Magna Carta in 16th Century English Legal Thought

Source: 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). Chapter: 2.: The Place of Magna Carta and the Ancient Constitution in Sixteenth-Century English Legal Thought (Christopher W. Brooks).

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The Place of Magna Carta and the Ancient Constitution in Sixteenth-Century English Legal Thought, by Christopher W. Brooks

Legal thought and questions about the relationship between legal ideas and other strains of political and social theory are important and interesting aspects of sixteenth- and seventeenth-century English history, but they are subjects which have suffered in recent years both from scholarly neglect and from misunderstanding. The neglect can be explained partly by reference to the sociology of knowledge. British universities, which were founded and flourished for much of their history as training grounds for clerics, have recently been much more successful in producing students of ecclesiastical history and religious ideas than of legal history and juristic thought. At the same time much recent writing on the political and social history of the period, such as the so-called revisionist reinterpretations of the causes of the civil wars of the mid-seventeenth century, has tended to discount the role of ideas of any kind, much less legal ideology, in the general history of the period.1

This neglect is also, of course, one of the primary reasons for the misunderstandings of English legal thought which have accumulated over the years. In particular, it accounts for a failure to investigate or reinterpret a category of analysis which has for too long exercised a paradigmatic influence on our conceptions about the nature of legal ideas about politics and society—the notion of the common law mind. This concept became an orthodoxy in modern scholarship with the publication in 1957 of Professor J. G. A. Pocock’s magisterial study of English historical thought, The Ancient Constitution and the Feudal Law. Concerned mainly with the attitudes of lawyers to the past and basing his thesis largely on the works of Sir Edward Coke and his contemporary Sir John Davies, Pocock postulated a typical common law view of politics and society which was essentially a forerunner of that made famous by Edmund Burke in His Reflections on the Revolution in France (1790). According to Pocock, the key to the common law mind was the assumption that English law had no history, that it had been virtually unchanged by any of the major or minor upheavals in the history of England either before or after the Norman Conquest. English lawyers thought that English laws were the best laws because they represented the product of immemorial custom, a kind of mystical process by which the common law had proven itself to be satisfactory to the English through constant usage from a time beyond the written records or memories of men. In addition, the common lawyers completely denied that the civil law had ever had any influence in their country, and they were also extremely insular in their refusal to consider jurisprudential ideas which were contained within the civil law tradition or to wake up to the advances in historical scholarship which were being made by Continental humanist legal scholars such as Budé, Cujas, and Hotman.

Although Pocock’s own study concentrated on the history of historical thought, he also believed that the “common law mind” had a wider application to the political history of the early seventeenth century, and this is a position which he has amplified in a recent restatement of the thesis. Coke and Coke’s ideas were part of a mentality which had an important place in the controversies between the early Stuarts and their parliaments. The lawyers’ idea of an unchanging legal tradition provided a standard, an “ancient constitution,” which could be used as a defense by the subject against the encroachments of the crown.2

There is no doubt that parts of this picture demand assent. Pocock’s interpretation of Coke’s thought is accurate, and “ancient constitutionalism” was put to effective use by lawyers during some of the early Stuart parliaments, perhaps most notably in 1628. However, what is in doubt is whether “ancient constitutionalism” had always been the major constituent of English legal thought, whether it was part of a longer tradition within English law. Furthermore, so much of the debate to date has been about legal attitudes toward history that we tend to lose sight of more general legal attitudes toward the law, politics, and society. Consequently it is far from clear how significant the ancient constitution was within the nexus of thought and practice which made up the intellectual environment of the legal profession and which was transmitted by the lawyers to the wider public.

Integral to both questions is the problem of what it was that might have made up the legal mentality of both lawyers and laymen (of different social groups) during the early-modern period, and the ways in which these mentalities may have changed over time. The object of this paper is to approach this problem by looking first at the structure of legal thought in general during the sixteenth century. Then it attempts to find a place for the history of that greatest of documents of the “ancient constitution,” Magna Carta, within it. In general, the picture that emerges is quite different from that of the common law mentality we have known for so long. In the first place, English legal thought in this period is best seen as part of the broader European tradition of Renaissance jurisprudence rather than sui generis, and for that reason I have perhaps gone overboard in avoiding the term common law mind. Second, but perhaps not surprisingly when it is considered that the Tudor state frequently presented itself as an absolute monarchy, sixteenth-century lawyers were as often concerned with order, and indeed the basic problem of political obligation, obedience, as with questions concerning the liberty of the subject. For both of these reasons, neither ancient constitutionalism nor Magna Carta, at least until the 1590s, was a very significant feature of legal thought. There was a distinctive legal mentality during this period, but it contained many branches. Ancient constitutionalism was only one of them, and a relative latecomer at that. Finally, the paper offers an account of the particular circumstances in the late sixteenth century and first decade of the seventeenth which led Coke to express for the first time an ancient constitutionalist account of English law and government. I conclude with some brief remarks on the broader significance of early-modern legal thought in the Anglo-American political tradition.

II

The sixteenth century was a great age for the English legal profession. From the 1530s, but especially from about 1560, there was a spectacular increase in the amount of litigation which came before the central courts, so that by 1600 the rate of litigation in the royal courts per 100,000 of population was about four times greater than it is today. At the same time, the legal profession centered on the Westminster courts grew from a relatively small band of lawyers to a social group with a profile relative to the size of the population as a whole that was little different from that of the early twentieth century. It is not surprising, therefore, that much Tudor social and political thought, and not just that produced by lawyers, was articulated in legalistic terms.3

Yet in spite of this, an attempt to identify the most basic attitudes of English lawyers toward their law and its place in society does have to confront problems of evidence. The English legal profession and English legal education had an overwhelmingly vocational orientation. Lawyers learned their craft at the Inns of Court in London rather than in the universities. The inns had a teaching function and some teaching exercises. Indeed, the sixteenth century can be said to have marked a high point in the history of the inns as intellectual centers, and this is important in considering the role of legal ideology in this period. Nevertheless, there were limits on the extent to which English lawyers were free to speculate about jurisprudential matters. The senior members of the inns were primarily active practitioners; no English lawyer earned his living exclusively from teaching or writing about the law.4 Hence, unlike the Continental university schools of law, the Inns of Court and the English legal profession produced few general works, even fewer which laid out with clarity the theoretical and philosophical foundations of the common law. The legal thought of the period must be pieced together from the examination of the odd textbook, one-off tracts, lectures delivered to students at the Inns of Court, and speeches made at meetings of courts such as quarter sessions and as-sizes.

English jurisprudence was not highly articulate, but it did consist of a number of identifiable assumptions and ideas. These can be most easily introduced by looking initially at De Laudibus Legum Angliae, a classic work written by Chief Justice Sir John Fortescue in the 1470s. Fortescue is frequently linked with Sir Edward Coke as a writer who exemplified the English legal tradition, and De Laudibus does contain a number of points which fit well with the stereotype of the “common law mind.” Fortescue compares foreign, especially French, legal institutions unfavorably with those of the English, and he does not like the civil law doctrine, “What pleases the prince has the force of law.” In addition, he held that, since English kings ruled both politically and regally, no English monarch could introduce new laws without the consent of the people.

These aspects of Fortescue’s thought are important, but the fact that they are familiar should not lead to the conclusion that he was writing in exactly the same mode as Coke was to do over one hundred years later. In most respects their approaches were quite dissimilar. Coke filled his works with constant references to the landmarks of the common law past such as the laws of Edward the Confessor, Magna Carta, and Littleton’s Tenures. By contrast, the writer to whom Fortescue refers most frequently is Aristotle, and De Laudibus is in essence an Aristotelian account of the place of law in society filtered through the interpretations of the medieval schoolmen. According to Fortescue, the grounds of English law were the divine laws which permeate throughout the universe, natural law, and human laws in the form of statute and custom. Divine law and natural law were ideally discovered either by revelation or by a kind of divine light which illuminated the intuitions of man. But, for obvious reasons, man’s knowledge of these sources of law was bound to be imperfect. Consequently, although human (or positive) laws were supposed to conform to the higher laws of God and nature, there were inevitably going to be some areas in which such guidance was unclear. In these circumstances, Fortescue thought that the maxims of the human law (in England the maxims of the common law) should be used as the basis for judicial decision-making. However, human laws contrary to the laws of nature were invalid, and, if necessary, there was no reason why human laws should not be amendable in order to bring them into line with the higher laws.5

Many similar opinions, although much more skillfully elaborated, can be found in another work which became a classic in the canon of sixteenth-century legal thought, Christopher St. German’s Doctor and Student. First published in Latin in 1523, this treatise aimed to lay down a set of rules about the circumstances in which men should be allowed to seek remedies in cases of conscience from the court of chancery; it is the fundamental early-modern statement about the grounds for equitable relief within the English legal system. But, although the objectives of the tract were in this sense fairly technical, the realization of them involved the use of quite sophisticated philosophical arguments about the nature of law. Furthermore, while much of Fortescue’s scholastic learning was culled from a fifteenth-century compendium of quotations, St. German enjoyed a reputation as a thinker with expertise in the common, civil, and canon laws as well as in philosophy and the liberal arts, and his concept of equity was drawn largely from the work of the fourteenth-century Parisian conciliarist Jean Gerson.

