Separation Between Great Britain and her American Colonies (London, 1774), 7; King, Essay (cited note 73), 3; Lowth, A Sermon Preached (cited note 14), 8.
[76. ] Richard Wooddeson, Elements of Jurisprudence Treated of in the Preliminary Part of a Course of Lectures on the Laws of England (Dublin, 1792), 143.
[77. ] Richard Wooddeson, A Systematical View of the Laws of England; as Treated of in a Course of Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelmas Term, 1777 (Dublin, 1792), 1:28.
[78. ] Wooddeson, Elements of Jurisprudence (cited note 76), 70.
[79. ] Samuel Squire, An Enquiry into the Foundation of the English Constitution; or, An Historical Essay upon the Anglo-Saxon Government Both in Germany and England (London, 1745), 81–82.
[80. ] “History well wrote is the easiest and most effectual Teacher of Moral Science” (London Journal, no. 696, October 28, 1732, p. 1, col. 1). John Jay stated the theme at its simplest: “The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons” (“The Federalist No. 5,” in The Federalist, ed. Jacob E. Cooke [Middletown, Conn., 1961], 24). See also T. Rutherforth, Institutes of Natural Law Being the substance of a Course of Lectures on Grotius de Jure Belli et Pacis Read in S. Johns College Cambridge (Cambridge, England, 1756), 2:110; Martyn P. Thompson, “The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution,” American Historical Review 91 (1986): 1112.
[81. ] Gilbert Stuart, An Historical Dissertation Concerning the Antiquity of the English Constitution, 2d ed. (London, 1770), 290.
[82. ] [Reeves], Thoughts on English Government (cited note 67), 8–9.
[83. ] Francis Gregor, “Preface” to Sir John Fortescue, De Laudibus Legum Angliae, new ed. (London, 1775), iv. “If Men would apply Themselves more than They generally do to the reading of antient [Roman] History, They would justly be alarm’d at our present Circumstances” (Craftsman 12, no. 413 [June 1, 1734]: 229). See also Thomas Herring, A Sermon Preached before the House of Lords, in the Abbey-Church of Westminster, on Wednesday Jan. 30, 1739–40. Being the Day appointed to be observed as the Day of the Martyrdom of King Charles I (London, 1740), 23.
[84. ] [Arthur Lee], A Speech, intended to have been Delivered in the House of Commons, In Support of the Petition from the General Congress at Philadelphia (London, 1775), 13.
[85. ] [Thomas Rymer], A Prospect of Government in Europe, and Civil Policy. Shewing the Antiquity, Power, Decay of Parliaments (London, 1681), 66. A hundred years later a survey starting with 1264 concluded: “I have proved, that the constitution, through a series of years, has been arriving at that perfection which it attained at the revolution,” ([Francis Basset, Baron Basset of Stratton], Thoughts on Equal Representation [London, 1783], 12).
[86. ] “It can be shown, . . . that the use of history in the debates both in the Philadelphia Convention and in the state ratifying conventions is not mere rhetorical-historical window dressing, concealing substantially greedy motives of class and property. The speakers were making a genuinely ‘scientific’ attempt to discover the ‘constant and universal principles’ of any republican government in regard to liberty, justice, and stability” (Adair, Fame and the Founding Fathers [cited note 34], 97). See also Henry Steele Commager, Jefferson, Nationalism, and the Enlightenment (New York, 1975), 127, 144–45, 150, and “America and the Enlightenment,” in The Development of a Revolutionary Mentality (Washington, D.C., 1972), 27.
[87. ] See discussion of James Madison’s use of history in Adair, Fame and the Founding Fathers (cited note 34), 134ff.
[88. ] “History was the main field of interest. If law is associated with history— and the colonists so regarded it—history emerges as the largest single category” of what was read by eighteenth-century Americans (H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution [Chapel Hill, N.C., 1965], 20).
[89. ] Ibid., 25.
[90. ] Ibid., 84. Somewhat similarly see 25.
[91. ] “By ‘law-office’ history, I mean the selection of data favorable to the position being advanced without regard or concern for contradictory data or proper evaluation of the relevance of the data proffered” (Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” Supreme Court Review 1965 : 122 n. 13).
[92. ] Dallin H. Oaks, “Legal History in the High Court—Habeas Corpus,” Michigan Law Review 64 (1966): 451.
[93. ]London Journal, no. 696, October 28, 1732, p. 1, col. 1.
[94. ] Quoted in John P. Roche, “The Convention as a Case Study in Democratic Politics,” in Essays on the Making of the Constitution, ed. Leonard W. Levy, 2d ed. (New York, 1987), 180.
[95. ] Douglas, English Scholars (cited note 34), 19; Sharpe, Sir Robert Cotton (cited note 59), 104–5, 248; R. J. Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688–1863 (Cambridge, England, 1987), 28–30, 56–57.
[96. ] Squire, Enquiry into the Foundation (cited note 79), 3–4.
[97. ] “It is always to be lamented when men are driven to search into the foundations of the commonwealth. It is certainly necessary to resort to the theory of your government, whenever you propose any alteration in the frame of it, whether that alteration means the revival of some former antiquated and forsaken constitution of state, or the introduction of some new improvement in the commonwealth” (speech of Edmund Burke, Commons Debates, May 8, 1780, The Parliamentary History of England, From the Earliest Period to the Year 1803 [London, 1814], 21:603–4). See also Pocock, Virtue, Commerce, and History (cited note 26), 301–2.
[98. ] [John Hervey, Lord Hervey of Ickworth], Ancient and Modern Liberty Stated and Compar’d (London, 1734), 4–5.
[99. ] [Bolingbroke], A Dissertation Upon Parties (cited note 66), 102.
[100. ] Ibid., 144.
[101. ] Henry Fielding, A Charge Delivered to the Grand Jury, at the Sessions of the Peace Held for the City and Liberty of Westminster, etc. (Dublin, 1749), 16.
[102. ] John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago, 1988), 24. For a more detailed discussion (of the ownership and purchase of civil rights, not just liberty), see Reid, Constitutional History of the American Revolution (cited note 54), 96–131 (for purchase by blood, see esp. 127–29).
[103. ] Even though that premise was often stated: “Besides, says the author of the letter on General Warrants, an Act of Parliament newly made, is not so venerable in the eyes of the world, or so secure against future alterations, as the old common law of the land, which has been from time immemorial, the inheritance of every Englishman, and is on account of its antiquity, held, as it were sacred in every man’s mind” ([Richard Glover], Considerations on the Attorney-General’s Proposition for a Bill for the Establishment of Peace with America [London, 1782], 8).
[104. ] [Robert, viscount Molesworth], “Preface” to Francis Hotman, Franco-Gallia: Or, an Account of the Ancient Free State of France, and Most other Parts of Europe, before the Loss of their Liberties, trans. Robert, viscount Molesworth (London, 1711), ii–iii.
[105. ] John Phillip Reid, “In the Taught Tradition: The Meaning of Law in Massachusetts-Bay Two-Hundred Years Ago,” Suffolk University Law Review 14 (Summer 1980): 931–74.
[106. ] Fortescue-Aland, “Dedication and Preface” (cited note 65), xv.
[107. ] [John Wilkes], A Letter to Samuel Johnson, L.L.D. ([London], 1770), 14–15.
[108. ] Digges quoted in William Prynne, The First and Second Part of a Seasonable, Legal, and Historicall Vindication, and Chronological Collection of the Good, Old, Fundamentall Liberties, Franchises, Rights, Laws of all English Freemen. . . . Collected, recommended to the whole English Nation, as the best Legacy he can leave Them (London, 1655), 18.
[109. ] “The Word Parliament made such a terrible sound as wou’d Intimidate a Person of small Resolution and Courage, and make him forego the Argument even thro’ Fear. A Stranger to the Controversy wou’d Imagine, that Parliaments were as Ancient at least, as the Flood, and that a House of Commons was preser’d in Noah’s Ark” (Mathias Earbery, The Old English Constitution Vindicated, and Set in a True Light [London, 1717], i).
[110. ] See, e.g., William Prynne, The Second Part of a Seasonable Legal and Historical Vindication, and Chronological Collection of the Good old Fundamental Liberties. . . . (London, 1655), 3–14. The appeal was frequently made in grand-jury charges. Maurice Shelton, A Charge Given to the Grand-Jury, at the General Quarter-Sessions of the Peace, Holden at St. Edmunds-Bury for the Liberty thereof; In the County of Suffolk: On the 11th of October, An. Dom. 1725 (London, 1726), 17.
[111. ] Gregor, “Preface” to Fortescue, De Laudibus Legum Angliae (cited note 83), v.
[112. ] There is little merit to the suggestion that in the early seventeenth century “the antiquity of a system of positive law was proof of its conformity to the eternal Law of Reason” (Styles, “Politics and Research” [cited note 38], 54).
