Front Page Titles (by Subject) Epilogue: Diverse Viewpoints on Ancient Constitutionalism (Corinne Comstock Weston) - The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law
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Epilogue: Diverse Viewpoints on Ancient Constitutionalism (Corinne Comstock Weston) - 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 theme of the Windsor Castle Conference with which this book originated—“Magna Carta and Ancient Constitution”—brings automatically to mind J. G. A. Pocock’s much discussed study of the ancient constitution and its bearing on Stuart politics and thought. Few would deny that the compliment in the choice of theme is richly deserved. For recognition is general that his Ancient Constitution and the Feudal Law opened up a new way of looking at the Petition of Right and the Bill of Rights, documents of the first importance in the history of political liberty in the western world.1
Yet it is doubtful that Pocock’s conception of the ancient constitution faithfully mirrors that of Stuart Englishmen who asserted ancient rights and liberties. For one thing, Christopher Hill, as long ago as 1958, noticed in Tudor England a growing interest in the Saxon past and wrote of a legend of Saxon freedom in the seventeenth century. He even refers to a theory that “stressed the unbroken continuity of common law, which had carried Anglo-Saxon liberty into post-conquest England.”2 I, too, think the ancient constitution is best described as a Saxon constitution, and in what follows I explain my reasons for thinking so as a necessary preliminary to commenting on the foregoing essays.3 My focus is on Pocock’s interpretation of the legal terms immemorial and time before memory, from which his most striking generalizations flow.
Pocock’s description runs on these lines. Stuart historians, known as legal antiquaries, wrote of an immemorial constitution and law shaped by Sir Edward Coke’s prefaces to his Reports (1600–1615) and his Institutes of the Laws of England (1628–1644). The Reports supplied law cases for students of common law, while the Institutes served as a great legal textbook, their popularity enhanced by the high prestige of an author who was speaker of the Elizabethan House of Commons and then successively chief justice of the Common Pleas and King’s Bench before becoming a prominent parliamentary leader in the 1620s. Pocock writes of Coke’s pursuing “the precedents of existing institutions into the distant past” and his identifying parliament’s liberties and the whole constitution with an ancient law “of no known origin” that had “suffered no change in the course of history.” As a result proponents of this fundamental constitution thought in terms of an ancient constitution “which owed its being to no man.”4
Another descriptive passage states graphically that “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: not merely that they were very old, or that they were the work of remote and mythical legislators, but that they were immemorial in the precise legal sense of dating from time beyond memory—beyond in this case, the earliest historical record that could be found [italics added].” This is “the doctrine or myth of the ancient constitution, which bulked so large in the political thought of the seventeenth century.” The myth was extraordinarily useful to whoever supported rights and liberties. If these were based on an immemorial constitution, they rested on as firm a legal foundation as the royal prerogative. Moreover, as Pocock points out, if rights and liberties were not created by earlier kings, their successors could not legally withdraw them.5
Although common law reasoning imparted a distinctive flavor to the doctrine of the ancient constitution, there is no reason to think that legal antiquaries lacked interest in the statutes of a legislating parliament. Indeed, their concept of an ancient constitution from the first included this kind of parliament. This was true of Coke, the great champion of common law, who was very fond of two medieval treatises: the Modus tenendi Parliamentum, published in 1572, and the Mirror of Justices, which circulated in manuscript in Tudor England and was printed in French in 1642. An English edition appeared in 1646. If taken at face value, the Modus provided powerful evidence of such a parliament under Edward the Confessor (d. 1066); and the Mirror stated that Alfred the Great had ordained as perpetual usage—a term deemed significant by the common law mind—that parliaments be held twice a year. While speaker of the House of Commons in 1592–1593, Coke brought the Modus to its attention, and in the influential preface to his Ninth Reports he wrote of the Mirror as a learned and ancient treatise.6
Nor did legal antiquaries including Coke doubt the superiority of statutes to common law or of parliament to common law courts. All things being equal they would have preferred to rely on ancient statutes in asserting ancient rights and privileges, but the choice was not theirs to make. The parliament rolls where these should have been recorded were not to be found and were believed lost. There was no assumption that they might not have existed. Lacking the essential parliament rolls to establish that early laws were indeed the product of a legislating parliament, the legal antiquaries had no alternative except to search historical materials such as medieval chronicles and annals as well as later statutes for signs of pertinent ancient customs that formed part of common law.7
To attain this status these customs had to meet certain tests; only if this occurred, could the term immemorial be rightfully applied to them. The authoritative statement is in the First Part of the Institutes (1628), often referred to as “Coke on Littleton,” where it is explained that customs attain force of law by title of prescription. This common law principle became conspicuous in Stuart discourse when it was applied to ancient customs embodying rights and liberties. If these customs were to be allowed by the common law, they must be in accord with reason and God’s will expressed in the Scriptures. But other criteria were more prominent in political argument. Before customs could be deemed prescriptive, and hence immemorial, they had to have existed before (or beyond) time of memory without written record to the contrary. Stuart polemicists used the date of Richard I’s coronation, September 3, 1189, to divide time before memory from time of memory. They considered that in a legal sense whatever was before 1189, so far as customs were concerned, was before time of memory; whatever was since Richard I’s coronation was said to be within time of memory. Littleton, writing in the fifteenth century, reported that some found a title of prescription at common law “where a custom, or usage, or other thing, hath been used for time whereof mind of man runneth not to the contrary (a tempore cujus contraria memoria hominum non existit),” that is, before time of memory. To be deemed prescriptive customs must also have been exercised regularly and constantly without protest before and after 1189; usage must have been long, continued, and peaceable without the interruption, for example, of a Norman conquest. If these conditions were met, a customary usage was established that demonstrated tacit consent and the rights and liberties involved were allowed by the common law.8
