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A Prospectus for a “New” Constitutional History of Early Modern England1

Published online by Cambridge University Press:  11 July 2014

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The study of English constitutional history has fallen on hard times. Once an intellectually thriving field, constitutional history now conjures up visions of bad tweed and bow ties coupled with dryly-legalistic discussions of statutes, charters, parliamentary debates, Year Books, and legal reports. Indeed, whether Whig, Neo-Whig, Revisionist, or Post-Revisionist in orientation, constitutional history has traditionally concerned itself with the “activity of government”; it has emphasized the formal structures of government, their historical origins, their changing composition, their evolving roles, and functions. These formal structures, the Crown, Parliament, the Council, the established church, and the law courts, together constituted the sinews of government. Constitutional controversy arose when the respective roles and functions of these formal structures came into conflict. Accordingly, constitutional historians became experts on the anatomy and development of the particular organs of government and their changing roles yet they were often unable to see the broader conceptual forest in which they were standing. As a result, some critics have lampooned constitutional history and its leading proponents as lacking theoretical engagement and being overly preoccupied with the minutiae of government at the expense of conceptual sophistication and breadth of vision.

Research Article
Copyright © North American Conference on British Studies 2004

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This is in part a response to Robert Tittler's call for new approaches to the study of early modern British history in “Early Modern British History, Here and There, Now and Again,” Albion 31, 2 (Summer, 1999): 190-206. I am grateful for the comments of Richard Cosgrove, Jason Peacey, Daniel Woolf, John Morrill, Marcus Harvey, Jock Gunn, and an anonymous reader for Albion on earlier drafts.


2 This basic definition of constitutional history as the study of the “activity of government” derives from Elton, G. R., “The Future of the Past: Inaugural Lecture as Professor of English Constitutional History in the University of Cambridge, 1968,” in Return to Essentials: Some Reflections on the Present State of Historical Study (Cambridge, 1991), pp. 9294CrossRefGoogle Scholar.

3 Elton, , “The Future of the Past,” p. 92Google Scholar; Elton, G. R., The Practice of History (London, 1967), pp. 2829Google Scholar; for this emphasis on the formal structures of government see Elton's, widely used textbook, The Tudor Constitution: Documents and Commentary (2nd ed.; Cambridge, 1982)Google Scholar; and its companion volume: Kenyon, J. P., The Stuart Constitution, 1603-1689: Documents and Commentary (2nd ed.; Cambridge, 1986)Google Scholar.

4 Elton, in particular, has been the object of considerable criticism: Skinner, Quentin, “Sir Geoffrey Elton and the Practice of History,” Transactions of the Royal Historical Society 6th ser. (1997): 301–16Google Scholar; Jenkins, Keith, On What is History?: From Carr and Elton to Rorty and White (London and New York, 1995), ch. 3Google Scholar.

5 Skinner, , “Sir Geoffrey Elton,” pp. 313–14Google Scholar.

6 Cosgrove, Richard A., “Reflections on the Whig Interpretation of History,” Journal of Early Modern History 4 (2000): 147–67CrossRefGoogle Scholar; see also Butterfield, Herbert, The Whig Interpretation of History (London, 1931Google Scholar; reprint ed., London, 1965). Richard Cosgrove and Anthony Brundage are currently engaged in writing a book tentatively titled The Great Tradition: The Rise and Decline of English Constitutional History, 1870-1930 that will address in detail a number of these themes. I am indebted to Professor Cosgrove for freely offering his insights on the decline of constitutional history both as a research and teaching tradition in the 20th century.

7 Helen Cam to Isao Higashide, n.d., October 1956, Helen Cam papers, Girton College, Cambridge cited in Cosgrove, “Reflections,” p. 163.

8 For the idea of reading as an act of appropriation see Chartier, Roger, The Order of Books, trans., Cochrane, Lydia G. (Cambridge, 1994)Google Scholar; Chartier, Roger, “Text, Printings, Readings,” in Hunt, Lynn, ed.. The New Cultural History (Berkeley, 1989), pp. 154–75Google Scholar.

9 For the distinction between pre-modern and modern constitutionalism see: Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, 1995), p. 60CrossRefGoogle Scholar; see also Burgess, Glenn, Absolute Monarchy and the Stuart Constitution (New Haven and London, 1996), ch. 5Google Scholar; more generally see Mcllwain, Charles Howard, Constitutionalism Ancient and Modern (Ithaca, 1947)Google Scholar.