Doctor and Student, which is in the form of a dialogue, begins with a doctor of divinity asking a student of the common law about the grounds on which the law of England is based. The reply is that there are six grounds: the laws of God, the laws of nature (which in England are called the laws of reason), diverse general customs of the realm, maxims of the common law, diverse particular customs, and, finally, parliamentary statutes. A discussion then follows about the relationship among God’s law, natural law, and the positive laws of men. In general the conclusions are that human laws should agree with the laws of God and the law of nature as far as possible, but that in fact many laws, including some canon laws, are appointed purely for the sake of “political rule,” and therefore cannot be shown to be entirely valid according to the higher laws. For example, the student points out that in England the law of property is based only on the authority of a custom of the realm which is not contained in any writing or statute. He even wonders whether such a custom can be considered a sufficient authority for any law. The reply of the doctor is that a law grounded on custom is the most certain law, but it must nevertheless be understood that such a custom cannot be allowed if it is contrary to the law of reason or the law of God.6

Between the publication of Doctor and Student and the early seventeenth century there is no English law book which sets out so systematically an overview of the nature of law. Nevertheless, there is little doubt that the kind of scholastic thought which both Fortescue and St. German espoused survived largely intact into the reign of Elizabeth, which began in 1558. Quite apart from the fact that there were frequent references to both writers, Aristotelian teaching was an important part of the syllabus of the universities, and during this age of rapidly rising admissions, many more common lawyers than ever before prefaced their legal educations with a period of study at Oxford or Cambridge. Sir Thomas Egerton, the future Lord Chancellor Ellesmere, undertook extensive study of Aristotle at Brasenose College, Oxford, in the 1550s, and Sir Edward Coke’s library at Holkam was well stocked with the works of the Greek. In addition, Ellesmere and Elizabeth’s chief councillor, Lord Treasurer Burghley, were patrons of the leading late Elizabethan Aristotelian, Dr. John Case, whose Sphaera Civitatis, a commentary on the Politics, became a basic university textbook in the 1590s.7

The survival of scholastic jurisprudence can also be illustrated by examples drawn from everyday legal practice. The notion that law had to conform to the English version of the law of nature, right reason, remained fundamental. The decision-making process of the judiciary was discussed in these terms. In an age in which printed law reports were still anything but comprehensive, there was as yet no clearly established principle that past precedents should bind current decisions.8 Furthermore, right reason served as a basic principle for justifying the making of new statute law. For example, A Treatise Concerning Statutes or Acts of Parliament referred frequently to Doctor and Student in the course of developing an argument that existing laws which were not conformable to the laws of reason should be corrected by statute. In short, the anonymous author of this tract presents a justification for the mass of Elizabethan parliamentary legislation which is perfectly compatible with the views of Fortescue or St. German, but very far from vaunting the perfection of immemorial common law in the manner of Coke.9

However, if scholastic Aristotelianism and a fundamental outlook which stressed natural law theory were aspects of English legal thinking which may be said to have been inherited from the medieval past, there were also newer influences, or at least changes in emphasis, which arose out of the specific conditions of the sixteenth century itself. As is well known, the Elizabethan age in particular seems to have been obsessed with general fears of social and political chaos, and this was reflected in common law thought by a striking emphasis on obedience and law enforcement. To a large extent this was a product of the quite real threats posed to the realm by religious heterodoxy, the possibility of invasion by the most powerful country in Europe, Spain, and by the dislocation characteristic of a society in which the number of people was rapidly outpacing the capacity of the economy to employ them. Yet, this new strand in legal thinking also had identifiable roots in the intellectual inheritance of the English Renaissance.

In England, as elsewhere in Europe, the key to the Renaissance was the humanist movement, and humanism can be defined accurately, if rather generally, as simply a revival of interest in the classical literature of ancient Rome. Surprisingly perhaps, this early sixteenth-century classical revival had a considerable influence on the legal profession. In his De Laudibus, Fortescue identified lawyers with priests, but during the 1520s and 1530s, a new image began to emerge.10 The first evidence of this appears in one of the most important works of the English humanist movement, Sir Thomas Elyot’s The Boke Named the Governour. Elyot was the son of a judge, a member of the Middle Temple, and an associate of both Sir Thomas More and Thomas Cromwell. Like some other English humanists, he found the law French of the common law barbarous in comparison with the classical Latin that was his ideal. But the other notable feature of his work was the advocacy of a legal profession which modeled itself on the prudente of classical Rome. Elyot wanted a profession in which law and rhetoric were combined to produce men who did not simply grovel for fees, but who combined a knowledge of law with oratorical and rhetorical skills in order to serve their country as both effective lawyers and effective governors. His ideals were the historian Tacitus, the famous politician and jurisconsult Servius Sulpicius, and, of course, Cicero.11

To a very large extent, the ideal which was proposed by Elyot does seem to have been adopted by the English profession. It lay behind the evolution of the idea that barristers should be paid by honoraria or gratuity rather than set fees, and it is perhaps most convincingly exemplified by the fact that even Sir Edward Coke garnished his works with quotations from Cicero. Indeed, in the preface to the First Part of the Institutes, he pointed out to his readers that the fifteenth-century English lawyer Littleton had a coat of arms which contained “escalop shells, which the honourable Senators of Rome wore in bracelets.”12

Furthermore, English lawyers absorbed jurisprudential ideals from their ancient models, and in this respect they shared an outlook which had much in common with Continental legal thought. In his excellent book on Natural Rights Theories, Richard Tuck has suggested that from about the middle of the sixteenth century, the humanist lawyers of Continental Europe were much more interested in humanly constructed law, the law positive (or jus gentium) and civil remedies, than in abstract discussions of natural law. According to Tuck, the central characteristic of their attitudes toward law was a contrast between civilization and the rude and barbaric life of precivilized peoples. Moreover, the locus classicus of this view was contained in the first few pages of Cicero’s De Inventione, in which he gave an account of the origins of eloquence by comparing a time when men wandered the fields aimlessly and in danger of oppression with the time when a great man had formed them together into a civilized society. In general, eloquence and law came to be seen as the means whereby men moved from a naturally brutish life to one of civility.13

In England, these links connecting law, rhetoric, and the civilizing process were similarly emphasized by early-Tudor humanists. Thomas Starkey, one of the leading members of Thomas Cromwell’s “think tank” of intellectuals and propagandists, expressly embraced the ideal that law was one of the principal means by which rude nature was transformed,14 and Elyot’s Governour devotes many thousands of words to the task of trying to convince the aristocracy and gentry that they should give up their ignorant and warlike ways, acquire some book-learning, and take their proper place in the state as inferior magistrates.15

Among the lawyers, also, this notion that positive law was the prime defender of civilized life and a bulwark against its disintegration into a brutish state of nature was a constantly reiterated theme. For example, the preface of the 1572 edition of John Rastell’s important legal textbook, An Exposition of Certaine difficult and obscure wordes, begins with the general remark: “Like as the univerasall worlde can never have his continuance but only by the order and lawe of nature which compellethe every thing to doe his kinde: so there is no multitude of people in no realme that can continue in unitie and peace without they be thereto compelled by some good order and law.”16

At times, the very expressions used echo quite clearly the words of Cicero. English lawyers were particularly addicted to the formula found in De Legibus which postulated that without government and law the household, the city, the nation, and the human race could not survive. An early example occurs in a manuscript treatise written in the 1540s by the humanist, lawyer, and sometime reformer Sir John Hales, which is entitled “An Oration in Commendation of the Laws.” According to Hales, “If law be gone farewell love, farewell shame, farewell honestie, farewell truthe, farewell faith and all vertue. And in with deceipte, Crafte, subtiltie, p er iurye, malice, envie, discorde, debate, murder, manslaughter, tyrannye, sedition, Burnyng of houses, pullinge downe of Cyties and townes, ravishing of virgins, violation of widowes [etc.].” By contrast, law “reteynethe justice, justice causeth love, love contynueth peace, peace causeth quyet, Quyet causeth men to applie their industrie and fall to labour.”17 It is a litany which soon becomes familiar to any reader of Elizabethan law books.