To Coke’s authority should be added that of Lord Chief Justice Matthew Hale (d. 1676), the most eminent lawyer and judge of his age. He was, successively, justice of the Common Pleas, lord chief baron of the Exchequer, and chief justice of King’s Bench. Writing about statutes made before 1189 in his posthumously published History of the Common Law (1713), he distinguished precisely between time of memory and time before or beyond memory, stating
that according to a juridical account and legal signification, time within memory is the time of limitation in a writ of right, which by the statute of Westminster I cap. 38. was settled, and reduced to the beginning of the reign of King Richard I. or Ex prima Coronatione Regis Richard Primi, who began his reign the 6th of July 1189, and was crown’d the 3d of September following: so that whatsoever was before that time is before time of memory; and what is since that time, is, in a legal sense, said to be within or since time of memory.9
Likewise pertinent is the further comment that statutes made before the beginning of Richard I’s reign that had not been since altered or repealed were “now accounted . . . part of the common law; and in truth” were “not now pleadable as acts of parliament (because what is before time of memory is supposed without a beginning or at least such a beginning as the law takes notice of [italics added].” They obtained their strength “by mere immemorial usage or custom [italics added].”10
If the term immemorial conveys no more than the simple fact that the constitution, to be termed ancient, must have originated before 1189 and if reference to its having no beginning, and hence no human maker, was legal parlance, it follows that the ancient constitution was in all probability a Saxon constitution, established either before or after the Saxons entered England. Under these circumstances it was said to be as old as the name of England; under its auspices ancient rights and liberties would be viewed as just as legal as under Pocock’s ancient constitution. Witness the remarks of James Tyrrell, a Whig polemicist commenting on an “immemorial” House of Commons: “Who ever supposed that the commons claimed a right by prescription ever since the creation, or ever since the first peopling of this island? . . . Any body may see that this word ever is to be understood according to the nature of the subject in hand, viz. from the first institution of the Saxon government in this island.”11 To legal antiquaries the presence of the word ever in a medieval statute referring to the House of Commons afforded solid proof that it was part of parliament before 1189. Thus the statute 2 H.V, no. 10 received mention in parliamentary debates and political tracts for just this reason: it established that the House of Commons was legally “immemorial.”12
Finally, it should be noted that Coke, lacking any knowledge of political feudalism, considered Magna Carta a reaffirmation of ancient customs and laws that had protected Saxon liberties before the Norman conquest. Like many others he followed the medieval historian Matthew Paris in asserting that Magna Carta’s main provisions were derived from the Confessor’s laws and those of Henry I, whose coronation charter (1100) contained his pledge to restore these laws after the previous reign’s abuses. To Hale, the Confessor’s laws were such that the English were “very zealous” for them as “being the great rule and standard of their rights and liberties.”13
It is, then, of singular interest that J. C. Holt in his “Ancient Constitution in Medieval England,” and in publications centering on Magna Carta, tells of an earlier movement in which the Confessor’s laws were likewise treated as the great standard of rights and liberties. Not only did this movement culminate in King John’s grant of Magna Carta to his barons in June 1215. It was distinctive as well because the authors of the rebellion claimed to be restoring ancient customs that were part of a golden past (before the Angevins) and to be acting in the Confessor’s name. Holt assigns to this medieval ancient constitutionalism an important influence on Stuart England when he writes that the legal antiquaries revived Magna Carta and “above all, in truly medieval style, proceeded to apply the great tradition to their own particular circumstances.” This renaissance, as he calls it, was due to the work of officials of the crown, notably William Lambarde and Coke. Referring to the intellectual origins of the civil war, he wonders whether these were in fact so different from the medieval movement that he has described.14 In a published work he is even more precise. Granting the dissimilarities between the two movements, Holt concludes that the argument about the relationship of royal power to law was “closely similar in each case, all the more so in that the antiquarians of the second occasion drew on the antiquarians of the first in mounting their case against . . . the royal prerogative and what their predecessors described more plainly as the will of the king, which carried with it the . . . charge of tyranny.”15
A word about the Confessor, the penultimate Saxon king before the Norman conquest. A member of the house of Wessex that united the kingdoms of the heptarchy into England and hence a descendant of Alfred the Great, who saved England from the Danes, he is usually adjudged an indifferent king in the secular sphere though well remembered as builder of Westminster Abbey and the only English king to be canonized for his piety. He came to be seen as the epitome of Saxon liberties. Though he was no legislator, even Coke referred approvingly to Holy Edward’s laws, the source of Coke’s knowledge of Saxon law. These laws had an influence on Coke comparable to Sir John Fortescue’s De Laudibus, a highly influential treatise that Ellis Sandoz has ably analyzed in his introduction to this volume. Readers will find much of interest in it; for, unquestionably, Sir John Fortescue—the doyen of late medieval political theorists—advanced political ideas that anticipated the ancient constitutionalism of the Stuart century. In Sandoz’s discussion, the role of common lawyers and the dominant position of common law loom large—as does a new concept of the common welfare accepted by king and parliament. He sees at the heart of England’s ancient constitution an emphasis on “securing through the consent of the realm laws protecting the immemorial liberty of free men, serving the well-being of the whole community, and assuring a balance between parliament and king that will foster effective no less than just rule.” But despite the comprehensiveness of Sandoz’s discussion, it may be queried whether a place might not have been found, in the interest of a well-balanced account, for a discussion of the ideas on law-making expressed by the Elizabethan statesman Sir Thomas Smith and later by Coke in his Institutes (1628–1644). After all, Smith asserted the high power of parliament, and Coke not only distinguished between new and old law but also maintained the supremacy of statutes over common law.