[113. ] [Edward Cook], Argumentum Anti-Normannicum: or an Argument Proving, From Ancient Histories and Records, that William, Duke of Normandy Made no absolute Conquest of England, by the Sword; in the sense of our Modern Writers (London, 1682), xviii.
[114. ] Speech of Lord Keeper Finch, November 3, 1640, printed in John Rush-worth, Historical Collections: The Third Part; in Two Volumes (London, 1692), 1:13.
[115. ] Reed Browning, Political and Constitutional Ideas of the Court Whigs (Baton Rouge, La., 1982), 38. Nor is it very meaningful to conclude that change was “generally suspected . . . because change did threaten the character of the state” (J. R. Pole, The Gift of Government: Political Responsibility from the English Restoration to American Independence [Athens, Ga., 1983], 4). What change threatened was not the character of the state but the authority of law.
[116. ] Pocock, Politics, Language and Time (cited note 27), 82.
[117. ] Although legal arguments were given strength by time. “[T]here is no legal argument which hath such force in our courts of law, as those which are drawn from the words of antient writs” ([Daines Barrington], Observations on the Statutes, Chiefly the more Ancient from Magna Charta to the Twenty-first of James First, ch. XXVII. With an Appendix; Being a Proposal for new modelling the Statutes [London, 1766], 78).
[118. ] Shelton, Charge to the Grand-Jury (cited note 110), 21.
[119. ] “Book Review,” The Critical Review: Or Annals of Literature by a Society of Gentlemen 22 (1766): 362–63.
[120. ] George Lawson, Politica Sacra & Civilis: Or, a Model of Civil and Ecclesiastical Government, 2d ed. (London, 1689), 148.
[121. ] Francis Hargrave, “Preface” to Sir Matthew Hale, The Jurisdiction of the Lords House, or Parliament, Considered According to Antient Records (London, 1796), iv–v.
[122. ] [John Somers, Baron Somers], A Brief History of the Succession of the Crown of England, &c. Collected out of the Records, and the most Authentick Historians (London, 1680), 13.
[123. ] Sir Robert Atkyns, The Power, Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons Asserted (London, 1689), 17–18.
[124. ] In another work, Prynne proved English fundamental laws and rights “in a Chronologicall way ” by surveying “the ancient Britons, Saxons, Danes, Normans, and English Kings, till our present times; plentifully, undeniably evidencing, declaring, vindicating, asserting, establishing, perpetuating these Fundamentall, Hereditary Rights, Liberties, Priviledges, Franchises, Customes, Lawes” (Second Part of a Seasonable, Legal, and Historical Vindication [cited note 110], 1).
[125. ] William Prynne, A Plea for the Lords, and House of Peers: Or, a full, necessary, seasonable, enlarged Vindication, of the just, antient hereditary Right of the Lords, Peers, and Barons of this Realm to sit, vote, judge, in all the Parliaments of England (London, 1658), “To the Reader,” .
[126. ] Ibid., 5.
[127. ] Ibid.
[128. ] Ibid., 14–15.
[129. ] “[I]f the Laws and Customs of the Realm were, that the King himself might call two Knights, Citizens and Burgesses to Parliament, such as himself should nominate in his Writ out of every County, City and Borough, without the Freeholders, Citizens, and Burgesses election of them, by a common agreement and consent to such a Law and usage made by their Ancestors, and submitted and consented to for some ages without repeal, this Law and Custom were sufficient to make such Knights, Citizens and Burgesses lawfull Members of Parliament, obliging their posterity whiles unrepealed” (ibid., 15).
[130. ] Ibid., 18–19.
[131. ] For a recent discussion of this point of law see William M. Lamont, Marginal Prynne, 1600–1669 (London, 1963), 179–80.
[132. ] Prynne, Plea for Lords (cited note 125), 19.
[133. ] Ibid., 21.
[134. ] Ibid.
[135. ] In the year of the Declaration of Independence it was asserted that there was a popular legislative power above parliament that still potentially existed: “Our ancestors formerly assembled and resolved upon their laws and their measures in their collective capacity: their princes and their leaders were as evidently commissioned in the execution of them, as one private person is by another:the power then reverted to the body and on occasion issued from it again. This was the first origin of our form of government; where we are to seek, where we shall find and by which we shall comprehend its real, original nature and essence. Whatever changes or variations have through necessity and the mutability of things since been made or happened in its outward form and circumstances, these have all referred and related to its primitive inherent principle” ([Matthew Robinson-Morris, second Baron Rokeby], A Further Examination of our Present American Measures and of the Reasons and the Principles on which they are founded [Bath, 1776], 100).
[136. ] [Ramsay], Historical Essay (cited note 62), 144.
[137. ] Pocock, “Origins of Study” (cited note 44), 237.
[138. ] Atkyns, Power, Jurisdiction and Priviledge (cited note 123), 17. Edmund Burke also overstated the principle when he claimed, “Our Constitution is a prescriptive constitution; it is a constitution whose sole authority is that it has existed time out of mind” (H. T. Dickinson, “The Eighteenth-Century Debate on the Sovereignty of Parliament,” Transactions of the Royal Historical Society, 5th Series, 26 : 199).
[139. ] Quoted in Pocock, Politics, Language and Time (cited note 27), 226. In the eighteenth century a fundamental civil right was the right to government. Reid, Constitutional History of the American Revolution (cited note 54), 39–46.
[140. ] Wooddeson, Elements of Jurisprudence (cited note 76), 46.
[141. ] In the eighteenth century, “[m]en of property . . . knew that much English law was based on custom, precedent and prescription rather than on the deliberate, conscious decisions of an absolute monarch or a sovereign legislature. They also knew that many property rights were based on possession and long prescriptive right rather than on legal documents. Thus, in both the field of common law and the sphere of property rights, it was recognized that an appeal to prescription could make good a lack of documentary legal evidence” (Dickinson, “Eighteenth-Century Debate” [cited note 138], 197).
[142. ] Wooddeson, Elements of Jurisprudence (cited note 76), 35–36.
[143. ] John Adams in Boston Gazette, February 1, 1773, reprinted in The Works of John Adams, Second President of the United States: With a Life of the Author, Notes and Illustrations, ed. Charles Francis Adams, 10 vols. (Boston, 1850–1856), 3:540.
[144. ] John Adams in Boston Gazette, January 18, 1773, reprinted in Works, 3:526–28. Adams’s lesson, that custom made law, is one that some twentieth-century historians have indicated is not worth keeping in mind, causing them to make misleading statements. For example, it was said of the dispute during the reign of James I concerning the antiquity of the House of Commons: “The statements of the anti-royalist party contain frequent references to the antiquity of the House. And nothing can have served better than this assumption to convince men that the privileges of Parliament were not of royal grace but of inherent right” (Herbert Butterfield, The Englishman and His History [Cambridge, England, 1944], 47). Butterfield’s history is correct, but the implication misses the mark of accuracy. The evidence of antiquity was argued not to “convince” but to prove the constitutionality of the privilege.
[145. ] Adams in Boston Gazette, February 1, 1773, reprinted in Works, 3:546.
[146. ] But see Earbery, Old Constitution Vindicated (cited note 109), xii, 6–7. Whigs, of course, still made much of the royalist claims of passive obedience preached in James II’s reign. John Withers, The Whigs Vindicated, the Objections that are commonly brought against them Answer’d, and the Present Ministry Prov’d to be the best Friends to the Church, the Monarchy, the Lasting Peace, and real Welfare of England, 6th ed. (London, 1715), 5.
[147. ] A recent historian, writing of the “prejudice” and “[t]he chauvinism of common lawyers,” has suggested that in the seventeenth century “the enemies at the gates, of course, were those twin menaces, civil and canon law,” which common lawyers believed was the law of arbitrary tyranny (Kelley, “History, English Law and the Renaissance” [cited note 37], 37–38). Whether true or not for the seventeenth century, Kelley’s statement is not correct for the eighteenth, when common lawyers were not concerned with civil law but theorized that it and canon law were rendered harmless by merging into immemorial custom. “Many of our present ecclesiastical laws are undoubtedly of foreign extraction, and some are entirely of English origin. But now they all alike depend, as to their general binding authority, on the same foundations as the whole body of our English laws, immemorial custom, and express act of parliament” (Wooddeson, Elements of Jurisprudence [cited note 76], 155–56).
[148. ] [John Shute Barrington, first viscount Barrington], The Revolution and Anti-Revolution Principles Stated and Compar’d, the Constitution Explain’d and Vindicated, and the Justice and Necessity of Excluding the Pretender, Maintain’d against the Book Entituled, Hereditary Right of the Crown of England Asserted, 2d ed. (London, 1714), 68.