For many English lawyers, the ideal of the rule of law was reified to almost totemistic proportions. In 1589, for instance, Sir Christopher Yelverton told an audience at Gray’s Inn, which was assembled to mark his promotion to serjeant-at-law,

Roman texts became a mine of aphoristic truths.19 Furthermore, many English barristers appear to have been quite familiar with works of Continental juristic humanism which shared their own assumptions about the importance of law to civilized life and which promoted the ideal that jurisprudence was the queen of all sciences. For example, William Lambarde, Sir John Dodderidge, and Sir Christopher Yelverton were all familiar with the work of Joachim Hopperus, a Flemish civilian who enjoyed a successful career under Philip II of Spain, and they, like many others, knew the works of Jean Bodin.20 Henry Finch’s Nomotexnia (The Art of Law), which was composed in the 1580s, followed Continental examples in attempting to apply Ramist logical techniques to English law.21 Late in the reign of Elizabeth, Dodderidge, who later became a judge, produced a bibliography for a treatise on the royal prerogative which he dedicated to Thomas Sackville, Lord Buckhurst, a major figure in Elizabethan government, who appears to have been at the center of a legal circle which also included Coke, William Fleetwood, and the translator of the Institutes of John Calvin, Thomas Norton.22 Dodderidge’s work was, of course, to be based on the records and constitutions of the common law, but he also intended to draw on works of divinity, philosophy, and the law of nations, “Imitatinge heerin a Learned Serjeant and afterward in the tyme of Kyng Edward the fourth a learned Judge who very well said that ‘when newe matter was considered whearof no former Lawe is extant, we do, as the Sorbonists and Civilians, resorte to the Lawe of Nature which is the Grownde of all Lawes and thene drawing that which is most conformable for the Common Wealthe do adjudge hit for Lawe.’” The proposed references range from the Bible and Thomas Aquinas, to Plato, Aristotle, and Aristotle’s ancient and modern interpreters. Then there are Machiavelli, Justus Lipsius, and French lawyers including Bodin and François Hotman.23

No less important, English lawyers also shared general humanist principles about the way in which law should be administered in any society. First, as John Hales put it in the 1540s, “if lawe be a rule where-unto every man shoulde reduce his lyvinge me thinketh it veraie necessarie, to put it in writinge to the intente the People might knowe what they oughte to doe and not hange in one man or in fewe learned mens head es.”24 Although many writers did not go this far in calling for the codification of the common law, there is no doubt that the advisability of making the law known to the population at large was a question frequently debated during the course of the later sixteenth century, and on the whole the argument was won decisively by the publicists.25

Second, lawyers argued that law was of value to society only if it was a source of justice. Hence they tended to see the rule of law as a system of authority before which all men were equal and which disregarded more traditional and informal bonds that existed in early-modern society such as those between magnate and retainer, those between neighbors, and those of kinship. Since jurists held that political society was founded to protect the weak from the strong, it followed (and this idea was also found in Cicero) that in theory at least lawyers should be no friends of magnate retinues and that they should emphasize equality before the law.26 According to John Hales, one of the chief virtues of justice was that it had “noe Respecte to nature, kynrede, affynitie, frendshippe, Envie, malice” or hatred. Similarly, William Lambarde reminded Kentish grand jurymen that they should not let their ties in the local community prevent them from doing their lawful duty in presenting malefactors at quarter sessions. Most lawyers appear at the least to have paid lip service to Sir Edward Coke’s declaration at the Norwich assizes in 1606 that if “Justice [were] withheld only the poorer sort are those that smart for it.”27 According to one anonymous seventeenth-century writer, “If we would perfectly execute justice wee must make no difference betweene men for their frends[hi]p, parentage, riches, pov[er]tye, or dignitye. Cicero sayth that wee must leave our pleasures and particular profits to embrace the publick good.”28

Thus, the ideal of the rule of law and its corollaries became commonplaces for lawyers, and the notion that law was necessary for the maintenance of society in general was doubtless accepted by many laymen as well. The wider political implications of these general truths were, however, subject to a variety of interpretations. On the one hand, the rule of law could become a weapon in the art of statecraft and a principal justification for demanding absolute obedience to the prince. In the 1530s, for instance, Richard Morrison, a propaganda writer for Thomas Cromwell, who has been identified by Felix Raab as an early English Machiavellian, drew up a set of proposals for reforming the laws of England. One part of the scheme suggested that summer holidays, which had traditionally been used by the common people to celebrate Robin Hood and “disobedience also to [the king’s] officers,” should be made instead into occasions which attacked the bishop of Rome and showed the people “the obedience that yo[u]r subiectes by Goddes and mans Lawes owe unto yo[u]r ma[jes]tie.”29

Morrison’s project was apparently rejected, but a manuscript called “A book of things inquirable at inferior courts,” which dates from the later 1530s, possibly 1538, may well have been concocted for the use of lawyers acting as stewards in town courts, sheriff ’s tourns, and manorial courts. It explains that in the past only matters within the jurisdiction of such local courts had been given in the charge addressed to the jurors, but now the king was intent that the unlearned and ignorant people should “better knowen and due their dewtie first to God, then to his highness as Godes vicar.” In addition to its use in local courts, the charge was also supposed to be read at least four times a year in the parish church. Among a long list of matters dealing with both the administration of justice and the defense of the Henrician reformation, there was a clear statement that the king had been appointed by God to rule over the commonwealth and that any disobedience to the monarch was a violation of holy ordinances.30

In the Elizabethan period, likewise, the necessity of the rule of law was often linked to calls for obedience to established authority. Indeed, some legal publicists, and councillors in the queen’s government, began to argue that the maintenance of the rule of law was in itself a sufficient foundation for the obedience a subject owed to his prince. The key precept in this line of thinking was that some government was better than no government. The rule of law protected property and the person. It was a way of keeping the animal passions of men, which colored life in the state of nature, at bay. Consequently, it offered an incentive for accepting the existing government on the grounds of self-interest, even if one had doubts about the issue as a matter of conscience. This was essentially the basis of the accommodation which Elizabethan government offered to English Catholics. For example, in a piece of propaganda addressed to those involved in the 1569 rebellion, Thomas Norton, the translator of Calvin, parliament man, and legal man of business to Lord Treasurer Burghley, wrote, “The common weale is the ship we sayle in, no one can be safe if the whole do perish. To God, and then to the realme, the crown, to the law and government . . . we all do owe our selves and all that we have.”31

Some lawyers extended the connection between the value of the rule of law and the necessity for obedience into a conventional theory of divine right monarchy. For example, in 1587 Richard Crompton, one of the more important Elizabethan legal thinkers, published A short declaration of the ende of Traytors, a pamphlet which contained the substance of a speech he had given before a meeting of the Staffordshire quarter sessions earlier that year. The setting is significant because such orations, or “charges,” appear to have been a normal part of the procedures which surrounded the opening ceremonies of most local courts during the period. They were probably the main avenue through which the ideology of the lawyers was professed openly to a public which reached at least as far down the social scale as the lesser gentlemen and yeomen farmers who served on petty and grand juries.

According to Crompton’s preface to the printed version, his aims on this particular occasion had been to show the people the good they get by the law, to explain their duty to obey the prince, and to illustrate the fate of traitors. He wanted to warn them about the dangers of treason on the grounds of conscience and to set out a legal justification for the execution of Mary, Queen of Scots. Like many other tracts of the same vintage and purpose, The Declaration was filled with cautions about the dangers of the times (in 1587 the Spanish Armada was about to set sail) and stressed the advantages which England was enjoying under the beneficent leadership of Queen Elizabeth, especially in comparison with the bloody murders and discords which were taking place on the Continent.32

Although hardly systematic, Crompton’s call for obedience to Queen Elizabeth was a classic piece of absolutist jurisprudence. His conception of the foundations of political society was a conflation of pagan ideas about a state of nature ruled by the law of nature and an interpretation of the scriptures which placed the foundation of human society after the “universall flodde,” when God had appointed kings and magistrates to rule over the people. In addition, he incorporated two fairly straightforward quotations from Cicero’s De Legibus. Law is the highest reason granted in nature; it commands what things are to be done and forbids those which are not. According to Crompton, it followed from this that there is a need for preeminence and superiority in government, for without government, no house, no city can stand. Kings were ordained by God to govern, and their subjects were commanded to obey. Even in the face of injustice or tyranny subjects had no right to rebel against the prince. Even the Turks (whose government Englishmen always associated with the worst form of oppressive regime) had no right to overthrow the ruler God had put on the throne to govern them. The laws of God, the laws of nature, and the laws of the realm all demanded absolute obedience.33

Richard Crompton certainly expressed views which would have pleased the queen’s government. It is less certain how far they can be described as typical. Only a tiny minority of the thousands of charges which must have been delivered have survived.34 Much of what Crompton said in Staffordshire was conventional and commonplace, but other writers may have altered the emphasis. For example, William Lambarde’s account of the origins of political life sounds very much like that found in the most popular Ciceronian work in England, De Officiis. In the beginning the only political society was the family governed by the patriarch, but as population grew, the weak and helpless began to be oppressed by the strong. Consequently, the people went to the man who was most distinguished for his virtue and established him as their king. He protected the weak, and set up an equitable system of government which united the highest and lowest in equal rights. Lambarde developed this view of the origins of political society further by adding that once the rulers who had been established by the people became corrupted, “then were Lawes and rules of Justice devised, within the which as within certaine Limits, the power of governors should from henceforth be bounded to establish laws by which both governors and governed could be ruled.”35

An even more detailed insight into an Elizabethan lawyer’s attitudes toward government is revealed in a series of “readings,” or lectures, on the royal prerogative which were given at the Middle Temple in 1579 by James Morice, a man who was on fairly close business terms with Lord Treasurer Burghley, and who was also associated with the Elizabethan presbyterian movement.36 Morice started his discourse by explaining that he had selected his subject because he wanted to come to a better understanding of the authority of princes and the duty incumbent on subjects to obey them.37 He also pointed out that there had long been debate about which was the best form of government—monarchy, aristocracy, or democracy. In general, history, particularly Roman history, taught that monarchy was the most effective. Democracy tended to anarchy; oligarchy, or the rule of the best, to faction. However, monarchy was inclined to slip into tyranny and insolent oppression. Therefore another form of government whereby the prince governed by law had been established.