The time has come, however, to resume this commentary on the Confessor’s laws. For almost four centuries, from Edward II’s coronation oath (1308) to the Glorious Revolution (1688–1689), monarchs promised to keep the Confessor’s laws. In the result the coronation oath came to be seen as the original contract on which the Saxon constitution was founded; so, too, did Magna Carta, which confirmed those laws. By the time the pertinent language entered the coronation oath, notes F. W. Maitland, the Confessor had “become a myth—a saint and hero of a golden age, of a good old time.”16
The barons in 1215 also invoked the name of Henry I, son of the Conqueror. Sometimes referred to as the “lion of justice,” he was said repeatedly in Tudor and Stuart chronicles to have founded the first parliament in which the Commons appeared. According to Holt, the political movement of 1215 began with the demand for the confirmation and reissue of Henry’s coronation charter. Westminster, Lambeth, and the royal treasury contributed early versions, from which the authors of the rebellion worked. At the same time historico-legal research produced two texts drawn from the first half of the twelfth century: the Leges Edwardi Confessoris and the Leges Henrici Primi, a blend of Anglo-Saxon and Frankish law. Additional materials were interpolated in the body of the Leges Edwardi Confessoris, notably about judgment by peers and baronial advice, which anticipated the program of 1215. These collections of laws were associated with the coronation oath, in which successive kings promised to uphold the Confessor’s laws. Here was a political movement with a political program. Holt writes: “The coronation oath, the charter of Henry I, the laws of Henry I and Edward the Confessor, were not an accidental association; they were all expressions of ancient law which was now being used as a standard whereby Angevin government could be weighed, criticized, and corrected.” In the result the barons took over the Confessor as “the source of good and ancient law,” and Holt adds that the men of 1215 had their own views about the Confessor and Henry I. The first was “a canonized saint, a worker of miracles [he allegedly touched for the king’s evil]”; and Henry I, the lion of justice, was “the keeper of the bees and the guardian of the flocks.”17
Holt also suggests possible corridors through which medieval ancient constitutionalism reached Stuart England. One of them was provided by a legend recorded after 1220 in annals at St. Augustine’s, Canterbury. These told of an encounter at Swanscombe Down between William the Conqueror and the men of Kent, led by Stigand, archbishop of Canterbury, and Aethelsige, abbot of St. Augustine’s, that resulted in the preservation of ancestral laws and customs in Kent, even though the rest of England was enslaved. The point was nonetheless clear: ancient law was good law and Saxon law. The legend reappeared in Lambarde’s much-reprinted Perambulation of Kent (1576) and Holinshed’s Chronicle (1577), Holt notes; and he could have cited as well chronicles associated with Richard Grafton (1568), John Speed (1611), and Samuel Daniel (1621).18
Even more to the point was the publication in late Tudor England of the Confessor’s laws. Once more Lambarde is a principal. In 1568 he published his Archaionomia, the London text of Leges Edwardi Confessoris; and it is significant that Coke’s library contained both the Perambulation and Archaionomia, the latter, as earlier noted, the main source of his knowledge of Saxon law.19 The Confessor’s laws were clearly accessible in Stuart England. Two editions of Archaionomia appeared in 1644, one of them edited by the respected legal antiquary Sir Roger Twysden, with Henry I’s laws appended. And then there was John Selden’s edition of Eadmer’s annals, published in 1623. Eadmer was a monk of Canterbury and chaplain to Archbishop Anselm in Norman England and a contemporary of the events he described. Selden’s edition of Eadmer’s annals contains not only the Confessor’s laws but also the anonymous Lichfield chronicle and the chronicle of Ingulphus of Croyland, two of Coke’s major sources in the preface to his Eighth Reports. The Lichfield chronicle tells how the Conqueror in the fourth year of his reign summoned twelve of the most discreet and wise men in every shire to declare, as Coke put it, “the integrity of their laws . . . without varying from the truth.” To Coke these were the Confessor’s laws, which became the first Magna Carta.20 And “Ingulphus,” which was known only in the nineteenth century to be a forgery, tells of the Conqueror’s making provision for their inviolate observance. Ingulphus claimed to have carried a copy of the confirmed laws back to his monastery.21 In this connection Coke also made use of Roger de Hoveden’s chronicle, and it was often cited in this context.22
This is not the place to discuss at length the flow of medieval political literature into Tudor England in the generation before Coke wrote the highly influential historical prefaces to his Reports. Put simply, the volume of such literature was due to the advent of the printing press and to the interest in printing manuscripts displayed by such influential Elizabethan leaders as Matthew Parker, archbishop of Canterbury, Lord Burghley, and Sir Francis Walsingham. All of them were interested in establishing the continuity of Elizabethan institutions as a key to the stability of the Elizabethan state and church settlement.
Thanks to the researches of May McKisak, F. J. Levy, and Antonia Gransden, much is known about Parker’s role in particular. He was the first Englishman to organize the printing of a series of important medieval historical texts, doing so in the period from 1567 to 1574. Chief among them was Matthew Paris’s Greater Chronicle, a prime historical source for Magna Carta and King John’s reign, printed in 1571 and reprinted in 1589 and again in 1640. Relying on Paris’s account, Parker also wrote a book on Stephen Langton, who allegedly supplied the barons with Henry I’s coronation charter. Parker is equally memorable as founder of the Society of Antiquaries, with some forty members, that met from 1572 to 1604 and again in 1614. Lambarde belonged, and it is now known that there was a direct link between his publication of Archaionomia and Burghley.23
Another notable figure in this context was the very learned Sir Henry Savile, Elizabeth’s Greek tutor and warden of Wadham College. He, too, moved in high political circles. He was the associate of Burghley and Walsingham, and James I later knighted him. His Rerum Scriptures (1596, 1601) contained a host of medieval chronicles, including Ingulphus. By the end of the sixteenth century, thanks to Parker and Savile, in particular, there had been a great influx of medieval political literature concerned with the events that Holt describes. Witness the appearance of such medieval chronicles as Matthew Paris’s Greater Chronicle and also those associated with Eadmer, Florence of Worcester, William of Malmesbury, Henry of Huntingdon, Roger de Hoveden, and Ingulphus.24 Any doubt that this development is related to the prosperous course of ancient constitutionalism in the Stuart century is removed by even a casual look at the authorities cited in Coke’s historical prefaces. That Stuart polemicists put the prefaces to good use in their tracts appears from William Prynne’s enormously influential Soveraigne Power of Parliaments (1643) and his very revealing Third Part of a Seasonable, Legal and Historical Vindication (1655); Bulstrode White-locke’s Notes uppon the Kings Writ, not published until 1766 but written in the late 1650s; and William Petyt’s Ancient Right of the Commons of England Asserted (1680). The evidence is overwhelming that medieval political literature centering on the origins of Magna Carta and its relationship in the contemporary view to Saxon England had a secure place in Stuart political thought.