[149. ] Shelton, Charge to the Grand-Jury (cited note 110), 10–11. The Westminster grand jury was reminded that “the Patriarchal Scheme, and the Doctrines of indefeisible, unalienable Hereditary Right are of mere modern Invention. . . . So that you see, the Title of his present Majesty King GEORGE is unquestionable, and most agreeable to our Ancient Constitution and Laws” (charge of April 24, 1728, Sir John Gonson’s Five Charges to Several Grand Juries . . . , 4th ed. [London, n.d.], 20).
[150. ] William Petyt, Jus Parliamentarium: or, the Ancient Power, Jurisdiction, Rights and Liberties, of the Most High Court of Parliament, Revived and Asserted (London, 1739), preface.
[151. ] [William Jones], The Constitutional Criterion: By a Member of the University of Cambridge (London, 1768), 2–3.
[152. ] Ibid., 3–4.
[153. ] Ibid., 3.
[154. ] J. Burgh, Political Disquisitions; or, An Enquiry into public Errors, Defects, and Abuses. Illustrated by, and established upon Facts and Remarks, extracted from a Variety of Authors, Ancient and Modern (Philadelphia, 1775), 3:271.
[155. ] J. G. A. Pocock, “Machiavelli, Harrington and English Political Ideologies in the Eighteenth Century,” William and Mary Quarterly 22 (1965): 572; Pocock, Politics, Language and Time (cited note 27), 133.
[156. ] Reid, “In Legitimate Stirps” (cited note 19).
[157. ] Jared Eliot, Give Cesar his Due. Or, the Obligation that Subjects are under to their Civil Rulers, As was shewed in a Sermon Preach’d before the General Assembly of the Colony of Connecticut at Hartford, May the 11th, 1738. The Day for the Election of the Honourable the Governour, the Deputy-Governour, and the Worshipful Assistants (New London, Conn., 1738), 36 n.
[158. ] [Bolingbroke], A Dissertation Upon Parties (cited note 66), 159.
[159. ] John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus, ed. Peter Laslett, 2d ed. (Cambridge, England, 1967), book 2, sec. 139.
[160. ] Browning, Political and Constitutional Ideas (cited note 115), 196.
[161. ] [John] Arbuthnot, The Freeholder’s Political Cathechism: Written by Dr. Arbuthnot ([London], 1769), 9.
[162. ] Reid, Concept of Liberty (cited note 102), 55–67, 74–83.
[163. ] George Campbell, The Nature, Extent, and Importance, of the Duty of Allegiance: A Sermon Preached at Aberdeen, December 12, 1776, Being the Fast Day Appointed by the King, on Account of the Rebellion in America (Aberdeen, Scotland, 1777), 24–25. This sermon got Campbell into trouble with the authorities, and he thought it advisable to publish a second edition, which is available in many more research libraries than the first. In it the passage quoted is altered in wording but not in meaning. George Campbell, The Nature, Extent, and Importance, of the Duty of Allegiance: A Sermon, Preached at Aberdeen, December 12, 1776, Being the Fast Day Appointed by the King, on Account of the Rebellion in America, 2d ed. (Aberdeen, Scotland, 1778), 41–42, 43.
[164. ] Eliot, Give Cesar his Due (cited note 157), 36 n.
[165. ] It has been suggested that during the early seventeenth century, the ancient constitution was not a doctrine opposed “to the royal sovereignty or even prerogative” (Pocock, Ancient Constitution Retrospect [cited note 35], 270). The issue may be whether it opposed arbitrary prerogativism and not prerogative power exercised by law. It should be recognized, however, that exponents of prerogativism could speak as if championing the rule of law through immutable ancient liberties. The earl of Strafford is quoted as saying on behalf of the Petition of Right in 1628: “We must vindicate—what? New things? No; our ancient lawful and vital liberties, by reinforcing the ancient laws made by our ancestors, by setting such a stamp on them as no licentious spirit shall dare hereafter to enter upon them” (Gerald M. Straka, “Sixteen Eighty-eight as the Year One: Eighteenth Century Attitudes Towards the Glorious Revolution,” Studies in Eighteenth-Century Culture 1 : 149–50).
[166. ] Pocock, Ancient Constitution (cited note 56), 51.
[167. ] Quoted in Fussner, Historical Revolution (cited note 29), 135.
[168. ] Anonymous, A Defence of English History, Against the Misrepresentations of M. de Rapin Thoyras, in his History of England, Now Publishing Weekly (London, 1734), 11.
[169. ] “Grand Jury Charge,” Henry Booth, earl of Warrington, The Works of the Right Honourable Henry late L[ord] Delamer, and Earl of Warrington (London, 1694), 649 (see also 655, 388).
[170. ] [William Atwood], The Antiquity and Justice of an Oath of Abjuration. In Answer to a Treatise Entituled The Case of an Oath of Abjuration Considered (London, 1694), 83. See also Anonymous, An Enquiry into the Nature and Obligation of Legal Rights. With Respect to the Popular Pleas of the Late K. James’s Remaining Right to the Crown (London, 1693), 16; [Barrington], Revolution and Anti-Revolution Principles (cited note 148), 55; Pocock, Ancient Constitution (cited note 56), 16.
[171. ] Samuel Johnson, Notes Upon the Phoenix Edition of the Pastoral Letter. Part I (London, 1694), 57.
[172. ] Ibid., 22. “And again all Englishmen that have any tolerable knowledg[e] of the Constitution are sensible, that the Office of the King depends wholly upon the Law both in its making and in its being, that a King as he is Impowered by Law must act by Law; and therefore they must needs know at first sight, that a King whose Authority is Antecedent to the Law, Independent of the Law, and Superiour to the Law . . . is an invented and studied King, whom the English law knows not” (ibid., 57–58). See also Anonymous, Enquiry into the Nature (cited note 170), 3, 13.
[173. ] “The great Security of the Prince consists in this, That the same Medium which secures the Peoples Rights, secures his Prerogative ” (London Journal, no. 722, April 28, 1733, p. 1, col. 2).
[174. ] Speech of Thomas Hedley, Commons Debates, June 28, 1610, in Proceedings in Parliament 1610, ed. Elizabeth Read Foster (New Haven, Conn., 1966), 2:173–74.
[175. ] Bertie, Thoughts on the Letter of Edmund Burke (cited note 8), li. For the strongest reaction to Blackstone, by an Irish barrister, see [Charles Francis Sheridan], Observations on the Doctrine laid down by Sir William Blackstone, Respecting the extent of the Power of the British Parliament, Particularly with relation to Ireland. In a letter to Sir William Blackstone, with a Postscript Addressed to Lord North (Dublin, 1779).
[176. ] Reid, Concept of Liberty (cited note 102), 91–97. Among the radicals of Britain the new law of parliamentary sovereignty was resisted long after it was law and the old law was still appealed to. “Trial by Jury, as an element of the Constitution, was, consequently, antecedent to all Law, and superior to all Law, as no law can abolish it. It was even centuries anterior to Lawyers by profession” (Cartwright, The English Constitution [cited note 17], 138).
[177. ] Pocock, “Machiavelli” (cited note 155), 571–72. 178.
[178. ] True, some practitioners of ancient constitutionalism used the word history but, as with Bolingbroke in the following sentence, the appeal was generally to custom: “When I say that Parliaments were intirely built on the same general Principles, as well as directed to the same Purposes, as they still are, I shall be justfy’d by the whole Tenor of our History, and of our Law ” (A Dissertation Upon Parties [cited note 66], 198). See also Sommerville, “History and Theory” (cited note 37), 254.
[179. ] Custom “quietly passes over obsolete laws, which sink into oblivion, and die peacefully, but the law itself remains young, always in the belief that it is old. Yet it is not old; rather it is a perpetual grafting of new on to old law, a fresh stream of contemporary law springing out of the creative wells of the subconscious” (Fritz Kern, Kingship and Law in the Middle Ages, trans. S. B. Chrimes [Oxford, 1970], 179). See also M. T. Clanchy, “Remembering the Past and the Good Old Law,” History, new series 55 (1970): 172.
[180. ] “Power” was Chief Justice Hale’s word: “Usage and Custom generally receiv’d, do Obtinere vim Legis. . . . This is that which directs Discents, has settled some ancient Ceremonies and Solemnities in Conveyances, Wills and Deeds, and in many more Particulars” (Hale, History of Common Law [cited note 70], 44).
[181. ] Wooddeson, Elements of Jurisprudence (cited note 76), 35, 47. It was not a matter of how well an institution worked, but of public approval of its force and operation.
[182. ] Sir Robert Atkyns, An Enquiry into the Power of Dispensing with Penal Statutes (London, 1689), 6. Fortescue-Aland also meant the fiction of implied consent when he wrote: “Besides, the Laws themselves gain Strength and Authority by the Antiquity of their Profession. The longer any Laws continue in Use and Practice, the stronger and more forcible is the Argument for their Goodness and Excellence” (“Dedication and Preface” [cited note 65], xv).