Morice then considered the etymology of the word prerogative in such a way as to be able to make the point that among “The Romaynes the Consent of the people was requysite to the Establishment of their Lawes.” Furthermore, he argued that while it was sovereign kings who actually made laws, this was always done through consultation with the people. Such a system worked because “what cawse agayne haue the Comons to murmor or rebell agaynst the Lawes and Statues by w[hi]ch they are gov[er]ned syns they them selves are of Counsell and consent to the makinge of the same.” Finally, he came to the question of whether the king be above or below the law. The answer was formulated as follows.

The detailed survival of this reading is exceptional; so, too, perhaps, was James Morice’s attachment to the radical puritan cause. Yet, the fact that the queen’s principal adviser, Lord Treasurer Burghley, requested that Morice send him a copy of the text may suggest that the ideas it expressed were not outrageously unconventional.40 It seems safe to conclude that many Elizabethan lawyers would have been aware of Aristotle’s divisions of the kinds of government into aristocracy, monarchy, democracy, and the mixtures of these three, and many of them may have supported Morice’s defense of mixed monarchy. Thus an anonymous paper delivered to the Society of Antiquaries in the late 1590s or early 1600s stressed that the court of parliament had a double power. One involved consultation by way of deliberation for the good government of the commonwealth, so it is consilium, not curia. The other power came from parliament’s role in the administration of justice.41 For some these conclusions may have arisen from a consideration of the nature of the origins of the state along the lines laid out by Lambarde. For others it may have been a natural corollary of the kind of legal realism which was imbibed from writers such as Bodin. For example, in the late 1590s, the speaker of the House of Commons, Sir Christopher Yelverton, informed the House that there were many forms of government, but that monarchy was the best, and that the English polity was particularly good because there were practical advantages in allowing the people themselves to be the framers of their own laws.42

These views amount to contemporary refutations of Sir Geoffrey Elton’s recent attempts to depict the Elizabethan parliament as a court which had no significant political or advisory function.43 Yet it is at the same time important to recognize that much of Elizabethan legal thought also bears a close resemblance to what Continental historians describe as political neo-Stoicism.44 The rule of law was the greatest benefit of government, one which could be maintained only through absolute obedience to the monarch. However, political obligation was not based entirely on divine injunctions that the subject accept the will of the prince. It also involved a calculation of self-interest. The king was supposed to rule for the good of his people and govern according to law. Hence there was a clear perception of the difference between good government and bad government, between just rule and tyranny. Few lawyers went so far as to share the suspicion of the royal use of the law which is expressed in the poetry of the aristocrat Fulke Greville:

• For though perhaps at first sight laws appear
• Like prisons unto tyrants’ soveraign might,
• Yet are they secrets, which Pow’r should hold dear
• Since envyless they make her infinite;
• And set so fair a gloss upon her will,
• As under this veil Pow’r cannot do ill.45

But many of them did have a clear perception of the potential danger of tyranny. In a speech to quarter sessions dating from the late 1560s or early 1570s, Sir Christopher Yelverton reminded his listeners “how easilie may the haughtie raigne of the unskillful prince slide into Tirranie.”46 More cautiously, but nonetheless clearly, the anonymous author of The Laudable Customs of London (1584) noted:

However, although Elizabethan legal writers were well aware of the potential conflicts between the power of princes and the liberty of the subjects, and although they were perfectly capable of discussing such matters in general theoretical terms, they preferred to avoid drawing precise lines between the two, and, given the wartime dangers to political stability which they perceived, it is hardly surprising that the monarch was frequently given the benefit of the doubt. This important characteristic of the interrelationship between legal theory and political reality is perhaps best summed up in the anonymous Collection of the Lawes and Statutes of This Realme concerning Liueries of companies and Reteynours (1571). This author was quite open about the abuses of kings such as Henry I, Richard II, and Richard III, but he also took pains to point out that “the Whole body of our law books” show that at no period in history had questions concerning princes been as often referred to the determination of the law as during the reign of Queen Elizabeth.48

III

As should already have become evident from the previous discussion, neither ancient constitutionalism of the sort associated with Coke nor Magna Carta was a particularly prominent feature in sixteenth-century legal thought. Nor by now should the reasons for this be surprising. It is true that the common law was perceived as a set of rules and procedures which had accumulated over time in the year books, law reports, and registers of writs, but within the jurisprudential framework laid down by, for example, Doctor and Student, customary practices were valid only so long as they adhered to the laws of God and reason, and the essence of English law lay, not so much in particular precedents or customs, as in maxims which enshrined its reason. There was no systematically thought-out view that customs were valid simply because long usage had proved their utility and justness. In fact, one of the major characteristics of legal development under Elizabeth and the early Stuarts was the regular testing of the reasonableness of such customs against the common law or equity. Most common lawyers, including Sir Edward Coke, were quite active during this period in subordinating local custom to their notion of the law as administered through the royal jurisdictions at Westminster.49 Indeed, in the wake of the attack on tradition which accompanied the Reformation, customs themselves were seen to have no intrinsic value. For instance, in 1569, Thomas Norton warned the participants in the Northern Rebellion not to be misled into thinking that they were defending ancient liberties and customs. “Are all customes, without respect of good or bad, to be restored; are not rather the bad to be reformed: and so is it true libertie to be delivered from them, and not remayne thrall and bounde unto them.”50

Within this world view, legal history was certainly of interest, but it was not of vital importance in interpreting the law. Hence the Elizabethan recorder of London, William Fleetwood, was fascinated by antiquities, but had read enough of writers like Bodin to be skeptical of his sources.51 The first printed edition of Bracton (1569) warned the reader to take into consideration changes in the common and statute law since he wrote.52 Many legal authors such as Richard Crompton and John Dodderidge found no difficulty in accepting that the Norman Conquest had changed English institutions.53 There was no reason why these past events should necessarily determine the validity or invalidity of present laws and governmental arrangements.

Against this background, Magna Carta found its place in legal thought not so much as a charter of customary liberties, but as a statute, albeit the first of the collection known as the statuta antiqua.54 Consequently, most detailed discussions of it are found in connection with the readings, or lectures, which senior members of the Inns of Court gave for students, and which were always based on a statute. Even in this context, Magna Carta does not figure so frequently as to suggest that it was considered of extraordinary importance. But it was often employed as a vehicle for describing or discussing major areas of the law of the land, both civil and criminal.55

On the whole, and in the pre-Reformation period in particular, the readings contained little of politics or of political controversy, and authors took it for granted that the Charter was a statute which corrected defects in the common law at the time of its enactment. For example, a mid-fifteenth-century reading, which, unusually, survives in English, begins:

Similarly, a sixteenth-century reading, which must date from just after the break with Rome in the 1530s, starts with the assertion that before the Charter only the common law was used.57 Both lectures point out specific chapters which had altered the existing common law.

Comprehensive treatments of the entire Charter appear to have been comparatively rare. In most cases the reader chose to expound on no more than a single chapter. For instance, a late fifteenth-century lecture on chapter 17 (“Nullus, vicecomes, constabularius . . .”) involved a consideration of the methods of appointment of local officials, their functions, and a discussion of various headings of the criminal law such as murder, manslaughter, burglary, and so on.58 On the other hand, lectures on chapter 1 (“. . . quod Anglicana ecclesia libera sit . . .”) were frequently used to lay out the law of sanctuary, and chapters 1–8 were often read in order to explain aspects of the land law such as wardship or the rights of widows.59 Even chapter 29 (“Nullus liber homo capiatur”) was put to work on relatively technical matters. In an early sixteenth-century reading it was used to argue against the practice of using the writ of capias, or arrest, as a leading process in civil cases.60 In 1580 Robert Snagge selected it as a text for a lecture concerned primarily with uses, a form of trust frequently employed by landowners.61

Not surprisingly, some parts of the Charter did become more controversial during the course of the English Reformation. Both Robert Aske, the lawyer leader of the Pilgrimage of Grace of 1536, and Sir Thomas More, common lawyer and sometime lord chancellor of England, based part of their resistance to the religious policies of Henry VIII on an interpretation of chapter 1 that took literally the king’s promise to protect the liberties of the English church.62 On the other hand, in 1534, chapter 29 of Magna Carta, along with subsequent statutes on due process of law, were cited in support of a parliamentary attack on an early fifteenth-century statute which gave the English church powers to repress heretical preaching.63 Similarly, an anonymous reading on chapter 1,64 which appears to have been given at one of the Inns of Court either in the 1530s or early in the reign of Elizabeth, posits royal, rather than papal, supremacy over the English church and cleverly limits the discussion of the “liberties” of the church to a consideration of particular privileges of ecclesiastical personnel, the nature of sanctuary, and the jurisdiction of the church courts.65

In addition, this reading is prefaced by some general remarks on the nature of law and the origins of the Charter which illustrate the kinds of polemical use to which Charter history, like the law itself, was put in the Tudor era. The reader reminded his audience that the laws of the land had continued in long use before the making of the Charter, and that some of these laws had been made by Lucius, some by Edward the Confessor, and some by William the Conqueror. However, these remarks were distinctly secondary to the force of the preface in general, which harps primarily on the familiar theme of the necessity of the rule of law for the maintenance of peace and prosperity within the commonwealth. Echoing Fortescue, the author described law as the means by which the “body politique” was bound together. He went on to explain that a body without law was a dead body which could not “move or stirr.” This point, he claimed, could be demonstrated from the histories of many foreign countries, but it was not necessary to consider those, because the history “of our own country,” and of the making of the Charter, proved it well enough.