In short, Holt has identified a major new source of ancient constitutionalism, and his findings, though he does not draw the conclusion explicitly, point to an accepted view by the seventeenth century that the ancient constitution was a Saxon constitution with the Confessor as its founding father and patron saint. At the same time Holt’s analysis supports Pocock’s theory that ancient constitutionalism was more than the response of the moment in Stuart politics. Viewed as resulting from an encounter between a common law mind-set and a medieval constitution, it did have deep roots in the past, as Pocock suggests. On the other hand, Holt’s association of medieval political literature, or elements of it, with Coke and Lambarde has the effect of downgrading Pocock’s idea that the historical views of Stuart Englishmen were largely shaped by the existence of only one important law system in their history, that of common law.25
According to Pocock, it was not until legal antiquaries became aware of the existence after 1066 of a rival system of feudal law, which interacted with Saxon law, that it was possible for them to see that the common law had grown up under varying influences and at different times. Not only was feudalism not “discovered” until the latter part of the seventeenth century, Pocock considers that in late Tudor England there was “a great hardening and consolidation of common-law thought,” which explain the tone of Coke’s historical writings. Pointing out that the common law interpretation was probably “the result of deep-seated and unconscious habits of mind,” he expressed the view in 1957 that a detailed study of Tudor common law thought was needed to learn how and when that interpretation arose.26
Christopher Brooks’s “The Place of Magna Carta and the Ancient Constitution in Sixteenth-Century English Legal Thought” is such a study, and his findings are negative. He accepts Pocock’s depiction of Coke’s ideas as accurate and admits the effectiveness of the “ancient constitution” in early Stuart political controversy but draws back from the proposition that ancient constitutionalism “had always been the major constituent of English legal thought” and “part of a longer tradition within English law.” Nor does he discern in Tudor England a common law mentality on the order of that assigned by Pocock to Stuart England, although he thinks the picture somewhat different by the 1590s.27
Brooks’s analysis draws on a wide variety of sources: the writings of Sir John Fortescue, Christopher St. Germain, and Thomas Starkey and also materials from legal textbooks, tracts, lectures at Inns of Court, and the like. From his examination he concludes that the legal mind of Tudor England was essentially an inheritance from Aristotelianism, as formulated by medieval schoolmen, and Rome’s legal literature, as transmitted by Renaissance humanism. Nor does he find any “systematically thought-out view that customs were valid simply because long usage had proved their utility and justness.”28 Moreover, Tudor society, concerned about social, economic, and political upheaval, was preoccupied with law and order rather than libertarian ideals. In this climate of opinion Magna Carta was viewed not so much as a charter of liberties as a statute to correct defects in common law. Finally, Brooks considers that Coke took up the language of ancient constitutionalism in response to the polemics of the Jesuit controversialist Robert Parsons, who at the time was causing a flutter at the Stuart court. In sum, the legal mind of this period is best described as part of a broader Renaissance tradition with Continental overtones, and Coke’s political reflections were not the outcome of a tradition of legal thought in Tudor England.29
There is, however, a resource not mentioned by Brooks that might have yielded more promising results. The working libraries of lawyers often contained the Modus and, more rarely, the Mirror of Justices. Both were pillars of ancient constitutionalism and as such highly esteemed by Coke. Moreover, if the Mirror was less likely to be found in these libraries, it is known that it was being handed around in manuscript among lawyers. The Society of Antiquaries put the Modus to good use; one of its members, Francis Tate, supplied the manuscript from which the Mirror was published. Lambarde, also a member, reported in his Archeion (1635)—apparently completed by 1591—that the Modus was to be seen in many hands.30 His testimony is of great interest because he was quoted on ancient constitutionalism in the late seventeenth century as often as Coke; and their names were often coupled as authorities for its principles.
Yet Brooks’s findings are important and his research admirable. On balance these eliminate from further consideration Pocock’s suggestion that a study of the Tudor legal mind might turn up decisive evidence of a long-standing tradition of ancient constitutionalism that flowered in Stuart England. But Pocock’s subtitle, A Study of English Historical Thought in the Seventeenth Century, points to another quarter that would bear investigation in this context. If Brooks closed off one possibility, why not examine the newly printed medieval literature to which Holt called attention? To be sure, common law assumptions had played a conspicuous role in bringing about ancient constitutionalism; but so, too, had the medieval historical materials in which legal antiquaries sought evidence for an immemorial constitution. In closing one door, Brooks opens another; in this sense his paper complements Holt’s. In their respective ways, one negatively, the other positively, they point to the ancient constitution as a Saxon constitution and to the possibility of a lengthy political tradition that explains the nature of Coke’s response to Parsons.
Although Paul Christianson’s “Ancient Constitutions in the Age of Sir Edward Coke and John Selden” contains little pertaining to Holt’s and Brooks’s papers, there is at one stage of his discussion an important section on Selden that fits the mold. What Christianson sets out to do is to construct several models of the ancient constitution based on materials drawn from 1610. He then tests these by reference to the parliamentary debates on the Petition of Right. It should be stated that his intention seems to be one of supplementing Pocock’s model but not supplanting it. Christianson’s first model comes from James I’s much discussed speech of March 21, which is described here as the source of a “constitutional monarchy created by kings.” Although one typically thinks of ancient constitutionalism in relation to anticourt elements, Christianson seems not to think this point requires comment, and he proceeds to explain that James as king in England was very different from the monarch who in Scotland expressed his ideas in the Trew Law of Free Monarchies (1598). That tract has been described as “a powerfully argued justification of divine right which drew on Scottish history as well as the Old Testament to prove its case.” And the same writer, noting that it was “informed by both relentless logic and a high sense of awesome responsibility,” concluded that it “contained the awful warning that ‘the kings . . . in Scotland were before any estates . . . before any parliaments were holden, or laws made . . . and so it follows of necessity, that the kings were the authors & makers of the laws, and not the laws of the king.”31
The second model is in a parliamentary speech of Thomas Hedley, making, for the time in which it was made, an unusually sweeping claim for “the absoluteness of the common law.”32 He asserted, according to Christianson, a “constitutional monarchy governed by the common law.” The third model is one of “mixed monarchy,” meaning a parliamentary monarchy on the lines enunciated in Sir James White-locke’s famous speech of 1610. The latter had advanced extremely high claims for the king in parliament. Christianson attributes to Selden the same doctrine of parliamentary sovereignty, employing the following language: “In contrast to King James and Thomas Hedley, Selden fashioned an image of the ancient constitution as a mixed monarchy in which kings, clergy, nobles, and freemen had shared sovereignty from the very beginning.”33
Although Christianson’s enterprise and skill in constructing three new models of the ancient constitution command admiration, it is very difficult to introduce three models satisfactorily without more explanation than is provided here. For example, it is not altogether clear that James’s speech, taken by itself, will bear the weight that has been placed upon it. A listener could be forgiven for thinking that he was being reintroduced to the Trew Law as the king began. Thus James spoke of kings being justly called gods because of their great power and adduced as one sign of this great power that kings were makers of law. According to James, laws were “properly made by the king only; but at the rogation of the people”—a description that commended itself to that notable champion of high royal power, Sir Robert Filmer. Further, kings could make and unmake their subjects and were accountable only to God.