10 In 1645 William Prynne would go so far as to argue that Magna Carta, like any other statute, was not only subject to repeal but actually stood repealed in many of its particulars: Inner Temple, Petyt MS 511 v. 23, fol. 117v; Orr, D. Alan, Treason and the State: Law, Politics, and Ideology in the English Civil War (Cambridge, 2002), p. 161CrossRefGoogle Scholar.

11 For the classic discussion of this mentalité see Pocock, J. G. A., The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1957Google Scholar; reprint ed., Cambridge, 1987); see also Burgess, Glenn, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642 (London, 1992)CrossRefGoogle Scholar; Tubbs, J. W., The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, 2000)Google Scholar.

12 Baker, J. H., An Introduction to English Legal History (3rd ed.; London, 1990), pp. 208–11Google Scholar.

13 Ibid., p.208.

14 SirCroke, GeorgeThe Reports of Sir George Croke, ed. and trans., Grimstone, Harbottle (London, 1657)Google Scholar.

15 For Lane's report of Bates' Case see, SirLane, Richard, Reports in the Court of Exchequer Beginning in the third, and ending in the ninth year of the Raign of the Late King James (London, 1657), pp. 2231Google Scholar.

16 Baker, , English Legal History, p. 210Google Scholar; the twelfth volume is particularly important, because it contained Coke's opinion on proclamations (1610), which prior to the Interregnum circulated only in manuscript: Cope, Esther S., “Sir Edward Coke and Proclamations 1610,” American Journal of Legal History 15 (1971): 215–21CrossRefGoogle Scholar.

17 Coke 12 Rep. 74-76 in The English Reports, vol. 77 King's Bench Division VI containing Coke, Parts 5 to 13 (London, 1907), pp. 1,3521,354Google Scholar (hereafter cited as Coke Rep., 77 Eng. Rep.).

18 Maitland, F. W., The Constitutional History of England, ed., Fisher, H. A. L. (Cambridge, 1908; reprint, Cambridge, 1965), p. 302Google Scholar. Kevin Sharpe has noted that the number of proclamations issued during James I's reign and during the period of personal rule (1629-1640) averaged one per month; however, during the periods of 1625-29 and 1640-42-times of war and political instability-the rate actually rose to an average of about two per month: The Personal Rule of Charles I (New Haven and London, 1992), pp. 412–13Google Scholar.

19 Cope, , “Coke and Proclamations,” pp. 215–16nGoogle Scholar.

20 Orr, , Treason and the State, pp. 72, 76, 78Google Scholar.

21 Ibid., pp. 27-28; Barnes, T. G., Somerset 1625-1640: A County's Government During the “Personal Rule” (London, 1961), p. 34CrossRefGoogle Scholar.

22 Croke, , Reports, sig. N4r, p. 89Google Scholar.

23 Orr, , Treason and the State, pp. 72Google Scholar.

24 Johns, Adrian, The Nature of the Book: Print and Knowledge in the Making (Chicago, 1998), pp. 300–04CrossRefGoogle Scholar; Spencer, Lois, “The Printing of Sir George Croke's Reports,” Studies in Bibliography 11 (1958): 231–46Google Scholar.

25 There is little doubt that the “Mr Grimstone” named to this committee was the younger of the two Harbottle Grimstone's, father and son, who sat in the Long Parliament; thanks to Jason Peacey and Andrew Barclay of the History of Parliament Trust for their assistance in clarifying this point: Journal of the House of Commons, vol. 2 (London, 1803), p. 31Google ScholarPubMed.

26 The statute referred to is 1 Edward VI, cap. 12; see my discussion in Treason and the State, p. 20.

27 These remarks are most commonly attributed to SirGlynne, John: Jansson, Maija ed., Proceedings in The Opening Session of the Long parliament: House of Commons and the Strafford Trial, vol. 3, (Rochester, 2001), p. 140Google Scholar.

28 Ross, Richard J., “The Commoning of the Common Law: The Renaissance Debate over Printing English Law,” University of Pennsylvania Law Review 146 (1998): 329461CrossRefGoogle Scholar.