The fact that chapter 1 had become controversial must have made it particularly difficult for some time after the break from Rome to see the Charter as a whole as a statement of immemorial law which was still in force. For example, another reading on chapter 1, which dates from the reign of the protestant heir to Henry VIII, King Edward VI, states that grants of liberty to God and the English church were void because God and the church were not the sort of legal entities capable of receiving such grants.67

Nevertheless, Magna Carta was the first of the ancient statutes, and it clearly contained within it many of the major principles of the practice of the common law. Its position between circa 1530 and circa 1570 is perhaps best summed up by George Ferrers in the preface to his published English translation. His purpose in undertaking the work, like that of so much Tudor legal publishing, was to make the laws of the realm more widely known to the public. Moreover, Ferrers thought that this was particularly necessary in the case of Magna Carta because “many of the termes aswell frenche as latyn be so fer out of use by reason of theyr antiquyte, that scarcely those that be best studyed in the lawes can understand them.” But for Ferrers, the translation also had more than merely antiquarian interest. In these old laws, if “they be well sought, is conteyned a great part of the pryncipples and olde groundys of the lawes. For by searching the great extremites of the common lawes before the makynge of statutes, and the remedyes provyded by them, a good student shall soone attayne a perfect judgement.”68

By comparison with this evidence of the interest in the Charter which existed in the first half of the sixteenth century, that which survives for most of the Elizabethan period is relatively meager. Magna Carta seems to have figured only infrequently in lectures at the Inns of Court, or, if Faith Thompson is an accurate guide, in the everyday practices of judicial decision-making. As we have seen already, the thrust of Elizabethan juristic thought depended little on ancient constitutionalism, and there is surprisingly little mention of Magna Carta in the systematic works which were addressed by the legal profession to the public at large.

However, there are from the 1580s and 1590s several exceptions to this generalization which must be pursued in some detail. First, in the 1590s, two sympathizers of the Elizabethan puritan movement, James Morice and Robert Beale, referred to Magna Carta in the course of their attacks on the legality of the infamous oath ex officio which was administered by the ecclesiastical court of High Commission. The point at issue in what became a raging controversy was whether people accused of religious nonconformity could be forced to swear that they would truthfully answer questions even though no specific charges had been laid against them.69 In his A brief treatise of Oathes, for example, Morice cites chapter 29 in his efforts to prove that the use of such oaths was contrary to the common law. Nevertheless, what is more interesting is that Morice’s position in fact depends very little either on the Charter or on a more general ancient constitutionalist argument. His treatise proceeds primarily by way of an account of the use of oaths in both the canon and civil law as well as at common law. The main thrust of the case is that the oath ex officio was contrary to the laws of God and reason, and he quotes Christopher St. German for the view that laws against the laws of God are void (“neither righteous or obligatorie”). Magna Carta is referred to briefly in a section of the work which examines the common law position on the oath, but chapter 29 is not vital to the case as a whole, and it is not put forward by Morice as if it were. His mode of argument is in fact quite consistent with the kind of thought which we have seen already in his reading on the royal prerogative in 1579, and which was typical of scholastic and humanistic legal discourse rather than ancient constitutionalism.70 Robert Beale, on the other hand, did appeal more often to the “law of laws” in his contribution to the argument. But, his use of the Charter and other early statutes appears more like the lawyerly citation of legislative authority than a fully developed view that such “olde Lawes” established an inviolable “ancient constitution.”71 In this respect, it is useful to compare Beale’s approach with that of another puritan lawyer, Nicholas Fuller, whose attack on the oath ex officio was published in 1607, sometime after the appearance of the first of Sir Edward Coke’s influential Reports. Fuller clearly expresses the classic ancient constitutionalist view that the authority of laws like Magna Carta rested precisely on the fact that they were old. Thus the king and subjects of England were guided by laws, “which . . . by long continuance of time and good indeavor of many wise men, are so fitted to this people, and this people to them, as it doth make a sweete harmony in government.”72

No less interesting are references to Magna Carta by two other lawyers whose writings have already been examined in some detail, Richard Crompton and William Lambarde. Crompton’s Short declaration of the ende of Traytors, it will be remembered, was in the main a glorification of the ideal of the rule of law and a call for absolute obedience to the monarchy. However, Crompton concluded this tract, which includes quotations from Cicero, Aristotle, and Marsilius of Padua, with a note that the English were particularly blessed because they had the law of 9 Henry III (he does not mention Magna Carta by name), which laid it down that no man shall be taken or imprisoned, nor disseised of his freehold, nor put out of his liberties, or free customs, but by the judgment of his peers. In addition, he remarked that although the queen was above “her lawes” in some respects, she was pleased to be ordered by the same “as other her noble progenitors have doone.”73

Magna Carta and the rights which it epitomized were therefore important for Crompton. They provided the basis for the comparisons he made in this and other works between the “blessed” state of the English and the tyrannies suffered by those who lived in other European countries, a theme which both echoes Fortescue in De Laudibus Legum Angliae and was to be continued in the political speculations of some seventeenth-century parliament men. Even so, although Crompton saw the Charter as a source of exemplary laws, he does not appear to be discussing political obligation or the nature of the English state in terms of an ancient constitution. Indeed, the liberties of Englishmen in his scheme of things are a kind of quid pro quo of obedience.

William Lambarde’s public remarks on the Charter occur in a charge he delivered at the Michaelmas meeting of the Kentish sessions of the peace in 1586. It is important to stress that Lambarde’s utterance on this occasion was even less than Crompton’s a statement of any kind of systematic political theory. His primary aim was to convince the grand jurors to whom he was speaking that they should actively participate in what Lambarde saw as the essential purposes of quarter sessions, the encouragement of public virtue and the punishment of vice. Nevertheless, his analysis of the origins of Magna Carta makes interesting reading.

In many respects, this speech certainly sails very close to ancient constitutionalism, and such an interpretation might seem all the more justified when it is recalled that Lambarde was a leading Elizabethan antiquarian who published a Latin translation of Anglo-Saxon laws.75 Nevertheless, he should not be stereotyped too rashly. His heavily annotated copy of Tractatus De Iuris Arte, Duorum Clarissimorum Iurisconsul . . . Ioannis Corassii et Ioachimi Hopperi, which was purchased just one year after it was published, shows that he was in fact a follower of Continental legal science of the nonhistorical variety.76 As we have seen, he had a general theory about the origins of political society which appears to have presupposed a degree of popular participation in the framing of government.77 Furthermore, Lambarde was well aware that important changes had taken place in the nature of English legal institutions since the Conquest, not to mention before it. For example, he believed that William I had ruled as a conqueror, and that parliament was for a short time discontinued as a consequence of the Norman invasion. In his textbook for justices of the peace, Eirenarcha, he equates the creation of royally appointed justices of the peace by Edward III with the time when “the election of the simple Conservators or Wardens of the Peace, was first taken from the people, and translated to the assignment of the king.”78 Thus at the point at which his historical and his legal thought met, Lambarde was seeking in the past for an ideal constitution which embodied a large degree of participation at both the national and the local level and as near a perfect expression of justice as possible. He was not necessarily arguing for particular laws or institutions simply because they had a long history.

Yet, all qualifications notwithstanding, these references to the Charter remain intriguing. In one sense, they undoubtedly reflect a legal and political chauvinism which can be traced back at least as far as Fortescue. In another, they illustrate the way in which the classically inspired ideal of the rule of law paved the way for a notion that such rule should be based on traditional practices and procedures, the native law of the realm. This idea was likely to have been particularly appealing to writers like Lambarde, Morice, and Beale who would have been well aware of simultaneous scholarly efforts to prove that, in spite of papal usurpation, royal supremacy over the English church dated back to the days of primitive Christianity. In any case it was a fairly common precept of juristic humanism that laws should be well suited to the people they governed.79 Magna Carta and other ancient statutes had long been used to illustrate due process of law within the English system. For this reason, if no other, it was bound to be of fundamental interest to English lawyers.

At the same time, the references by Crompton and Lambarde to Magna Carta and the ancient customs of the English in speeches which they were delivering to the ordinary lesser gentry and yeoman farmers who made up the grand juries at quarter sessions raise the question of whether they might not also have been adopting such reference points because they felt that they would have a particularly convincing impact on their audiences. This introduces the problem of how the charter was perceived at the popular level, but it is not, of course, an easy matter to resolve. If reissues of the Charter were read aloud in the county courts of the thirteenth century,80 it enjoyed no comparable exposure in the sixteenth. On the other hand, the idea that there was a prescriptive process by which customs became law as a result of usage beyond the memory of men may have been relatively well known in the world of truly unwritten law which surrounded the activities of manorial courts. In this sense, the notion that there was an ancient constitution which had proven itself over time might well have been grasped easily by ordinary people. The problem is that there is not much evidence that this was in fact the case. Faith Thompson found that, throughout the sixteenth and the early seventeenth centuries, Magna Carta was much more frequently referred to by lawyers than by laymen,81 and, as we have seen, although lawyers thought a good deal about law and government, ancient constitutionalism was not in the sixteenth century a major component of the ideology which they exchanged with the public. Instead, they were advocating the rule of law and justice, and were usually willing to allow that any statute, including Magna Carta, could be changed by parliament to bring English law into line with the laws of reason and the laws of God. Nor did they need to believe in immemorial laws in order to define a tyrant.