But as the king proceeded, the tone of his speech moderated. Distinguishing between the original state of kings and that of settled monarchies, James stated that every just king in a settled kingdom made a compact with his people when he made laws. Unless he ruled in accordance with them, he degenerated into a tyrant. To Christianson, these words meant that James had made a creative leap forward in which he subverted the standard constitutional version of power derived from the people. In the result he appropriated “the strengths of constitutional government (stability and the consent of the community of the realm), and still maintained the creative initiatives of monarchs.” Finally, Christianson asserts that Charles I in his Answer to the Nineteen Propositions (June 1642)—which I have urged elsewhere introduced a new era of political definition—was “driven back to the interpretation [of the kingship] announced in . . . 1610 by his father.”34
Also to be considered in this connection are Francis Oakley’s comments. He, too, notes the change of tone as the speech proceeds, and like Christianson he thinks the king at times conciliatory. But he also calls attention to James’s insistence that the laws were his laws, and he thinks it likely that the king’s intention was “to soften for his audience the somewhat uncompromising contours of an otherwise distressingly absolutistic effusion.”35
The second model comes from Hedley’s speech on impositions in 1610. In it he declared that parliament had its “power and authority from the common law, and not the common law from the parliament.” This was evidenced by parliament’s inability to change the laws of succession, bind future parliaments, or abrogate the whole of the common law. But, significantly, parliament could amend that law. This meant, Christianson concludes, that in Hedley’s view “common law reigned supreme in the ancient constitution” and, more specifically, “assigned all powers and privileges within the realm.” Yet the mere fact that parliament could amend the common law gives one pause, suggesting as it does that common law was not in fact supreme. Another discordant note comes from the statement that in Hedley’s opinion one parliament could not bind another—a proposition generally identified with a theory of parliamentary sovereignty. In any case, one would like to know more about his outlook compared with such contemporaries as William Hakewill, who, like Hedley, opposed impositions. Hakewill, who has been lauded as “the best historian in the commons,” had no doubt that if a statute were involved, it carried all before it. There is much reason for thinking that this, too, was Coke’s position, though Christianson states otherwise.36
The third model is that of “mixed monarchy,” a term used here to denote the sovereignty of the king in parliament. It would have been helpful if Christianson had explained more fully his choice of terminology. One is left wondering if Selden himself used it and if so in what context. For the term was used in a general fashion before 1642 but took on a fixed, technical meaning after Charles I’s Answer became public. That is, after 1642 it had implications much further reaching than Christianson’s usage suggests.37 Putting this subject aside, it should be said that his further comments on Selden and “mixed monarchy” are of very considerable interest in light of what has been stated in this commentary about a Saxon constitution.
Selden is described as having found the first and lasting framework of the ancient constitution in the Saxon invasion which established the kingship, parliament, and Germanic customs in England. This was the situation when the Norman conquest intervened; but Selden, though tempted by his newly acquired knowledge of feudal tenure, drew back from any sweeping change in 1066, deciding in fact that the Conqueror’s laws were so much like those of the Confessor that the Saxon constitution had been preserved. In the following centuries feudal and Saxon laws blended to produce a “mixed monarchy” presided over by the three estates of king, lords, and commons, a view of the constitution very different, it is stated here, from Coke’s and Sir John Davies’s, the latter also prominent in Pocock’s discussion.38 In an earlier work, profitably read in conjunction with this essay, Christianson points out that Selden’s main conclusions regarding continuity at the conquest were reached by way of the Lichfield chronicle and Hoveden’s chronicle, both of which shed light on the Confessor’s laws.39 Coke, too, made use of these materials, as earlier noted.
Christianson’s paper concludes with a substantial analytical section on the debates of 1628, in which he finds Selden upholding “mixed monarchy,” Coke assuming a position more like Hedley’s, and Attorney General Heath, though he flirted with an argument based on reason of state, returning ultimately to James I’s “constitutional monarchy created by kings.”40 Though Christianson does not say so, Selden by the 1650s, disillusioned by parliamentarian versions of Charles I’s Answer, redefined the three estates to exclude the king, an action scuttling one of the most vital parts of the mixed monarchy that Christianson has described.41 On the other hand Selden may have believed in the sovereignty of the king in parliament as early as 1610, but if so more detail about his outlook in this respect would have been welcome. The problem is that very few Englishmen seem to have thought in terms of a full-fledged theory of parliamentary sovereignty before the civil war concentrated their minds on the issue.
In his “Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries” John Phillip Reid undertook the formidable task of discussing ancient constitutionalism over two centuries, a task the more difficult because of the attention he gives to the American colonies. Dealing at great length with the subject before him, he has among other things reminded historians that they do not possess a monopoly of wisdom in appraising the goals and activities of the legal antiquaries of Stuart England.