29 Johns, , Nature of the Book, p. 322Google Scholar; Orr, , Treason and the State, pp. 4647Google Scholar.

30 SirCoke, Edward, The First Part of the Institutes of the Lawes of England; Or A Commentarie vpon Littleton, not the Name of a Lawyer but of the Law it Selfe (London, 1628)Google Scholar; Helgerson, Richard, Forms of Nationhood: the Elizabethan Writing of England (Chicago, 1992), p. 91Google Scholar; Sharpe, , Personal Rule, pp. 656–57Google Scholar.

31 Journal of the House of Commons, 2: 4546Google Scholar; Jansson, Maija ed., Two Diaries of the Long Parliament (Gloucester, 1984), p. 85Google Scholar; these volumes subsequently appeared: SirCoke, Edward, The Second Part of the Institutes of the Lawes of England: Containing the Exposition of many Ancient and other Statutes (London, 1642)Google Scholar; idem, The Third Part of the Institutes of the Laws of England concerning High Treason and other Pleas of the Crown, and Criminall Causes (London, 1644); idem, The Fourth Part of the Institutes of the Laws of England Concerning the Jvrisdiction of the Courts (London, 1644). It appears that Kevin Sharpe's contention that these documents were never recovered is off base (Personal Rule, p. 657).

32 The volumes were ordered printed May 12, 1641: Jansson, Maija ed., Proceedings in the Opening Session of the Long Parliament: House of Commons, vol. 4, (Rochester, 2003), pp. 333, 337, 344, 346Google Scholar.

33 Helgerson, , Forms of Nationahood, pp. 8890Google Scholar.

34 Ibid., p. 91; the 2nd, 3rd and 4th volumes subsequently went through seven editions each as opposed to the 1st volume, Coke's Littleton, which went through at least nineteen, excluding abridgements.

35 I have explored this issue somewhat in my discussion of Connor Maguire's trial in early 1645, but at the time I had not realized the full potential of this approach: Orr, , Treason and the State, pp. 158–59Google Scholar.

36 Jansson, , Proceedings, 4: 5, 11, 14, quotation at p. 5Google Scholar.

37 Stacy, W. R., “Matter of Fact, Matter of Law, and the Attainder of the Earl of Strafford,” American Journal of Legal History 29 (1985): 333CrossRefGoogle Scholar; elsewhere I have suggested that Coke's later views on the law of treason marked a departure from his earlier arguments during his tenure as General, Attorney (Treason and the State, p. 25)Google Scholar.

39 Coke, , The Third Part of the Institutes, p. 30Google Scholar; see also The Second Part of the Institutes, p. 48; and for an opposing view with respect to Ireland see St. John, Oliver, An Argument of Law concerning the Bill of Attainder of High Treason of Thomas Earle of Strafford: At a Conference in a Committee of both Houses of Parliament (London, 1641), p. 63Google Scholar; St. John advanced the claim that, because the common law of England was in force in Ireland, the English law would recognize an Irish peerage, but not a French or Scottish peerage, because those realms were governed by different laws and customs.

40 Stoner, James R., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence, 1992), p. 48Google Scholar.

41 For examples of Lilburne's use of Coke's published writings see: Lilburne, John, Jonah's Cry out of the Whale's Belly (London, 1647), pp. 78Google Scholar; idem, The Grand Plea of Lieutenant Colonel John Lilburne (London, 1647), pp. 10-11; idem, The Oppressed Mans Oppressions Declared (London, 1647), pp. 5-6; idem, The Legall and Fundamentall Liberties of the People of England Revived, Asserted, and Vindicated (London, 1649), pp. 2,11, 44, 51; see also Seaberg, R. B., “The Norman Conquest and the Common Law: the Levellers and the Argument from Continuity,” Historical Journal 24 (1981): 791806CrossRefGoogle Scholar; I am preparing an article that will consider Lilburne's use of Coke's published works in fashioning a common law conception of “negative” liberty and a “populist” conception of the ancient constitution.

42 For a performative conception of reading see Grafton, Anthony and Jardine, Lisa, “Studied for Action': How Gabriel Harvey Read His Livy,” Past & Present 129 (1990): 3033Google Scholar.

43 Fox, Adam, Oral and Literate Culture in England, 1500-1700 (Oxford, 2000), p. 41Google Scholar.

44 Ibid., pp. 39-40.

45 Jansson, , Proceedings, 4: 138–42Google Scholar.

46 Jansson, , Proceedings, 4: 148, 152-54, 212, 216-17, 219, 314-15, 325, 411–12Google Scholar; St. John, Argument of Law.