IV

If ancient constitutionalism and Magna Carta were relatively insignificant in the sixteenth century, then the task remains of trying to explain, briefly, why they became more important in the seventeenth. At this point it is necessary to offer an interpretation of how their leading proponent, Sir Edward Coke, came to employ the concept of “immemorial usage” as a way of discovering the “reason” which Cicero had claimed was inherent in all laws.

Much depended on a set of circumstances which made older modes of common law thought vulnerable at just about the time James I came south from Scotland to sit on the throne of England in 1603. On the one hand, lawyers were facing serious public criticisms because they seemed unable to solve the administrative and professional problems associated with the sixteenth-century increase in litigation and because their system of judge-made law was extremely susceptible to the charge that it was uncertain.82 “Right reason” as a basis of decision-making raised suspicions that the law was nothing more than what a particular judge willed it to be at any given moment.83 The writings of many of the leading figures of the first fifteen years of the seventeenth century—Coke, Davies, Bacon, Ellesmere, Selden, for example—display a tremendous defensiveness about the common law and its practitioners.84

No less important, lawyers also had to come to terms with the accession of James I. The new king brought with him a sophisticated and clearly articulated argument in favor of absolute monarchy which upheld, but which was essentially unbounded, by law.85 Even more disturbingly, one of his major political ambitions was the creation of a union between the kingdoms of England and Scotland.86 Nearly all Englishmen seem to have hated this prospect on purely racial grounds, but many also realized that a “perfect” union of the two kingdoms would require a union of laws. Hence a defense of the uniqueness of the common law became a politic means of opposing the union. At the same time, the possibility of such an amalgamation of laws led some lawyers to contemplate the relationship between systems of laws and the societies in which they worked. For example, Sir John Dodderidge’s “A brief consideracon of the unyon of two kingedomes in the handes of one kinge,” noted:

The gradual emergence of Coke’s view of the ancient constitution in his published Reports was influenced by these same factors, although there was yet another, a controversy with the English Jesuit Robert Parsons, which also played a vital part.

The prefaces of the first two of Coke’s Reports, published in 1600 and 1602 respectively, offer much in the way of praise for English law, and were primarily concerned with the need to maintain its certainty by establishing better law reporting.88 But in the Fourth Reports, which was published in 1604, Coke began to address the issues which arose in the wake of James I’s accession one year earlier. His basic message was that changes in the law were dangerous. Furthermore, he explained clearly his view on the relationship between the law and monarchy. “The King is under no man, but only God and the law; for the law makes the King: Therefore let the King attribute that to the law, which from the law he hath received, to wit, power and dominion; for where will and not law, doth sway, there is no king.”89

Similarly, in the Fifth Reports (1605) Coke expressed a sentiment which was particularly appropriate in the context of the Anglo-Scottish Union: the common law is our birthright, and the best inheritance that the subjects have.90 However, and somewhat incidentally, in his discussion of Cowdrey’s Case, he also claimed that the protestant church in England had existed since the beginning of Christianity, and this assertion brought forth a published attack on the Fifth Reports by Parsons, who was one of the most radical of the English Catholics. Parsons’s main point was that he did not see how Coke could justify his claim since there was little evidence about the law before the Conquest. He argued instead that the common law had been brought in by William of Normandy, and that if it were the birthright of any, it benefited very few.91

In the sixth of the Reports (1607), Coke made a point of saying that he was not going to bother to answer the criticisms made by Parsons. But in fact his most strenuous efforts to prove the antiquity of the common laws and to nullify the consequences of the Norman Conquest began at this point.92 The Seventh Reports (1608) provided a brief inter-lude from the historical theme, but in the eighth (1611), he returned to criticisms that had been raised against his claim for the antiquity of English law, and joined issue with unnamed historiographers who wanted to see more of his evidence.93 On the other hand, by the time of the publication of the Ninth Reports in 1613, Sir Edward had found that the “light touch” he had given his recent publications by including history in them had been successful with readers, so he churned up some more exhibits “which I am persuaded will add to their satisfaction and solace therein, who do reverence and love (as all men ought) the national laws of their native country.”94

Ancient constitutionalism as formulated by Sir Edward Coke was, therefore, a response to a particular set of political, religious, and legal conditions. It was not the product of a deep-rooted mentality, even though it is easy to see how the idea of the singular importance of the rule of law, even political neo-Stoicism itself, could lead to a view that government in England was defined by a set of ancient legal practices which had proven themselves over time. It was a handy way to argue for the rule of law without having to make commitments about the nature of political obligation. Nevertheless, ancient constitutionalism had so few clear antecedents in sixteenth-century English thought that it is tempting to suggest that its systematic formulation may have owed something to the importation of foreign ideas. In its hatred of popery and in its insistence on the existence of ancient liberties which could be proven by the study of the past, English ancient constitutionalism bears a number of resemblances to the work of the French protestant François Hotman, in particular to his Francogallia. Hotman’s political radicalism, his disparagement of Coke’s hero, Littleton, and his paradoxical hatred of lawyers undoubtedly made his name one with which Coke would not like to have been associated.95 But Hotman’s works were certainly known in late sixteenth-century England. As we have seen already, John Dodderidge, a member of the legal circle connected with Thomas Sackville, Lord Buckhurst, which also included Coke, ranked Hotman among the most important of authors to be consulted in connection with a treatise on the royal prerogative. Furthermore, Hotman’s son and literary executor, Jean, resided in England for a lengthy period during the 1580s. He became a friend of the courtier Sir Philip Sidney and secretary to the queen’s favorite, the earl of Leicester, during the latter’s military campaign in the Netherlands in 1586.96

To reapply a phrase from F. W. Maitland, a Roman reception in sixteenth-century England did lead to something of a Gothic revival in the seventeenth. What must be stressed in addition, however, is that many aspects of sixteenth-century legal thought survived into the seventeenth century as well. Any analysis of the relationship between law and politics in the early Stuart period which depends exclusively on a common law mind whose main component is ancient constitutionalism is doomed to failure.

To argue this is not to deny the importance of the common law mind, but to enrich it. As Professor Judson found some years ago, the ideal of the rule of law was as much a commonplace in the seventeenth century as it was in the sixteenth.97 But, as in the sixteenth, the political significance of this commonplace could be elaborated by both lawyers and laymen alike in a number of different ways. For those with a puritan cast of mind, the idea that human law should conform to the law of God led to calls that the laws of England should be remodeled in accordance with Mosaic law. For many the logic of the fight against social and political chaos led mainly to an acceptance of the necessity for obedience to the established monarch. For others, it was associated with a state which was ruled by laws made jointly by king and parliament.98 But this latter view may in fact have been the one which was most often supplanted by the ancient constitutionalist argument. The fact that lawyers found it necessary to employ history in order to secure the liberties of Englishmen in the seventeenth century is a testimony both to the success of the early Stuarts in promoting absolute monarchy and to the fact that by the early seventeenth century contractual arguments had been seriously tainted by popery.99

At the same time, the ideal of the rule of law also had a logic of its own which arguably made a significant contribution to the political and social culture of the period. This is not to deny that the idea in some form already had a long history in 1500,100 but to observe that during the sixteenth century it was quite regularly promoted by a large legal profession, and at times by the state itself, to levels of the population which reached down to the tenants of manorial courts. Furthermore, there were significant differences between the lawyers’ idea of a society in which order was maintained through equality before the law and other strands of early-modern political thought such as those which emphasized hierarchy, or those which prescribed deferential obedience based on a patriarchal concept of authority. In this respect legal ideology has been unduly neglected in recent historiography as a factor in shaping the mentalities of governors and governed between the Reformation and the outbreak of civil war in 1642.

Legal thought did not stress that England was a society of orders; ideally law was no respecter of persons. Nor did it very often see political society as a body politic in which all the parts were assigned their proper place and function just as head and feet have their proper roles in the human body. Lawyers certainly advocated obedience to established authority, but they usually argued the case in terms of the self-interest of the individual and rarely in the sixteenth century utilized patriarchal arguments in which the duty to obey the prince or local justice of the peace was derived from the Fifth Commandment injunction that children should obey their parents.101 It is true that the necessity for order was frequently stressed, but this order was an alternative to a Hobbesian state of nature, not the maintenance of any particular social order. Indeed, conflict between the civil society of equals before the law which was advocated in legal thinking and other notions about an ordered society can be seen clearly in connection with reactions to the enormous increase in the number of lawsuits during the second half of the sixteenth century. Among many lay, patrician, social critics, litigation was regarded as a dangerous phenomenon which threatened to allow tenants to vex their landlords and promised generally to upset the social order. Among legal thinkers, on the other hand, although there were critics of vexatious litigation, it was argued simply that lawsuits enabled men to redress the wrongs they thought had been committed against them.102

Magna Carta and ancient constitutionalism might have been significant in promoting such ideas, but the evidence suggests that for much of the sixteenth century they were not. Indeed, the importance of both in the seventeenth century depended largely on the existence of classically inspired attitudes toward law. Insofar as the concept of a civil society ruled by law became an important part of Anglo-American political discourse, perhaps even of the Anglo-American mentality, part of the story lies in the Renaissance jurisprudence of the sixteenth century.