Reid’s analysis is distinctive because he is aware of the relationship between the common law principle of prescription and the ancient constitution. This is the only essay to make the connection, and it is a vital one. That relationship provides the frame of reference for much of what he has to say. According to Reid, contemporaries viewed the ancient constitution as “a timeless constitution of unchanging general principles” because they thought in terms of prescription. Although he makes no mention of the importance of “1189” in determining the legality of ancient rights and liberties, he places a high value on customary usage because it demonstrated consent on the part of the community over a long period of time and this consent was vital to political liberty. Accordingly, the ancient constitution, which appears from Reid’s evidence to be a Saxon constitution, was of cardinal importance in the history of liberty, and he writes admiringly of the ancient constitution for just this reason.42
The ancient constitution performed an indispensable service in his view in both the seventeenth and eighteenth centuries. In the seventeenth century it protected English rights and liberties against the crown; in the eighteenth it performed a similar function for the colonies who were threatened with arbitrary government by a sovereign parliament at Westminster. The theory of parliamentary sovereignty, which Reid finds inimical to liberty and the rule of law, is viewed here as a latecomer to the scene, becoming the ruling principle of the English constitutional system only in the nineteenth century.43
In Reid’s opinion the preferable method of studying these centuries is by way of “forensic history” rather than the historical methods of modern scholars. Finding the ancient constitution to be “almost exclusively a matter of law, seldom of historiography,” he recommends the adoption of a legal perspective that would enable the historian to see that the protagonists of the ancient constitution, as well as the opponents, were essentially filing briefs on behalf of the causes to which they were devoted, their interest in history extending only to its utility in presenting their case. Following out this line of reasoning and inspired by the values described above, Reid has little patience with twentieth-century historians who have lavished praise on Dr. Robert Brady. Whatever his virtues as a historian, the most important fact about him was that he was the enemy of political liberty and the advocate of arbitrary government.44
In preparing their tracts Stuart advocates of ancient constitutionalism worked, as Reid rightly states, from the common law principle of prescription. It was central in the seventeenth-century political literature that he is discussing. Unfortunately, however, apparently lacking an awareness of the role of 1189 in common law reasoning at this time, Reid is in no position to deal adequately with the issue that defines their argument. This appears from his references to Sir Robert Atkyns—a Stuart judge and Whig polemicist active in the Brady controversy of the 1680s. Reid describes Atkyns as attacking as “Innovating Writers” those historians who by dating the House of Commons from Henry III’s reign “would destroy Foundations, and remove . . . Ancient Landmarks, and the Ancient and Just Limitations and Boundaries of Power and Authority” but fails to clarify Atkyns’s objection to this dating. The point is that high Tory writers were in the habit of placing the beginnings of the first House of Commons in 1265 (49 H.III) because it was the year of the earliest extant writ of summons to that House. That is, it was founded within time of legal memory, and this meant that the Commons had no legal base independent of the crown. It followed, accordingly, that the king could summon, prorogue, and dissolve that House at will, indeed, not even summon it at all—a conclusion dismaying to ancient constitutionalists who favored frequent parliaments.45
Reid’s argument is flawed in other ways. For instance, he does not realize that Prynne, disillusioned by the outcome of the civil war, switched sides and became a crypto-royalist. Rewarded at the Restoration with the position of keeper of the tower records, he was one of the innovating writers whom Atkyns condemned.46 Nor does Reid point out that the doctrine of parliamentary sovereignty, “arbitrary” in colonial eyes, would not have seemed this way in England, where it had a much longer history than he allows. Nor does he think in terms of an ancient constitution in which a sovereign parliament figures, though this could easily be the case in the right set of circumstances, given the place of the Modus in Stuart political thought during most of the century. Nor, finally, is it at all clear that the ancient constitutionalism that Christianson associates with Selden or with William Petyt, the major Whig polemicist in the Brady controversy, amounted to no more than a legal brief with historical sources used as authorities.
Compared with Selden, whose scholarly credentials are widely praised, Petyt, as a practicing lawyer with a substantial practice, comes closer to Reid’s description. He did think of Brady as an enemy of liberty, and he turned to the English past in search of a defense against Brady’s thoroughgoing assault on Cokean historiography. Yet Petyt was also a devoted antiquarian who spent much of his life in search of the primary source materials from which history is written. At the Revolution he became keeper of the tower records. One of the legal counsel that advised the Lords on the use of the words original contract in writing the Bill of Rights, he couched his response in historical terms,47 and his personal library was full of the medieval political literature mentioned above. To cite but a few examples, he had the medieval histories associated with Matthew Paris, Matthew of Westminster, Florence of Worcester, Hoveden, Lambarde (Archeion, Archaionomia, Perambulation of Kent), Ingulphus, and a chronicle that has been wrongly attributed to John of Brompton. He also had Selden’s Jani Anglorum, History of Tithes, and Notes on Fortescue.48 A personal library of this dimension hardly suggests a common lawyer in search of historical authorities for a brief.
On the other hand, Reid makes an important contribution in recognizing that the common law principle of prescription provides the appropriate point of departure in the study of ancient constitutionalism, especially for the seventeenth century; and he has accumulated substantial data, drawn primarily from English sources, for the proposition that the ancient constitution was commonly seen as a Saxon constitution. Moreover, there is need to remind historians, carried away by the revisionism currently underway in early Stuart history, that principles and ideology were at work in the struggles between the Stuart kings and their subjects. J. H. Hexter certainly thinks so.49 Nor can Reid be faulted for reminding twentieth-century scholars that the Stuart historians so influential in shaping ancient constitutionalism were usually common lawyers who applied common law reasoning to historical literature. But whether Reid’s zeal for “forensic history” will play as well is a judgment best left to readers of his paper. Finally, it may be doubted that his view of Brady as a historian will go unchallenged.
These carefully prepared essays will quickly move into the stream of comment on ancient constitutionalism generated by Pocock’s seminal study. On some points they will supplement his analysis or supplant it, but at the least they will raise serious questions. Witness, for example, Holt’s exposition of a medieval ancient constitution centering on the Confessor’s laws and his suggestions about the manner in which that constitution reached Stuart England. And Brooks’s findings are valuable in relationship not only to Pocock’s study but also to Holt’s, clearing the way for a new focus on the rising tide of medieval political literature in late Tudor England before Coke began his historical prefaces. Then there is Christianson’s innovative attempt to create three models of the ancient constitution that invite comparison with Pocock’s conception. To these should be added Reid’s adversarial account of the ancient constitution and his advocacy of forensic history. Finally, all four authors, though they wrote within Pocock’s parameters, adduce evidence for an ancient Saxon constitution with historical origins. This aspect of the essays has provided a unifying thread in discussing their contents and will need to be considered in future analyses of Pocock’s image of the ancient constitution.