[183. ] [Samuel Johnson], A History and Defence of Magna Charta (London, 1769), 3–4 (quoting Fortescue). For the contrary contention that this was historical proof, see Quentin Skinner, “History and Ideology in the English Revolution,” Historical Journal 8 (1965): 174.
[184. ] Prynne, Plea for Lords (cited note 125), 5.
[185. ] Quoted in Pocock, Politics, Language and Time (cited note 27), 227.
[186. ] “The artifice [of artificial reason] is simply the law: there are cases for which a lawyer can draw a solution from positive legal sources. Such a legal solution will be better than the solution an ideally wise person would reach with only natural reason to depend on. That is true because the law is a collective product, a repository of many wise men’s thinking about related problems over a long stretch of time. The value of a correct legal solution will sometimes not be evident to a critic whose cognitive and moral acuity, however distinguished, are only his. It is permissible to toy a bit with language here and say that what seems reasonable to one person, or one age, will not typically be as rational as the law, whose rationality is not fully visible in any single perspective. When one has laid hold of this truth and presumed in favor of the law’s rationality, one will of course begin to see it” (Charles Gray, “Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke,” in Culture and Politics from Puritanism to the Enlightenment, ed. Perez Zagorin [Berkeley, Calif., 1980], 31).
[187. ] Pocock, Politics, Language and Time (cited note 27), 214–15; Pocock, Ancient Constitution (cited note 56), 173.
[188. ] Thus it was reasoned that parliament had the authority to legislate for and to tax the colonies because, even if the right had never before been exercised, “it is essential to government, founded in justice and equity, and in the law of nature and nations” (Alexander Carlyle, The Justice and Necessity of the War with our American Colonies Examined. A Sermon Preached at Inveresk, December 12, 1776, Being the Fast-Day Appointed by the King, on account of the American Rebellion [Edinburgh, 1777], 10).
[189. ] [Richard Hurd], Moral and Political Dialogues Between Divers Eminent Persons of the Past and Present Age; With Critical and Explanatory Notes, 2d ed. (London, 1760), 224.
[190. ] [William Dowdeswell], The Sentiments of an English Freeholder, on the Late Decision of the Middlesex Election (London, 1769), 8.
[191. ] J. R. Dinwiddy, Christopher Wyvill and Reform, 1790–1820 (York, England, 1971), 2.
[192. ] Cartwright, The English Constitution (cited note 17), 164 n. 7.
[193. ] It is not suggested that there have not been historians who have pointed out that “history” was a weapon in the struggle over sovereignty: Weston, “Legal Sovereignty” (cited note 50), 417; M. P. Thompson, “The Idea of Conquest in the Controversies over the 1688 Revolution,” Journal of the History of Ideas 38 (1977): 37–38; Styles, “Politics and Research” (cited note 38), 54.
[194. ] Nathaniel Bacon, An Historical and Political Discourse of the Laws & Government of England, from the First Times to the End of the Reign of Queen Elizabeth (London, 1689), “Advertisement” to “First Part” (n.p.).
[195. ] [Nathaniel Bacon], The Continuation of the Historical & Political Discourse of the Laws & Government of England, Until the end of the Reign of Queen Elizabeth (London, 1682), 179. The “Mens Pens” were royalist “histories” that rejected Cokeian constitutional law, claiming that the crown created parliament at its pleasure. Earl, “Procrustean Feudalism” (cited note 35), 35.
[196. ] He said “of the Saxon Commonwealth”: “Afar off it seems a Monarchy, but in approach discovers more of a Democracy,” and “It was a beautiful composure, mutually dependent in every part from the Crown to the Clown; the Magistrates being all choice men, and the King the choicest of the chosen: election being the birth of esteem, and that of merit” (Bacon, Discourse [cited note 194], 69, 70).
[197. ] John Starkey, “Advertisement” to ibid. (n.p.).
[198. ] Edward Cook, Argumentum Anti-Normannicum: or an Argument Proving, from Ancient Histories and Records, that William, Duke of Normandy Made no absolute Conquest of England, by the Sword; in the sense of our Modern Writers (London, 1682).
[199. ] Peter Heylyn, The Stumbling-Block of Disobedience and Rebellion, Cunningly laid by Calvin in the Subjects way, Discovered, Censured, and Removed (London, 1658), 267. “And so this strand of systematic and unashamed absolutist theorizing spanned the Interregnum years, a decade before gaining its final articulation by Hobbes, a generation before gaining its full historical dress from Dr. Brady” (Skinner, “History and Ideology” [cited note 183], 169).
[200. ] Quoted in Earl, “Procrustean Feudalism” (cited note 35), 38. Earl says Tyrrell was commenting on royalist history, but it is evident he was commenting on constitutional law.
[201. ] Atkyns, Power, Jurisdiction and Priviledge (cited note 123), 14. In litigation Atkyns argued: “I shall clearly prove, that these [House of Commons] Powers and Privileges were indeed their ancient Right and Inheritance. Which they cannot be, unless that House, or the Commons by their Representative, have been ever from the beginning of the Government a part and member of the Parliament” (Sir Robert Atkyns, Parliamentary and Political Tracts [London, 1734], 31). Atkyns was arguing for the defense in the prosecution of Sir William Williams. Surprisingly, as counsel he even assumed the burden of historical proof: “To support the power and privilege of the House of Commons, as being an essential part of the parliament; it is absolutely necessary to make it out against these innovators, that the House of Commons have ever been a part of the parliament, and that they were long before 49 H. 3. Or otherwise they are but precarious in their power and privileges, and enjoy them but of grace” (Rex v. Williams, 13 State Trials 1369, 1392 [1684–95]).
[202. ] Prynne, First and Second Part of a Seasonable, Legal, and Historicall Vindication (cited note 108), 9. In the “Epistle” of the work discussed earlier, in which he defended forensically the inherent jurisdiction of the House of Lords, Prynne stated he was the Lords’s “advocate.” The “seditious Design ” of the Commons to legislate without concurrence of the upper House “has ingaged me (the unablest of many) out of my great affection to Royalty and the real Nobility, and a deep sence of the present and tottering condition of our Kingdom, Parliament (the very pillars and foundation whereof are now not only shaken, but almost quite subverted) voluntarily, without any Fee at all, to become your Honors Advocate, to plead your Cause, and vindicate your undoubted hereditary right of sitting, voting, judging in our Parliaments ” (Prynne, Plea for Lords [cited note 125], “Epistle” at ).
[203. ] Prynne, First and Second Part of a Seasonable, Legal, and Historicall Vindication (cited note 108), 3, 7. In the introduction of an earlier work Prynne wrote: “I here present thee with Truth Triumphing over Falsehood, Antiquity over Novelty; to settle both the Judgement and Practice, in these unset[t]led times, wherein the very Foundation of Parliaments, States, Churches, Governments, are shaken and subverted ” (Truth Triumphing over Fals[e]hood, Antiquity over Novelty [London, 1645], “The Epistle to the Reader” at ).
[204. ] Prynne, First and Second Part of a Seasonable, Legal, and Historicall Vindication (cited note 108), 5.
[205. ] “I shall in a Chronological way tender you a large Historical Catalogue of National, Parliamental, civil and military Contests, Votes, Declarations, Remonstrances, Oathes, Vows, Protestations, Covenants, Engagements, Excommunications, Confirmations, Evidences, Statutes, Charters, Writs, Records, Judgments and Authorities in all ages, undeniably evidencing, declaring, vindicating, establishing, perpetuating these Fundamental Hereditary Rights, Liberties, Priviledges, Franchises, Customs, Laws, and abundantly manifesting the extraordinary care, industry, zeal, courage, wisdome, vigilancy of our Ancestours, to defend, preserve, and perpetuate them to posterity, without the least violation or diminution ” (ibid., 8 [see also at 7]).
[206. ] Prynne, Second Part of a Seasonable, Legal, and Historical Vindication (cited note 110), 13–14. On taxes in ancient British times: “[I]t is clear, That Taxes and Tribute not granted and assented to in Parliament, though imposed by a Conquering Invader, binde not the Nation ” (ibid., 17).
[207. ] Ibid., 49. On taxes in Saxon times: “[T]he ancient English Saxon Kings at and from their primitive Establishment in this Realm, had no power nor prerogative in them to impose any publick Taxes . . . on their people without their Common Consents and Grants in their Great Councils of the Realm” (ibid., 64–65).
[208. ] Anonymous, The Divine Rights of the British Nation and Constitution Vindicated. In Remarks on the Several Papers Publish’d against the Reverend Mr. Hoadly’s Considerations upon the Bishop of Exeter’s Sermons (London, 1710), 60.
[209. ] Ibid., 81 (quoting a critic of the legal theories of Bishop Benjamin Hoadly).