47 SirBacon, Francis, Law Tracts (London, 1741), pp. 89Google Scholar.

48 Ibid., pp. 5-6.

49 Ibid., p. 15

50 An excellent discussion of the conflicting agendas of Coke and Bacon over the codification of the English law remains Helgerson, , Forms of Nationahood, pp. 7378Google Scholar.

51 Coke 8 Rep. 118a, 77 Eng. Rep. 652 (KB).

52 Gough, J. W., Fundamental Law in English Constitutional History (Oxford, 1955), pp. 3132Google Scholar; SirPollock, Frederick, The Expansion of the Common Law (London, 1904), p. 122Google Scholar.

53 Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA, 1967; Cambridge MA, 1992), pp. 31, 177Google Scholar; Baker, , English Legal History, p. 241Google Scholar; Stoner, , Common Law and Liberal Theory, pp. 4862Google Scholar.

54 Gray, Charles M., “Bonham's Case Reviewed,” Proceedings of the American Philosophical Society 116 (1972): 3558Google Scholar.

55 Harvard Law School MS 113, fols. 190-191; Bodleian Library, Tanner MS 418, fols. 35-37; Orr, , Treason and the State, p. 162Google Scholar.

56 Prynne, William, A Briefe Memento To the Present Unparliamentary lunto Touching their present Intentions and Proceedings to Depose and Execute, Charles Steward, their lawfull King (London, 1649)Google Scholar; for a recent discussion see Kelsey, Sean, “The Death of Charles I,” Historical Journal 45 (2002): 727–54CrossRefGoogle Scholar.

57 For an example of the regicides' use of this language see: Cook, John, King Charts his Case: or an Appeal To all Rational Men, Concerning His Tryal at the High Court of Justice (London, 1649), p. 27Google Scholar.

58 Prynne, William, The Subjection of all Traytors, Rebels, as well Peers, as Commoners in Ireland, to the Laws, Statutes, and Trials by Juries of good, and lawfull men of England, in the King's Bench at Westminster, for Treasons perpetrated by them in Ireland, or any foreign Country out of the Realm of England. Being An Argument at Law made in the case of Connor Maguire, an Irish Baron (London, 1658)Google Scholar.

59 Johns, , Nature of the Book, p. 321Google Scholar.

60 Ross, Richard J., “The Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter, and Identity, 1560-1640,” Yale Journal of Law and the Humanities 10 (1998): 229326Google Scholar.

61 Ibid.: 277-78.

62 Prest, Wilfrid R., The Inns of Court Under Elizabeth I and the Early Stuarts, 1590-1640 (London, 1972), p. 112nGoogle Scholar; Thomas, Keith, “Age and Authority in Early Modern England,” Proceedings of the British Academy 62 (1976): 211–12Google Scholar.

63 Thomas, , “Age and Authority,” pp. 207-08, 210Google ScholarPubMed; George Minois has noted that the phenomenon of “gerontocracy” was not confined to England but was common to most western European states during the sixteenth century (History of Old Age: From Antiquity to the Renaissance, trans., Tenison, Sarah Hanbury (Chicago, 1989), ch. 10Google Scholar.

64 Fox, , Oral and Literate Culture, pp. 36, 43, 271–81Google Scholar; Fox, Adam, “Remembering the Past in Early Modern England: Oral and Written Tradition,” Transactions of the Royal Historical Society, 6th ser. (1999): 236Google Scholar; Fox, Adam, “Custom, Memory, and the Authority of Writing,” in Griffiths, Paul, Fox, Adam, and Hindle, Steve, eds., The Experience of Authority in Early Modern England (London, 1996), pp. 9798Google Scholar.

65 For example, see: Wood, Andrew S., “Custom, Identity, and Resistance: English Free Miners and Their Law c. 1500-1800,” in Griffiths, Fox, and Hindle, , The Experience of Authority in Early Modern England, pp. 249–85Google Scholar; see also Woolf, D. R., “The Common Voice': History, Folklore, and Oral Tradition in Early Modern England,” Past & Present 120 (1988): 3940CrossRefGoogle Scholar.