[1. ] For one of many possible examples see J. S. Morrill, The Revolt of the Provinces: Conservatives and Radicals in the English Civil War, 1630–1650 (London, 1976).

[2. ] J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, England, 1957). The new formulation and a very accurate account of the debate which the original interpretation engendered can be found in 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).

[3. ] C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (Cambridge, England, 1986), chap. 4, pp. 75–79, 133–38.

[4. ] W. R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (London, 1972).

[5. ] Sir John Fortescue, De Laudibus Legum Angliae, ed. S. B. Chrimes (Cambridge, England, 1942), lxxix, 25, 37–41.

[6. ] C. St. German, Doctor and Student, ed. T. F. T. Plucknett and J. L. Barton (London, 1974), 1–77. Zofia Rueger, “Gerson’s Concept of Equity and Christopher St. German,” History of Political Thought 3:1 (1982): 1–30. See also J. Guy, Christopher St. German on Chancery and Statute (London, 1985).

[7. ] Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, England, 1977), 40. A Catalogue of the Library of Sir Edward Coke, ed. W. O. Hassall (New Haven, Conn., 1950). C. B. Schmitt, John Case and Aristotelianism in Renaissance England (Kingston and Montreal, 1983), 6–9, 43, 87, 104, 136–37.

[8. ] Edmund Plowden, Commentaries or Reports of Edmund Plowden, of the Middle-Temple, Esq. An Apprentice of the Common Law (London, 1761 ed.), 9, 13, 27.

[9. ] Sir Christopher Hatton [?], A Treatise Concerning Statutes or Acts of Parliament and the Exposition Thereof (London, 1677).

[10. ] Fortescue, De Laudibus, 9.

[11. ] Sir Thomas Elyot, The Boke Named the Gouernour (1531), ed. H. H. S. Croft, 2 vols. (London, 1880), 1:154–55, 157.

[12. ] W. R. Prest, The Rise of the Barristers: A Social History of the English Bar, 1590–1640 (Oxford, 1986), 315–18. Sir Edward Coke, The First Part of the Institutes of the Lawes of England (London, 1628 ed.), preface.

[13. ] Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, England, 1979), 33–34.

[14. ] Thomas Starkey, A Dialogue between Cardinal Pole and Thomas Lupset, Lecturer in Rhetoric at Oxford, ed. J. M. Cowper (London, 1878), 50–53.

[15. ] Elyot, The Gouernour.

[16. ] John Rastell, An Exposition of Certaine difficult and obscure wordes . . . (London, 1572), sig. Aii.

[17. ] B[ritish] L[ibrary], Harleian MS 4990, fols. 8–8v.

[18. ] BL Add[itional] MS 48, 109, fols. 12v–13v.

[19. ] The Elizabethan Lord Keeper, Sir Nicholas Bacon, decorated his country house with quotations from Cicero and Seneca. Elizabeth McCutcheon, Sir Nicholas Bacon’s Great House Sententiae (Claremont, Calif., 1977).

[20. ] Lambarde’s copy of Tractatus De Iuris Arte, Duorum Clarissimorum Iurisconsul . . . Ioannis Corassii et Ioachimi Hopperi . . . (Cologne, 1582) was purchased in 1583. It is copiously annotated. British Library Department of Printed Books Shelf Mark 516.a.55.

[21. ] For a discussion of Finch see T. K. Shaller, “English Law and the Renaissance: The Common Law and Humanism in the Sixteenth Century” (Ph.D. dissertation, Harvard University, 1979), 310–15.

[22. ] For Coke see BL Harleian MS 443, fol. 1; for Fleetwood, BL Stowe MS 423, fol. 107, and BL Harleian MS 6234, fol. 10v. Norton and Sackville collaborated on The Tragedie of Gorboduc: whereof three Actes were wrytten by Thomas Nortone, and the two laste by Thomas Sackvyle . . . (London, 1565). See also The Dictionary of National Biography.

[23. ] BL Harleian MS 5220, fols. 3–21. See also BL Stowe MS 423, fols. 106ff., Historical Discourse by William Fleetwood, Recorder of London.

[24. ] BL Harleian MS 4990, fol. 16.

[25. ] See, for example, Ferdinando Pulton, De Pace Regis et Regni viz. A Treatise declaring which be the great and generall Offences of the Realme and the chiefe impediments of the peace of the King and Kingdome . . . (London, 1609), preface.

[26. ] See, for example, [Anon.], A Collection of the Lawes and Statutes of this Realme concerning Liueries of companies and Reteynours (London, 1571).

[27. ] Conyers Read, ed., William Lambarde and Local Government: His ‘Ephemeris’ and Twenty-nine Charges to Juries and Commissions (Ithaca, N.Y., 1962), 70, 73, 89. Sir Edward Coke, The Lord Coke His Speeche and Charge (London, 1607), sig. Civ. Many other examples could be given.

[28. ] BL Add. MS 12,515, fol. 42.

[29. ] Felix Raab, The English Face of Machiavelli (London, 1964), 34. BL Cotton MS Faust. C. II. “A Discours touching the Reformation of the Lawes of England,” fols. 18–18v.

[30. ] BL Add. MS 48,047, fols. 59–61v. The dating is based on internal evidence.

[31. ] Thomas Norton, To the Quenes Maiesties poore deceyued Subiectes of the Northe Countrey drawen into rebellion by the Earles of Northumberland and Westmerland (London, 1569), sig. Gi.

[32. ] Richard Crompton, A short declaration of the ende of Traytors and false Conspirators against the state, and the duetie of Subjectes to theyr soueraigne Gouernour . . . (London, 1587).

[33. ] Ibid. Similar views are also expressed in Crompton’s The Mansion of Magnanimitie. Wherein is Shewed the most high and honorable acts of sundrie English Kings, Princes, Dukes, Earles, Lords, Knights, and Gentlemen . . . (London, 1599).

[34. ] I have been able to identify about twenty in manuscript for the period from roughly 1550 to 1640.

[35. ] William Lambarde, Archion or A Commentary upon the High Courts of Justice in England (first published London, 1635, but the preface is dated 1591, and there are earlier manuscript copies), 1–5.

[36. ] Edmund Lodge, Illustrations of British History, Biography, and Manners, In the Reigns of Henry VIII, Edward VI, Mary, Elizabeth and James I, 2d ed., 3 vols. (London, 1838), 2:443–46. J. E. Neale, Elizabeth I and Her Parliaments, 1584–1601 (London, 1957), 267–79.

[37. ] The reading survives in two versions, BL Add. MS 36,081 fols. 229ff., and BL Egerton MS 3376, a contemporary fair copy with a dedication to Lord Treasurer Burghley. The text on which Morice chose to read was a short “saving clause” in the Statute of Westminster I (1275) in which the king states that none of the previous provisions of the statute should result in prejudice to himself (Statutes of the Realm, ed. A. Luders, T. E. Tomlins, S. Raith, 11 vols. [London, 1810–1828], 1, 39, chap. 50). In the course of apologizing for selecting this ancient, short, and rather general clause, Morice explained that he did so largely because it enabled him to discuss more generally questions about the power of the monarch. BL Add. MS 36,081, fols. 230–30v.

[38. ] Ibid., fol. 231.

[39. ] Ibid., fols. 235, 243v–44v.

[40. ] BL Egerton MS 3376, fol. 1.

[41. ] BL Add. MS 48,102. “The Severall opinions of Sundarie Antiquaries touching the Antiquitie power, order, Estate, persons, manner and proceeding of the High Court of Parliament,” fol. 12.

[42. ] BL Add. MS 48,109. Speeches and letters of Sir Christopher Yelverton, JKB (1535–1612). In his speech at the beginning of the session in 1597 he said that political society had been founded when “pollicie, springinge of . . . necessitie did force men to submitte theire libertie to the frame of others sovereignty” (fols. 18–19). In his closing speech he argued that “the people” were most likely to be ruled by laws when they “be agents in framing them” (fol. 22). Bodin wrote, “When edicts are ratified by Estates or Parlements, it is for the purpose of securing obedience to them, and not because otherwise a sovereign prince could not validly make law” (Six Books of the Commonwealth by Jean Bodin, ed. M. J. Tooley [Oxford, 1967], 32).

[43. ] G. R. Elton, The Parliament of England, 1559–1581 (Cambridge, England, 1986).

[44. ] Gerhard Oestreich, Neostoicism and the Early Modern State (Cambridge, England, 1982). See also Two Bookes of Constancie Written in Latine by Iustus Lipsius, Englished by Sir John Stradling, ed. Rudolf Kirk and C. M. Hall (New Brunswick, N.J., 1939), 3–34 for an account of English neo-Stoicism.

[45. ]The Works in Verse and Prose . . . of Fulke Greville . . . Lord Brooke, ed. A. B. Grosart, 4 vols. (London, 1868), 1:94–95.