[210. ] Pocock, Ancient Constitution Retrospect (cited note 35), 351.
[211. ] Smith, Gothic Bequest (cited note 95), 17.
[212. ] Pocock, “Origins of Study” (cited note 44), 234. See “Editor’s Introduction” to Viscount Bolingbroke, Political Writings, ed. Isaac Kramnick (New York: 1970), xlii; Kramnick, Bolingbroke and His Circle (cited note 22), 128.
[213. ] Kramnick, “Augustan Politics” (cited note 33), 37. Brady is said to have “raised out of the morass of a pseudo-historical argument the first serious study of the Norman Conquest.” Styles, “Politics and Research” (cited note 38), 72. See also Dickinson, “Eighteenth-Century Debate” (cited note 138), 191.
[214. ] Robert Brady, An Introduction to the Old English History, Comprehended in three several Tracts (London, 1684), “Epistle” (n.p.).
[215. ] “No omnipotent Parliament and elective crown could threaten the Stuarts when the idea of the ancient constitution was proved to be so erroneous” (Kramnick, “Augustan Politics” [cited note 33], 37). See also Kramnick, Bolingbroke and His Circle (cited note 22), 128–29.
[216. ] See, e.g., [Robert Brady], The Great Point of Succession Discussed. With a Full and Particular answer to a late Pamphlet, Intituled, A Brief History of Succession, &c. (London, 1681), 2–25. “Every bit as rigid in his own way as the whig historians, Brady likewise was guilty of present-mindedness and hence anachronism in his account of the English past though his skilful and rigorous use of Spelman’s Glossary made this less obvious in his case. In sum, Brady’s examination of early English history was always subservient to the larger cause of placing a legal sovereignty based on the sword in the Stuart kingship” (Weston, “Legal Sovereignty” [cited note 50], 431). See also Corinne Comstock Weston and Janelle Renfrow Greenberg, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, England, 1981), 196–97.
[217. ] [Brady], Great Point of Succession (cited note 216), 25–26.
[218. ] Robert Brady, A Complete History of England, from the First Entrance of the Romans under the Conduct of Julius Caesar, Unto the End of the Reign of King Henry III (London, 1685), “Preface” (n.p.).
[219. ] Pocock, Ancient Constitution Retrospect (cited note 35), 353.
[220. ] Kramnick, “Editor’s Introduction” to Bolingbroke, Political Writings (cited note 212), xlii.
[221. ] St. Amand, Historical Essay (cited note 61), 89; charge of October 9, 1728, Sir John Gonson’s Five Charges (cited note 149), 107.
[222. ] Gilbert Stuart, “A Discourse Concerning the Laws and Government of England,” in Francis Stoughton Sullivan, Lectures on the Constitution and Laws of England: With a Commentary on Magna Charta, and Illustrations of Many of the English Statutes. To which Authorities are added, and a Discourse prefixed, concerning the Laws and Government of England by Gilbert Stuart, LL.D., 2d ed. (London, 1776), xix (n.).
[223. ] Hargrave, “Preface” to Hale, Jurisdiction (cited note 121), lxxxiii, lxxix.
[224. ] [William Atwood], Additions Answering the Omissions of our Reverend Author (London, 1681), 37–38. For Atwood on Brady, see Weston, “Legal Sovereignty” (cited note 50), 412–13.
[225. ] [Reeves], Thoughts on English Government (cited note 67), 117–18.
[226. ] Thus Brady contended that not only was the House of Lords anciently summoned at the king’s discretion, it was also discretionary as to which members were summoned. To which Atwood pointed out: “[T]he making this to have been the Constitution of the House of Lords, and maintained in Practice ever since, is as much as to say, the Rights of that Order of men, are not set[t]led at this day ” ([William Atwood], Jus Anglorum ab Antiquo; or, A Confutation of an Impotent Libel against the Government by King, Lords, and Commons. Under pretence of Answering Mr. petyt, and the author of Jani Anglorum Facies Nova. With a Speech according to the Answerer’s Principles, made for the Parliament at Oxford [London, 1681], “Preface” at ).
[227. ] Atkyns, Power, Jurisdiction and Priviledge (cited note 123), 14.
[228. ] [Atwood], Additions Answering Omissions (cited note 224), 37. Atwood also said of a book by Brady “against Mr. Petyt and my Self ” that it “not only treats us with Pedantick Scorn . . . but it seems, to trample on the best Constitution, our Government it self, under Colour of its being New in the 49th of Hen. 3” (Jus Anglorum [cited note 226], “Preface” at ). It has, nevertheless, been suggested that the argument involved “the Whig interpretation of English history” (James Moore, “A Comment on Pocock,” in Theories of Property: Aristotle to the Present, ed. Anthony Parel and Thomas Flanagan [Waterloo, Ontario, 1979], 174).
[229. ] Samuel Johnson, Reflections on the History of Passive Obedience (London, 1689), 1; Samuel Johnson, An Answer to the History of Passive Obedience, just not reprinted under the Title of A Defence of Dr. Sacheverel (London, 1709), 1. He was criticizing [Abednego Seller], The History of Passive Obedience Since the Reformation (Amsterdam, 1689).
[230. ] Thus the editor of one of Petyt’s books noted that during the reign of Charles II “Then it was that the Body of Mercenaries undertook to maintain several extraordinary Points; they would prove, That the Laws are the King’s Laws; that from him they receive their binding Force; that Parliaments owe their very Essence to the Royal Favours; that they are only for Counsel; that they are not very ancient; that the Commons were not anciently a constituent Part of Parliament” (Petyt, Jus Parliamentarium [cited note 150], “Preface”).
[231. ] Atkyns, Power, Jurisdiction and Priviledge (cited note 123), 17. Atkyns’s jurisprudence was quite extreme for he put a heavy burden of proof on his own side of the controversy. To prove “the transcendent Power of the High Court of Parliament,” he said that he had to maintain “[t]hat the House of Commons was originally and from the first Constitution of the Nation, the Representative of one of the three Estates of the Realm, and a part of the Parliament” (ibid., 13). Of course, the burden was less than we might think as it consisted of forensic, not “historical,” proof. See also note 201, above.
[232. ] Isaac Kramnick, “Editor’s Introduction” to Viscount Bolingbroke, Historical Writings (Chicago, 1972), xliii. “But Nemesis awaited Brady. The Revolution robbed him of place, and, for over two hundred years, of recognition of his true stature” (Smith, Gothic Bequest [cited note 95], 8).
[233. ] “The ancient Constitution of England was as arbitrary as any on the Continent.” Anonymous, The Ancient and Modern Constitution of Government Stated and Compared. And also Some Remarks on the Controversy Concerning the Dependence of Members of Parliament on the Crown (London, 1734), 7.
[234. ] Anonymous, Defence of English History (cited note 168), 13–14.
[235. ] “For tho’ I agree with Brady in many of his Facts, and think them undoubted Records and True Testimonies; yet I agree with him in none of his political Principles, nor in the Use he designed to make of his facts” (Daily Gazetteer, no. 6, July 5, 1735, p. 1, col. 2).
[236. ] As, for example, John Reeves, who reacted so strongly against the French Revolution and, as a result, embraced Brady so wholeheartedly he was prosecuted by the Commons for saying the king was supreme in British law. See [Reeves], Thoughts on English Government (cited note 67), 117.
[237. ] Anonymous, The Spirit and Principles of the Whigs and Jacobites Compared. Being the Substance of a Discourse delivered to an Audience of Gentlemen at Edinburgh, December 22, 1745 (London, 1746), 29.
[238. ] Anthony Ellys, Tracts on the Liberty, Spiritual and Temporal, of Subjects in England. Addressed to J. N. Esq; at Aix-la-Chapelle. Part II (London, 1765), 195.
[239. ] [Joseph Galloway], A Letter to the People of Pennsylvania (1760), reprinted in Bernard Bailyn, Pamphlets of the American Revolution, 1750–1776 (Cambridge, Mass., 1965), 1:260–62; [Sir John Sinclair], Considerations on Proceedings by Information and Attachment. Addressed to the Members of the House of Commons. By a Barrister at Law, 2d ed. (London, 1768), 6–9.
[240. ] For discussion of some see Kenyon, Revolution Principles (cited note 64), 158, and Pocock, Ancient Constitution Retrospect (cited note 35), 303.
[241. ] J. E. Neale, Elizabeth I and Her Parliaments, 1559–1581 (London, 1953), 1:407. Neale also described the incident as “Deviationist history castigated by authority: another curious example of the likeness of those days to ours!” (408–9). Another historian has suggested that the reason the Commons prosecuted this case was its “enhanced prestige” (Kramnick, “Augustan Politics” [cited note 33], 35).