There is a larger picture here that can be briefly sketched. First of all, it seems clear that the ancient constitutionalism that Pocock introduced to the scholarly world has a broader range than has hitherto been thought. It runs, so these papers suggest, from the baronial rebellion in the name of the Confessor’s laws to Reid’s ancient Saxon constitution of the eighteenth century, which was influential in both England and America. This sweep of time encompasses Fortescue’s contribution to the stock of political ideas. His De Laudibus contains his celebrated account of England as a mixed government, termed here a dominium politicum et regale, and a spirited assertion of the rule of law, both sources of American constitutionalism. By the time that the doctrine of the ancient constitution penetrated colonial America, new elements had created a more complex picture. The first of these was the outpouring of medieval political literature under the impact of the printing press and with the encouragement of political figures high in the ruling circles of Elizabethan England. Another was the development of political pamphleteering on a large scale in Stuart England. In the course of the seventeenth century political literature took on a life of its own under the influence in particular of Charles I’s Answer and the Brady controversy in the decade before the Glorious Revolution; transformed by the struggle between the Stuart kings and their subjects, it provided a noticeable political impulse in colonial America. From this source colonial leaders received a veritable storehouse of political ideas and practices, focusing on the original contract, the rule of law and government by consent, Magna Carta as a reaffirmation of Saxon liberties including trial by jury and the principle of no taxation without representation, the relationship between king and parliament, and the like. 50
For this last point, the curious should turn to the wealth of evidence in Trevor Colbourn’s Lamp of Experience (1965), which tells so much about the ancient Saxon constitution in colonial intellectual life. One need only to examine his list of books in public and private colonial libraries and compare their contents with what is now known about Stuart polemical literature to recognize the extent of the interaction between England and colonial America in this respect. Little wonder, given these circumstances, that the Declaration of Independence, so Reid states, was first published in book form in a collection entitled The Genuine Principles of the Ancient Saxon, or English Constitution (1776).51 Its contents were largely drawn from Obadiah Hulme’s Historical Essay on the English Constitution (1771), which, Colbourn notes, “rounded out the colonists’ picture of their Saxon ancestors,” who had founded their government, in Hulme’s words “upon the common rights of mankind.”52 To Bernard Bailyn, the Historical Essay represented the historical understanding that underlay American constitutionalism on the eve of independence.53 And, it might be added, in the years before the founding fathers gathered at Philadelphia preparatory to writing the Constitution to which the American Bill of Rights would soon be added.
There follows the text in Latin and in English translation of Magna Carta of 1225, the third Great Charter of Henry III. This is the definitive version that received statutory confirmation by Edward I in 1297, thereby entering the Statutes of the Realm as the first English statute. Thus, it is the Great Charter ultimately relied upon by Sir Edward Coke, John Selden, and the other great common lawyers of the seventeenth century. By then, according to Coke, it had been confirmed at least thirty-two times.
[1. ] This research was supported in part by a grant from the Faculty Research Award Program of the City University of New York.
[2. ] Christopher Hill, Puritanism and Revolution (London, 1958; first published in Mercury Books, 1962), 60, more generally 57–67.
[3. ] I first expressed this view in a paper prepared for a seminar on the ancient constitution (April 3–4, 1986). This seminar was part of a larger program on political thought in a series offered by the Folger Institute Center for the History of British Political Thought. The subject is more fully developed in my “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought, 1450–1700, ed. J. H. Burns with the assistance of Mark Goldie (Cambridge, England, 1991), 374–411.
[4. ] J. G. A. Pocock, “Robert Brady, 1627–1700: A Cambridge Historian of the Restoration,” Cambridge Historical Journal 10:2 (1951): 189. See also his The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, England, 1957), 41.
[5. ] Pocock, Ancient Constitution, 36, 37, 51–52, and “Robert Brady,” 189.
[6. ] The Modus is discussed in Nicholas Pronay and John Taylor, Parliamentary Texts of the Later Middle Ages (Oxford, 1980), 51, 56, and passim; but see especially p. 80 for the proem. Also pertinent is E. Evans, “Of the Antiquity of Parliaments in England,” History 23 (December 1938): 207–9. The Mirror of Justices, ed. W. J. Whittaker, intro. F. W. Maitland (London, 1895), 8. See also The Reports of Sir Edward Coke, Knt., in English, In Thirteen Parts Complete . . . , revised and edited by George Wilson, Serjeant At Law, 7 vols. (London, 1776–1777), preface to the Ninth Reports, i–ii, vii, ix.
[7. ] In this connection see the valuable statement in William Prynne’s “Preface to the Reader,” An Exact Abridgement of the Records in the Tower of London (London, 1657), n.p. Prynne recommended turning, in particular, to the medieval historians Matthew of Paris, Matthew Westminster, William of Malmesbury, Henry of Huntingdon, Roger de Hoveden, Simon Dunelmensis, Ralph Diceto, Ralph Cistrensis, and Thomas of Walsingham and to the chronicle attributed to John Brompton, which was especially associated with laws attributed to Edward the Confessor. See also Stowe 543, F73b in the British Library. This is No. 13: “The opinions of Mr. Selden and Mr. Prynne, concerning the deplorable loss of our ancient parliamentary records.”
[8. ] Sir Edward Coke, The First Part of the Institutes of the Laws of England (1628), lib. 2, cap. 10, sec. 170. See also Sir Matthew Hale, The History of the Common Law of England, ed. Charles M. Gray (Chicago, 1971), 17–18.
[9. ] Hale, History of the Common Law, 3–4.
[10. ] Ibid., 4.
[11. ] James Tyrrell, Bibliotheca Politica, 2d ed. (London, 1727), 420, 421, 425, 426. This was published initially at the Revolution (1689). See also Sir Roger Twysden, Certaine Considerations upon the Government of England, ed. John Mitchell Kemble (London, 1849), 119, 120, thought to have been written in the 1650s.
[12. ] Twysden, Certaine Considerations, 126–27. William Hakewill in Commons Journal 1 (December 17, 1621): 667. See too E. Nicholas, Proceedings and Debates of the House of Commons, in 1620 and 1621 (Oxford, 1776), ii, 346; William Petyt, “A Discourse,” Ancient Right of the Commons of England Asserted (London, 1680), 39–49; Anthony Ellis, Tracts on the Liberty Spiritual and Temporal of Protestants in England (London, 1767), pt. 1, 463. Ellis was working from Tyrrell and Petyt.
[13. ] Preface to the Eighth Reports, in Reports, ed. Wilson, x; Hale, History of the Common Law, 5.
[14. ] Holt, herein, 51–59.
[15. ] J. C. Holt, Magna Carta and Medieval Government (London, 1985), 17.
[16. ] F. W. Maitland, Constitutional History of England (Cambridge, England, 1961), 100. Recognition of the high symbolic importance of the Confessor’s law in Stuart political thought moved forward in a major way with the publication of Janelle Greenberg’s pioneering “The Confessor’s Laws and the Radical Face of the Ancient Constitution,” English Historical Review 104:412 (July 1989): 611–37.