[46. ] BL Add. MS 48,109, fol. 37.

[47. ]A Breefe Discourse, declaring and approuing the necessarie and inviolable maintenance of the laudable Customes of London: Namely of that one, whereby a reasonable partition of the goods of husbands among their wiues and children is prouided . . . (London, 1584), 3–4.

[48. ]A Collection of the Lawes and Statutes of This Realme concerning Liueries of companies and Reteynours (London, 1571). “In aedibus Richardi Tottelli,” fols. 13v–14v.

[49. ] Brooks, Pettyfoggers and Vipers, 198–99.

[50. ] Norton, To the Quenes Maiesties poor deceyued Subiectes [sig. Eiiiv–iv].

[51. ] BL Stowe MS 423, fol. 133, for Fleetwood’s references to Bodin’s Methodus ad facilem historiarum cognitionem. There were editions in 1566, 1572, and 1583.

[52. ] D. E. C. Yale, “‘Of No Mean Authority’: Some Later Uses of Bracton,” in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. M. S. Arnold, T. A. Green, S. A. Scully, and S. D. White (Chapel Hill, N.C., 1981), 386. As Yale suggests, it seems quite likely that the preface to this edition was written by Thomas Norton, although there is no definitive proof. Also, though it is not a point that has been developed here, there is much evidence that Bracton’s popularity in the later sixteenth century was connected with the “Romanising movement” which characterized the legal thought of the period.

[53. ] Crompton, Mansion of Magnanimitie, sig. [B]. Dodderidge believed that William the Bastard and William Rufus had ruled by their swords, BL Add. MS 48,102A, fol. 6v. See also Christopher Brooks and Kevin Sharpe, “History, English Law and the Renaissance: A Comment,” Past and Present 72 (1976): 133–42.

[54. ] Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis, 1948), 38.

[55. ] I am very grateful to Professor J. H. Baker for helping me to locate manuscript readings on Magna Carta. In the discussion that follows, I have referred to chapters of the 1225 version of Magna Carta.

[56. ] G. O. Sayles, “A Fifteenth-Century Law Reading in English,” Law Quarterly Review 96 (1980): 571.

[57. ] C[ambridge] U[niversity] L[ibrary] MS Hh.II.6, fols. 1–27. The manuscript is in an early sixteenth-century hand, but it states that the grants to the church in chap. 1 were “voide.”

[58. ] BL Harleian MS 1210, fol. 144. Robert Brook used the Charter for a similar purpose in the mid-sixteenth century. CUL MS Gg.V.9, fols. 56–97.

[59. ] Sayles, “A Fifteenth-Century Law Reading,” 571–80. CUL MS Hh.II.6, fols. 2–27. BL Hargrave MS 87, fols. 195–218.

[60. ] CUL MS Hh.II.6, fol. 23v. This was also the drift of CUL MS Ee.V.22, fol. 18.

[61. ] BL Add. MS 16,169, fol. 245.

[62. ] Thompson, Magna Carta, 140–41.

[63. ] Public Record Office, London, SP 1/82, fols. 55–58. J. P. Cooper, “The Supplication against the Ordinaries Reconsidered,” English Historical Review 72 (1957): 636–38. S. Lehmberg, The Reformation Parliament, 1529–1536 (Cambridge, England, 1970), 186–87. I am grateful to Professor John Guy for bringing this incident to my attention. Magna Carta was used again to attack procedures in the ecclesiastical courts during the reign of Elizabeth. See p. 103.

[64. ] BL Harleian MS 4990, fols. 154vff. Thompson, Magna Carta, 192, suggests a date early in the reign of Elizabeth on the basis of style and language. But the reading consistently refers to the “king” and also appears to assume the existence of priors and abbots, evidence which may point to the earlier date.

[65. ] See fol. 163v for the intriguing statement that an argument at the commencement of “this vacation” had demonstrated that the king, not the Pope, had always been held supreme governor of the spirituality by the common law.

[66. ] BL Harleian MS 4990, fols. 154–56v.

[67. ] BL Lansdowne MS 1138, fol. 1.

[68. ] [George Ferrers], The Great Charter Called in latyn Magna Carta, with divers olde statutes whose titles appere in the next leafe (London, 1542), “To the reader.”

[69. ] Participants in the Elizabethan controversy referred to that of the Henrician period, which has been mentioned above, p. 100.

[70. ] James Morice, A brief treatise of Oathes, exacted by Ordinaries and Ecclesiastical Iudges . . . (London, circa 1592), 33–34, 47.

[71. ] Thompson, Magna Carta, 216–22.

[72. ]The Argument of Master Nicholas Fuller, in the Case of Thomas Lad and Richard Maunsell . . . ([London], 1607), 13–14.

[73. ] Crompton, Short declaration, sig. E4v–F.

[74. ] Read, ed., William Lambarde and Local Government, 79–80.

[75. ] W. Lambarde, Archaionomia: Sive de priscis Anglorum legibus libri. G. Lambardo interprete (London, 1568).

[76. ] See note 20 above.

[77. ] Lambarde, Archion, 20, 108–110.

[78. ] William Lambarde, Eirenarcha: or of the Office of The Justices of Peace in two Bookes (London, 1581), 20–21.

[79. ]The Six Bookes of A Common-Weale, Written by I. Bodin a famous Lawyer and a man of great Experience in matters of State. Out of the French and Latine Copies, done into English by Richard Knolles (London, 1606), 469–70.

[80. ] J. C. Holt, Magna Carta (Cambridge, England, 1965), 288.

[81. ] Thompson, Magna Carta, 279.

[82. ] Brooks, Pettyfoggers and Vipers, chap. 7.

[83. ] See, for example, D. E. C. Yale, ed., Epieikeia: A Dialogue on Equity in Three Parts (New Haven, Conn., 1953), 25, and BL Add. MS 41,613, fol. 81vff., “The Course of the Lawes of England and the abuses of the ministers thereof Laid open.”

[84. ] Knafla, Law and Politics, 274. F. Bacon, “Maxims of the Law,” in Works, ed. J. Spedding, 14 vols. (London, 1857–1874), 7:315–19. Sir John Davies, “Discourse of the Common Law” (1615) in The Complete Works of Sir John Davies . . . , ed. A. B. Grosart, 3 vols. (London, 1869–1876), 2:263–72. J. Selden, “Notes on Sir John Fortescue, De Laudibus Legum Angliae, ” in Opera Omnia, 3 vols. (London, 1726), 3:1183.

[85. ] “The Trew Law of Free Monarchies: Or the Reciprock and Mutuall Duetie Betwixt A Free King, and His Natural Subjects,” in The Political Works of James I: Reprinted from the Edition of 1616, ed. Charles Howard McIlwain (Cambridge, Mass., 1918), esp. 61–64.

[86. ] Bruce Galloway, The Union of England and Scotland, 1603–1608 (Edinburgh, 1986).

[87. ] BL Sloane MS 3479, fols. 60–61.

[88. ]Les Reports De Edward Coke, L’attorney generall le Roigne . . . (London, 1600), “To the Reader.” The preface is headed by a quotation from Cicero. “Lex est certa ratio. . . . ” Edward Coke, Le Second Part des Reportes . . . (London, 1602).

[89. ]Le Quart Part des Reportes . . . (London, 1604), sig. [B5].

[90. ]Quinta Pars Relationum . . . The Fifth Part (London, 1605), “To the Reader.”

[91. ] [Robert Parsons], An Answere to the Fifth Part of Reports . . . Lately set forth by Syr Edward Cooke, knight, the Kings Attorney generall. Concerning The ancient and moderne Municipall lawes of England which do apperteyne to Spiritual Power et Iurisdiction . . . By a Catholic Divine ([Saint Omer], 1606), preface, 12–16.

[92. ]Le Size Part des Reports . . . (London, 1607), “To the Reader.”

[93. ]La Huictme Part des Reports . . . (London, 1611), “To the Reader.”

[94. ]La Neufme Part des Reports . . . (London, 1613), “To the Reader.”

[95. ]Francogallia by François Hotman, ed. and trans. R. E. Giesey and J. H. M. Salmon (Cambridge, England, 1972), 497–513 for Hotman on lawyers; Edward Coke, La Dixme Part des Reports . . . (London, 1614), preface, for Coke on Hotman.

[96. ]Francogallia, ed. Giesey and Salmon, 109–10.

[97. ] Margaret Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick, N.J., 1949).

[98. ] I hope to deal elsewhere with the relationship between legal and political thought in the early seventeenth century.

[99. ] J. P. Sommerville, Politics and Ideology in England, 1603–1640 (London, 1986).

[100. ] I have been struck by Professor Holt’s emphasis in Magna Carta on the extent of an awareness of justice and the rule of law in the county communities of the twelfth and thirteenth centuries.

[101. ] Many early-modern historians see patriarchalism as the dominant social and political mentality of the late sixteenth and early seventeenth centuries. For an account see Gordon J. Schochet, Patriarchalism in Political Thought: The Authoritarian Family and Political Speculation and Attitudes Especially in Seventeenth-Century England (Oxford, 1975).

[102. ] Brooks, Pettyfoggers and Vipers, 132–36.