[242. ] “This scurvy Pedigree of the Commons in Parliament, drawn up by Dr. Brady, was so well liked by the Loyal Clergy . . . that Mr. Petyt found the Tide so strong against him, as not to venture on a Reply” (Samuel Johnson, An Argument Proving, That the Abrogation of King James by the People of England from the Regal Throne, and the Promotion of the Prince of Orange, one of the Royal Family, to the Throne of the Kingdom in his stead, was according to the Constitution of the English Government, and Prescribed by it, 4th ed. [London, 1692], 4).
[243. ] Helen E. Witmer, The Property Qualifications of Members of Parliament (New York, 1943), 28.
[244. ] Speech of the earl of Albemarle, Lords Debates, December 2, 1795, The Parliamentary History of England, From the Earliest Period to the Year 1803 (London, 1818), 32:681–83.
[245. ] Speech of Serjeant Adair, Commons Debates, November 23, 1795, ibid., 32:625.
[246. ] Speech of John Courtenay, Commons Debates, November 26, 1795, ibid., 32:645.
[247. ] Proceedings of December 15, 1795, ibid., 32:681.
[248. ] Brady, Introduction to the Old English History (cited note 214), “Epistle” (n.p.).
[249. ] [Atwood], Additions Answering Omissions (cited note 224), 41. Atwood went on to contend that representation did not receive its “Perfection” from the king, but “that its Perfection were such as we say it has at this day, viz. for Lords to come of Right in their own Persons, and that the Commons should send Representatives of their free Choice” (ibid., 42).
[250. ] Similar to Atwood, but a century later, consider the attack of another barrister on the anticonstitutionalist historical argument of Josiah Tucker: “The intention of these misrepresentations is sufficiently apparent. They evidently tend to invalidate the existence of political and indeed of civil liberty beneath the feudal government, except in the instance of the Barons. To reduce the husbandmen and the tradesmen to a state of villenage. To deny the existence of the rights we at present enjoy, till they are wrung from the crown by the arms of its vassals, and disseminated by similar usurpations of the commons. And finally, by these insidious deductions to strengthen the author’s attack upon the privileges we fell, and the constitution we revere” ([James Ibbetson], A Dissertation on the National Assemblies Under the Saxon and Norman Governments [London, 1781], 36).
[251. ] Weston, “Legal Sovereignty” (cited note 50), 416. For another good discussion, see Thompson, “Idea of Conquest” (cited note 193), 38 n. 26.
[252. ] Sullivan, Lectures (cited note 222), 16.
[253. ] Wooddeson, A Systematical View (cited note 77), 1:6.
[254. ] Sullivan, Lectures (cited note 222), 170.
[255. ] Coke especially. See W. S. Holdsworth, “The Influence of Coke on the Development of English Law,” in Essays in Legal History Read before the International Congress of Historical Studies Held in London in 1913, ed. Paul Vinogradoff (London, 1913), 306.
[256. ] J. W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955), 6.
[257. ] Brady, Complete History of England (cited note 218), “Preface” (n.p.).
[258. ] [James Ibbetson], A Dissertation on the Folclande and Bocland of the Saxons (London, 1777), 8–9.
[259. ] [Ibbetson], Dissertation on the National Assemblies (cited note 250), 33.
[260. ] Joseph Towers, A Vindication of the Political Principles of Mr. Locke: In Answer to the Objections of the Rev. Dr. Tucker, Dean of Glocester (London, 1782), 55.
[261. ] Brady, Introduction to the Old English History (cited note 214), 39. Interestingly, the technique was used by both sides and so, too, the complaint. In 1718 a defender of the ancient constitution charged that Matthias Earbery (who argued that Saxon and Norman kings possessed absolute power) “only transcribes what he thinks makes for him, and leaves out whatever makes against his Opinion” (Anonymous, The Old Constitution and Present Establishment in Church and State Honestly Asserted [London, 1718], 52). The work criticized was Earbery, Old Constitution Vindicated (cited note 109).
[262. ] Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill, N.C., 1969), 8–9. Even a historian who claims to believe that the founding fathers seriously searched history for guidance has complained: “The colonists were selective in their use of whig history. They seized and made their own, specific concepts and ideas only. They took seventeenth-century historical arguments against the Stuarts and directed these arguments against the eighteenth-century Parliament” (Colbourn, Lamp of Experience [cited note 88], 189). The whigs took seventeenth-century constitutional arguments against the arbitrariness of the Stuarts and directed these constitutional arguments against the arbitrariness of imperial legislation.
[263. ] Sharpe, Sir Robert Cotton (cited note 59), 44.
[264. ] Warrington, “A Speech against the Assertion of Arbitrary Power, and the Non-Swearers,” in Works (cited note 169), 389. And, of course, the other side also argued for the burden of proof. Thus a writer who contended that, before Norman times, kings ruled without the Commons wrote of ancient constitution-alists: “I say, these Men must either prove the Commons were in Parliament before Henry Ist, or they must grant that an House of Commons, Antiently was not essential to a Parliament, and that the House of Lords was such without them” (Earbery, Old Constitution Vindicated [cited note 109], ii).
[265. ]Junius, “To the Right Hon. Lord M[ansfield],” The Gentleman’s Magazine and Historical Chronicle 40 (1770): 516.
[266. ] William Blackstone, Tracts, Chiefly Relating to the Antiquities and Laws of England, 3d ed. (Oxford, 1771), 20, and An Analysis of the Laws of England, 6th ed. (Oxford, 1771), 11.
[267. ] Wooddeson, A Systematical View (cited note 77), 1:18–19.
[268. ] Wynne, Eunomus (cited note 75), 3:61–62.
[269. ] John Joshua Proby, earl of Carysfort, A Letter from the Right Honourable Lord Carysfort, to the Huntingdonshire Committee (London, 1780), 5.
[270. ] Wynne, Eunomus (cited note 75), 1:60.
[271. ] Atkyns, Parliamentary and Political Tracts (cited note 201), 150.
[272. ] Stuart, “Discourse Concerning Laws and Government” (cited note 222), vii–viii n. 8.
[273. ] [Richard Goodenough], The Constitutional Advocate: By which, from the Evidence of History, and of Records, and from the Principles of the British Government, Every Reader may form His own Judgement concerning the Justice and Policy of the present War with America. Addressed to the People at Large, And humbly submitted to the Considerations of their Representatives (London, 1776), 27.
[274. ] That was the simplest technique. During the Wilkes election controversy a pamphleteer asked when the House of Commons had obtained jurisdiction to decide the qualifications of members, and answered: “That they gained it at the same time, and by the same means that they gained their right of impeaching the greatest personages in the land; at the same time, and by the same means, that they acquired the right they exercise with regard to money bills, and other un-doubted privileges. In short, their jurisdiction in this respect, which is confirmed by immemorial usage, is as ancient as the Common Law, and must be so deemed, for no written law can be produced which shews the commencement of the institution: It is coeval with the constitution, and without such a jurisdiction the House of Commons, as has been shewn, could not exist as an independent body” ([Jeremiah Dyson], The Case of the Late Election for the County of Middlesex, Considered on the Principles of the Constitution, and the Authorities of Law [London, 1769], 41).
[275. ] John Missing, A Letter to the Right Honourable William Lord Mansfield, Lord Chief Justice of the Court of King’s Bench: Proving that the Subjects of England, lawfully assembled to Petition their King, or to Elect or Instruct their Representatives, are intitled to Freedom of Debate; and that all Suits and Prosecutions for exerting that Right, are Unconstitutional and Illegal (London, 1770), 10–11.
[276. ] William Dugdale, Origines Juridiciales, or Historical Memorials of the English Laws, Courts of Justice, Forms of Tryal, Punishment in Cases Criminal, Law-Writers, Law-Books, Grants and Settlements of Estates, Degree of Serjeant, Innes of Court and Chancery, 2d ed. (London, 1671), 3, col. 1.
[277. ] Algernon Sidney noted that Filmer “is not ashamed to cite Bracton, who, of all our antient law-writers, is most opposite to his maxims. He lived, says he, in Henry the third’s time, since parliaments were instituted: as if there had been a time when England had wanted them; or the establishment of our liberty had been made by the Normans, who, if we will believe our author, came in by force of arms, and oppressed us. But we have already proved the essence of parliaments to be as antient as our nation, and that there was no time, in which there were not such councils or assemblies of the people as had the power of the whole, and made or unmade such laws as best pleased themselves. We have indeed a French word from a people that came from France, but the power was always in ourselves; and the Norman kings were obliged to swear they would govern according to the laws that had been made by those assemblies. It imports little, whether Bracton lived before or after they came among us” (Discourses Concerning Government, in The Works of Algeron Sydney, new ed. [London, 1772], 312).
[278. ] [William Wenman Seward], The Rights of the People Asserted, and the Necessity of a More Equal Representation in Parliament Stated and Proved (Dublin, 1783), 37.