[17. ] Holt, herein, 68–71.
[18. ] Ibid., 71–72. Richard Grafton, An Abridgement of the Chronicles of England (1562), ii, 2; John Speed, The History of Great Britain under the conquests of the Romans, Saxons, Danes and Normans (1611), i, 416; Samuel Daniel, The Collection of the Historie of England (1617), 39.
[19. ] Holt, herein, 72–73.
[20. ] Coke, preface to the Eighth Reports, in Reports, ed. Wilson, iv–v.
[21. ] Ibid., v; Ingulph’s Chronicle of the Abbey of Croyland, trans. Henry T. Riley (London, 1854), 175.
[22. ] Preface to the Eighth Reports, in Reports, ed. Wilson, vii.
[23. ] Lambarde carried out the venture under the supervision of Laurence Nowell, Burghley’s protégé. F. J. Levy, Tudor Historical Thought (San Marino, Calif., 1967), 136, 141. See also David Douglas, English Scholars, 1660–1713, 2d ed. (London, 1951), 69. That the publication of Archaionomia was deemed eventful also appears from Parker’s commendation in the preface to Asser’s biography of Alfred the Great, which he printed. May McKisak, Medieval History in the Tudor Age (Oxford, 1971), 79. See also Philip Styles in English Historical Scholarship in the Sixteenth and Seventeenth Centuries, ed. Levi Fox (London, 1956), 51, and Samuel L. Kliger in The Goths in England (Cambridge, Mass., 1952), 21–25.
[24. ] Antonia Gransden, Historical Writing in England, c. 1307 to the Early Sixteenth Century (New York, 1928), ii, 479; Douglas, English Scholars, 164–67.
[25. ] Pocock, Ancient Constitution, 30, 58–59. For comment revealing that Pocock’s idea is now controversial, see R. J. Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688–1863 (Cambridge, 1987), 4.
[26. ] Pocock, Ancient Constitution, 31–32.
[27. ] Brooks, herein, 97–100, 103–4.
[28. ] Ibid., 97.
[29. ] Ibid., 102, 78–114, passim.
[30. ] Maitland, “Introduction” to The Mirror of Justices, xi. See also Pronay and Taylor, Parliamentary Texts, 18–21, 57, 57, n. 163.
[31. ] Jenny Wormald, reviewing Minor Prose Works of James VI and I, ed. James Craigie, in English Historical Review 103:407 (April 1988): 423–24. See also Christianson, herein, 120–25.
[32. ] Margaret Judson, Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New York, 1964), 233. Pocock in his 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), 270ff., has also given Hedley much attention.
[33. ] Christianson, herein, 132.
[34. ] I am using the text of James’s speech as it appears in Francis Oakley, Omnipotence, Covenant, & Order (Ithaca, N.Y., 1984), 96–97, 104. The reference to Filmer comes from Patriarcha and Other Political Works, ed. Peter Laslett (Oxford, 1949), 119. Christianson, herein, 122, 182–84. Corinne Comstock Weston and Janelle Renfrow Greenberg, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, England, 1981), 35ff.
[35. ] Oakley, Omnipotence, 118.
[36. ] Christianson, herein, 128–32, 139. For Coke’s view, see First Institutes, lib. 2, cap. 10, sec. 170; for Hakewill’s, The Libertie of the Subject (London, 1641), 98–99. This is Hakewill’s speech on impositions, which the House of Commons of the Long Parliament ordered to be published along with Prynne’s Soveraigne Power of Parliaments and the last three volumes of Coke’s Institutes. It is perhaps significant that it did not choose to honor Hedley in this way. See also Conrad Russell on Hakewill in Parliaments and English Politics, 1621–1629 (Oxford, 1979), 141, n. 3.
[37. ] Weston and Greenberg, Subjects and Sovereigns, chap. 3.
[38. ] Christianson, herein, 132–43.
[39. ] Paul Christianson, “Young John Selden and the Ancient Constitution, ca. 1610–1618,” Proceedings of the American Philosophical Society 128:4 (1984): 306.
[40. ] Christianson, herein, 151–81.
[41. ] Weston and Greenberg, Subjects and Sovereigns, 5.
[42. ] Reid, herein, 228–34.
[43. ] Ibid., 244–49.
[44. ] Ibid., 256–69. There is a great deal on Brady in this paper, but the indicated pages give an example of Reid’s criticism.
[45. ] Ibid., 252, 259–63. Atkyns—relying on Coke’s First Institutes, lib. 2, cap. 10, sec. 170—makes it manifest in his An Enquiry into the Power of Dispensing with Penal Statutes (London, 1689), 21, that he considered legal memory to begin in Richard I’s reign. Reid uses at one point Ellis’s Tracts on Liberty, as they were called; and Ellis takes unequivocally the same position. The pertinent page is in pt. 1, 461. See note 12 above. Ellis was much read in the American colonies.
[46. ] Weston and Greenberg, Subjects and Sovereigns, chap. 5, esp. 126, 131.
[47. ] Ibid., 256.
[48. ]Catalogue of Manuscripts in the Library of the Honourable Society of the Inner Temple, ed. J. Conway Davies (London, 1972). See in particular the listings under MS 512, volume M. Also see note 7 above.
[49. ] See, for example, Parliament and Liberty from the Reign of Elizabeth to the English Civil War, ed. J. H. Hexter (Stanford, 1992).
[50. ] An eighteenth-century tract that carried the ideological message of Stuart England to colonial America is Roger Acherley’s Britannic Constitution, 2d ed. (London, 1759). He argued from prescription and associated the idea of an original contract with both the Confessor’s laws and Charles I’s Answer. See in particular 140ff., 168, 497.
[51. ] Reid, herein, 186.
[52. ] H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill, N.C., 1965), 30–31. See also Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), 81–83 n. 26, 183–84. Hill, Puritanism and Revolution, 94–99.
[53. ] Bailyn, Ideological Origins, 184.
[* ] The text given here is that of Statutes of the Realm (London: Record Commission, 1810–1828), 1:22–25, as reprinted in Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis, 1948), 377–82. Italicized words indicate those passages not found in the original 1215 Magna Carta of King John which were introduced in 1216, 1217, or 1225; numbers in parentheses refer to articles in the 1215 document.