[279. ] “Keep in mind that our object is, to ascertain how it was, or must have been, according to the Constitution at its origin. It is only by ascending to that point, we can know what it now is; because, whatever it originally was it continues to be; no change ever having been made, notwithstanding the numerous changes which have occurred in the practice of governing” (Cartwright, The English Constitution [cited note 17], 207–8).
[280. ] So it could be said that in the 1640s a faction in the House of Commons “took the whole Government into their own Hands, and Created themselves a Commonwealth, thus totally subverting the Constitution” ([Leslie], Constitution, Laws and Government of England [cited note 61], 8).
[281. ] Ibid., 17.
[282. ] Anonymous, Political Disquisitions Proper for Public Consideration in the Present State of Affairs in a Letter to a Noble Duke (London, 1763), 3.
[283. ] W. Paley, An Essay upon the British Constitution: Being the Seventh Chapter of the Sixth Book of the Principles of Moral and Political Philosophy (London, 1792), 3. And see text to note 302 below.
[284. ] [Ramsay], Historical Essay (cited note 62), 10.
[285. ] [Bolingbroke], A Dissertation Upon Parties (cited note 66), 194–95.
[286. ] [Ramsay], Historical Essay (cited note 62), 10.
[287. ] “Book Review,” The Critical Review: Or Annals of Literature by a Society of Gentlemen 19 (1765): 208. See also Burgh, Political Disquisitions (cited note 154), 1:171.
[288. ] “Those eighteenth-century Englishmen who were dissatisfied with their constitution and wanted to reform it typically presented their proposed reforms as involving a return to the constitution’s original principles—a doctrine not characteristic of opposition thought under the first four Stuarts and involving attitudes rather fundamentalist than prescriptive, rather reactionary than conservative” (Pocock, Politics, Language and Time [cited note 27], 133).
[289. ] As was also true for the “prerogative” side in the seventeenth century. E. Evans, “Of the Antiquity of Parliaments in England: Some Elizabethan and Early Stuart Opinions,” History 23 (1938): 221.
[290. ] [Robert Macfarlane], The History of the Reign of George the Third, King of Great-Britain, &c. to the Conclusion of the Session of Parliament, Ending in May, 1770 (London, 1770), 235–36. The argument was directed against the technique being discussed, of “restoring the constitution to first principles.” The criticism was well understood at the time: “There are many sorts of abuses and grievances crept into the administration of government, which politicians tell us, are no way to be corrected, but by going back to the first principles on which our system is erected. But where are these to be found? Perhaps in some mouldy records which are no longer legible, and if they were, would still be subject to be misinterpreted and wrested to the worst purposes by mercenary lawyers, who are ever ready to make their advantage of antiquated and ambiguous expressions. Magna Charta itself could not stand before the sort of law delivered by the judges of Charles I. in the case of ship money, or the decisions of Jefferies in the two following reigns” (“Hanseaticus,” St. James’s Chronicle, August 26, 1766, rpt. in A Collection of Letters and Essays in Favour of Public Liberty, First Published in the News-Papers in the Years 1764, 65, 66, 67, 68, 69, and 1770. In Three Volumes [London, 1774], 2:44–45). “Speculative Politicians talk as lightly and fluently of reverting to first principles, as if it required no more trouble than to rectify a piece of clock-work that was out of order. History, on the contrary, informs us, that this cannot be effected but by civil war, and that the event, in general, is not reformation but tyranny” ([William Vincent], A Letter to the Reverend Dr. Richard Watson, King’s Professor of Divinity in the University of Cambridge [London, 1780], 14).
[291. ] [Macfarlane], History of George III (cited note 290), 239.
[292. ] “It is nowadays a commonplace that no constitution can be static. . . . But if this is obvious now, it has not always been so. Constitutional disputes have often taken the form of a controversy as to what a particular constitution already was, when the real issue was whether or not it should be altered. In England, particularly, reform has again and again been represented by its partisans not as innovation but as maintenance or restoration” (Mark A. Thomson, A Constitutional History of England, 1642 to 1801 [London, 1938], 3).
[293. ] “The idea of an ancient and an immemorial constitution . . . was designed to lend the respectability of antiquity to constitutional practices and attitudes which had far more innovation in them than their proponents cared to admit” (Robert Ashton, “Tradition and Innovation and the Great Rebellion,” in Three British Revolutions: 1641, 1688, 1776, ed. J. G. A. Pocock [Princeton, N.J., 1980], 213).
[294. ] [Joseph Galloway], A Letter to the People of Pennsylvania; Occasioned by the Assembly’s passing that Important Act, for Constituting Judges of the Supream Courts and Common-Pleas, During Good Behaviour (Philadelphia, 1760), 25–26.
[295. ] Kelley, “Clio and the Court” (cited note 91), 155.
[296. ] Ibid., 157.
[297. ] Ibid., 131.
[298. ] Burgh, Political Disquisitions (cited note 154), 3:428–29. Of course, it was a technique that used what purported to be history to disguise reform, and was indulged in even by individuals, such as John Locke, who were not historically minded. “[T]he set[t]lement of the nation upon sure ground of peace and security . . . can noe way soe well be don[e] as by restoreing our ancient government, the best possibly that ever was if taken and put together all of a piece in its originall constitution” (letter from John Locke to Edward Clarke, January 28/February 8, 1689, in The Correspondence of John Locke, ed. E. S. De Beer, 8 vols. [Oxford, 1976–1989], 3:545 [letter 1102]).
[299. ] Cartwright, The English Constitution (cited note 17), 172.
[300. ] Ibid., 177.
[301. ] Thomas Day, Two Speeches of Thomas Day, Esq. at the General Meetings of the Counties of Cambridge and Essex, Held March 25, and April 25, 1780 (n.p., 1780), 17. The process of “restoration” was often thought of as a positive, ongoing constitutional duty. “In a free government, when care is not taken from time to time to bring back the constitution to its first principles, in proportion as the epoch of its origin becomes remote, the people lose sight of their rights, they soon forget them in part, and afterwards retain no notion of them” ([J. P. Marat], The Chains of Slavery. A Work Wherein the Clandestine and Villainous Attempts of Princes to Ruin Liberty are Pointed Out, and the Dreadful Scenes of Despotism Disclosed. To which is prefixed, An Address to the Electors of Great Britain, in order to draw their timely Attention to the Choice of Proper Representatives in the next Parliament [London, 1774], 185).
[302. ] Paley, Principles of Moral and Political Philosophy (cited note 63), 465.
[303. ] Burgh, Political Disquisitions (cited note 154), 3:308.
[304. ] Letter from John Wilkes to Fletcher Norton, April 20, 1773, The Gentleman’s Magazine and Historical Chronicle 43 (1773): 201 (not quoting the letter directly).
[305. ] William P[udse]y, The Constitution and Laws of England Consider’d (London, 1701), 51.
[306. ] Speech of Edward Southwell, Commons Debates, December 8, 1744, The Parliamentary History of England, From the Earliest Period to the Year 1803 (London, 1812), 13:1039. That comment enjoyed other moments. E.g., “Machiavel,” it was said, “asserted, that no government can be lasting which is not frequently reduced to its first principles.” A Second Address to the Public from the Society for Constitutional Information (n.p., n.d.), 6 (Huntington Library rare book #305198); Smith, Gothic Bequest (cited note 95), 85.
[307. ] Speech of Southwell, December 8, 1744, Parliamentary History, 13:1045.
[308. ] Ibid., 13:1039–40.
[309. ] “However necessary it may be to shake off the authority of arbitrary British dictators, we ought nevertheless to adopt and perfect that system, which England has suffered to be so grossly abused, and the experience of ages has taught us to venerate. This, like almost every thing else, is perhaps liable to objections; and probably the difficulty of adapting a limited monarchy will be largely insisted on. Admit this objection to have weight, and that we cannot in every instance assimulate a government to that, yet no good reason can be assigned, why the same principle or spirit may not in a great measure be preserved” ([Carter Braxton], An Address to the Convention of the Colony and Ancient Dominion of Virginia; on the Subject of Government in general, and recommending a particular Form to their Consideration [Philadelphia, 1776], 13; the words quoted in the text are from 11).
[310. ] Ibid., 11. James Burgh also thought the restored ancient constitution would afford “happiness” when he told Britons: “The present form of government by king, lords and commons, if it could be restored to its true spirit and efficiency, might be made to yield all the liberty, and all the happiness of which the great and good people are capable in this world” (Colin Bonwick, English Radicals and the American Revolution [Chapel Hill, N.C., 1977], 22).
[311. ] “Parliamentary History,” The London Magazine or Gentleman’s Monthly Intelligencer 45 (1776): 403. That same year it was contended that if the ministry restored triennial parliaments it would “heal the Breach, by restoring the Constitution” ([James Stewart], A Letter to the Rev. Dr. Price, F.R.S. Wherein his Observations on the Nature of Civil Liberty, the Principles of Government, &c. Are Candidly Examined; His Fundamental Principles refuted, and the Fallacy of his Reasoning from these Principles detected [London, 1776], 18).
[312. ] [Granville Sharp], The Legal Means of Political Reformation, Proposed in Two Small Tracts, viz. The First on “Equitable Representation,” and the Legal Means of obtaining it (1777). The Second on “Annual Parliaments, the ancient and most Salutary Right of the People” (1774), 8th ed. (London, 1797), 3–4.
[313. ] Granville Sharp, A Defence of the Ancient, Legal, and Constitutional, Right of the People, to elect Representatives for every Session of Parliament; viz. Not only “every Year once,” but also “More often if Need be” (London, 1780), 15–16.
[314. ] [Ramsay], Historical Essay (cited note 62), 153.
[315. ]Second Address to the Public (cited note 306), 14.
[316. ] Day, Two Speeches (cited note 301), 11. Almost a century earlier, Samuel Johnson said of William III: “[I]t is our peculiar Happiness in this Reign, that we live under a Prince who had no other Business here, but to restore the Constitution; which, as his Declaration speaks, was wholly overturned in the former Reigns” (An Argument Proving [cited note 242], 3).
[317. ] J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J., 1975), 340–41. Seventeenth-century history also is said to have shaped thought by contributing to the ignorance of the lawyers: “The unitary legal system in England, the prestige of the law and the lawyers, the intimate relationship between views of law and legal history and political realities combined to keep Englishmen wilfully ignorant of the past of their own society” (Laslett, “Book Review” [cited note 36], 143). Even more remarkable is an explanation as to why common lawyers had continued their “constitutionalist” opposition to civil law and to arbitrary power long after better scholarship led French lawyers to abandon ancient constitutionalism: “One of the underlying reasons for this was the curious reluctance of the English to consider historical perspective or context. Their tendency was rather to move directly from the most abstract principles of natural law to the most technical practices of English courts without any reference to contracts or parallels with continental jurisprudence” (Kelley, “History, English Law and the Renaissance” [cited note 37], 27).
[318. ] Pocock, Ancient Constitution Retrospect (cited note 35), 302.
[319. ] Pocock, Ancient Constitution (cited note 56), 17. “The pattern in the early seventeenth century is a recurrent one: we find the common lawyers and the parliamentary Opposition appealing to a remote against a more recent past, as the Whig Reformers were to do two centuries later and as the Barons, so far as our evidence goes, had done, centuries before” (Styles, “Politics and Research” [cited note 38], 53).
[320. ] “It was the Crown lawyers, defending Impositions or Proclamations or Arbitrary Imprisonment, who were the more likely to invoke the practices of the sixteenth century. The distinction involved is between two different views of history, or rather between two different aspects of it. If history is a manual of state-craft, it follows that it repeats itself. Human nature remains the same, but situations recur, so that the experience of the past can be applied to the problems of the present. But the appeal to antiquity is concerned with institutions rather than with policy and allows no element of change. Now the political conflicts of the early seventeenth century, so far as they were not complicated by religion, were centered on institutions; on the breakdown of a medieval system of government. They were largely conceived in historical and legal terms and it was in this field that the great scholars of the time were primarily interested. We must therefore examine a little the prevailing conceptions of English history and see how much there was in them of genuine historical judgement” (Styles, “Politics and Research” [cited note 38], 53–54).
[321. ] Christopher Brooks and Kevin Sharp, “History, English Law and the Renaissance,” Past & Present 72 (1976): 142.
[322. ] “Coke can hardly be left out of an inquiry into the intellectual origins of the English Revolution, yet he presents difficulties. He was a lawyer, not an intellectual” (Hill, Intellectual Origins [cited note 32], 227).
[323. ] Gray, “Reason, Authority, and Imagination” (cited note 186), 35.
[324. ] William J. Bouwsma, “Lawyers and Early Modern Culture,” American Historical Review 78 (1973): 327.
[325. ]The Fift[h] Part of the Reports of Sr. Edward Coke Knight, the Kings Attorney Generall: Of diuers Resolutions and Iudgements giuen vpon great deliberation in matters of great importance & consequence by the reuerend Iudges and Sages of the Law; together with the reasons and causes of their Resolutions and Iudgements (London, 1605), “To the Reader” at [2–3].
[326. ] Ibid., .
[327. ] Kelley, “History, English Law and the Renaissance” (cited note 37), 33. Which does not mean one would agree with Kelley’s explanation for that conclusion: “It is true that Coke himself did not hesitate to make use of historical writings, but this was merely because as a lawyer he believed the more arguments the better—there was no telling, he remarked, what might persuade some people. But it was not in history that one learned about the law; on the contrary it was in the study of law that one found ‘the faithful and true Histories of all Successive Times’” (32).
[328. ] “We might suggest that lawyers merely endorsed ideas which had first been formulated by others, and themselves contributed nothing to political thinking. There is much truth in this, but there was one political idea which lawyers—including Coke, Hedley and [Sir John] Davies—made peculiarly their own. This was the idea that ancient and rational customs should not, or could not be abrogated” (Sommerville, “History and Theory” [cited note 37], 260).
[329. ] “Evarts not being a historian but a lawyer, it must be called ‘lawyer’s history’ when he said [when arguing the Tenement Cigar Case before the United States Supreme Court], ‘Ethical and political writers speak but one language on the nature of these fundamental rights and their security against rightful interference by government.’ Such a statement can be true only in a brief ” (Benjamin Rollins Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court [Princeton, N.J., 1942], 104).
[330. ]Commonwealth v. Chapman, 13 Metcalf (Mass.) Reports 68, 73 (1847).
[331. ] “‘Lawyer’s history,’ . . . proceeds, generally speaking, on the assumption that anything said in a judicial decision which it is convenient to treat as authentic fact is authentic fact, whatever a competent historical scholar might have to say about the matter” (Twiss, Lawyers and the Constitution [cited note 329], 147).
[332. ]Van Ness v. Pacard, 2 Peters (U.S.) 137, 144 (1829).
[333. ] Leonard W. Levy, “Introduction” to Charles Fairman and Stanley Morrison, The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (New York, 1970), xii–xiii.
[334. ] Brady, Introduction to the Old English History (cited note 214), “Epistle” (n.p.).
[335. ] Christopher Collier, “The Historians Versus the Lawyers: James Madison, James Hutson, and the Doctrine of Original Intent,” Pennsylvania Magazine of History and Biography 112 (January 1988): 140.
[336. ] One historian writing in a legal periodical said that he would “be satisfied if lawyers, judges, historians, and legal scholars are reminded, as they periodically need to be, that the mere fact that a record is in print does not make it reliable” (James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 [November 1986]: 39).
[337. ] Robert C. Palmer, “Liberties as Constitutional Provisions 1776–1791,” in William E. Nelson and Robert C. Palmer, Liberty and Community: Constitution and Rights in the Early American Republic (New York, 1987), 146. “For those who fear the risks of expansive judicial interpretation of open-ended constitutional provisions, obedience to the commands of history provides a way of narrowing, albeit not completely, the options open to the conscientious judge. Here history is used to control not exclusively or even primarily because an historical view of intent is special, but because it is a pragmatic device for cabining the discretion of judges. . . . Reference to historical intent as a method for limiting judicial discretion might still be thought to be more legitimate or perhaps more constraining than some of these other techniques, but it is the constraint and not the legitimacy that under this view justifies taking original intent as command” (Frederick Schauer, “The Varied Uses of Constitutional History,” in Nelson and Palmer, Constitution, 7).
[338. ] It is good to keep in mind that the triumph of history among Continental lawyers, so often held up to prove the comparative intellectual barrenness of the common law mind, coincided with the defeat of constitutionalism. “In France historians and lawyers had quietly disposed of many of their cherished professional beliefs—that the ‘Salic law’ and the Parlement of Paris were derived from the early Franks, for example, and that their laws were older than those of the Romans. The English, on the other hand, clung even more tenaciously to their myths, and they continued to rest their case upon the aboriginal character and prehistorical origin of common law. The fact that between Fortescue and Coke lay over a century of exploration into European legal and institutional history, much of it by professional jurists, did not seem to matter. On the contrary, as J. G. A. Pocock has said, ‘Between 1550 and 1600 there occurred a great hardening and consolidation of common-law thought.’ It is something of a paradox that this should have happened precisely when the continent was enjoying a golden age of legal and historical scholarship and when a kind of ‘historical revolution’ was beginning in England itself ” (Kelley, “History, English Law and Renaissance” [cited note 37], 30). The hardening of common-law thought is less a paradox to the legally minded, for this was the period of hardening of common-law constitutional resistance to arbitrary government.