66 Jansson, ed., Proceedings, 3: 170, 174Google Scholar; elsewhere I have recounted a similar incident relating to the testimony of Alderman Hoyle of York during Archbishop Laud's impeachment concerning the customary form of civic procession in York Minster since “time out of Minde of Man”: Orr, D. Alan, “Sovereignty, Supremacy, and the Origins of the English Civil War,” History 87 (2002): 486–87CrossRefGoogle Scholar.

67 Perceval-Maxwell, Michael, The Outbreak of the Irish Rebellion of 1641 (Kingston and Montreal, 1994), pp. 5961Google Scholar; Wedgwood, C. V., Thomas Wentworth, First Earl of Strafford, 1593-1641 (London, 1961), pp. 239–45Google Scholar.

68 Loftus's experience with the administration of martial law in Ireland went back as far as 1597 and the Nine Years' War predating the most important printed evidence against Strafford, James I's Book of Instructions to Viscount Falkland of 1622 (Jansson, , Proceedings, 3: 170, 181Google Scholar; Edwards, David, “Ideology and Experience: Spenser's View and Martial Law in Ireland,” in Morgan, Hiram, ed., Political Ideology in Ireland, 1541-1641 (Dublin, 1999), p. 153Google Scholar.

69 While McIlwain was critical of the ancient constitution's inability to impose practical and effective institutional checks on sovereign power, Tully has suggested that pre-modern constitutional forms offer a more desirable model for accommodating minority demands for cultural recognition than the univocal and uniform institutional norms of modern constitutionalism (Strange Multiplicity, ch. 4, esp. p. 131).

70 Sommerville, Johann P., Royalists and Patriots: Politics and Ideology in England (London, 1986; London, 1999)Google Scholar.

71 The classic statement of this approach is Elton's The Practice of History.

72 Robert Tittler has raised similar concerns about the state of early modern British history, largely blaming the limitations of Elton's approach to the subject (“Early Modern British History,” p. 197).

73 Ibid., p. 205.

74 For example see Helgerson, Forms of Nationahood; Norbrook, David, Writing the English Republic: Poetry. Rhetoric, and Politics, 1627-1660 (Cambridge, 1999)Google Scholar.

75 Sharpe, Kevin, “Print, Polemics, and Politics in Seventeenth-Century England,” Journal of British Studies 41 (2002): 244CrossRefGoogle Scholar; for an assessment of recent historiographical trends including the growth and impact of book history in the 1990s see Patterson, Annabel, “‘Ideas seldom exist apart from practice’: Turning over Millennial New Leaves,” Journal of British Studies 41 (2002): 388401CrossRefGoogle Scholar.

76 Although I have long-standing reservations about the role of Habermasian categories such as the “public sphere” in the analysis of early modern society and politics, I do not question the scholarly value of engaging with theoretical-historical constructs such as that offered in Habermas, Jürgen, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Burger, Thomas with the assistance of Frederick Lawrence (Cambridge, MA, 1991)Google Scholar; see also Zaret, David, “Religion, Science, and Printing in the Public Sphere in Seventeenth Century England,” in Calhoun, Craig, ed., Habermas and the Public Sphere (Cambridge MA, 1992), pp. 212–35Google Scholar; Mah, Harold, “Phantasies of the Public Sphere: Rethinking the Habermas of the Historians,” Journal of Modern History 72 (2000): 153–82CrossRefGoogle Scholar.

77 James Tully associates this approach, which derives heavily from Ludwig Wittgenstein's later writings, with the work of Quentin Skinner, Richard Tuck, John Dunn, and their students, although it arguably encompasses a broader range of approaches such as that emanating from J. G. A. Pocock and his students in the United States: Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” History and Theory 8 (1969): 353CrossRefGoogle Scholar; Tully, James, “The Pen is a Mighty Sword: Quentin Skinner's Analysis of Politics,” in Tully, James, ed., Meaning and Context: Quentin Skinner and his Critics (Cambridge, 1988), pp. 725Google Scholar; Tully, , Strange Multiplicity, pp. 35, 37Google Scholar.

78 This, of course, is an approach of which I have myself made frequent use in the past and will continue to draw on when appropriate: Orr, , “Sovereignty,” pp. 475–76Google Scholar.

79 Vallance, Edward, “The Kingdom's Case: The Use of Casuistry as a Political Language, 1640-1692,” Albion 34 (2002): 557CrossRefGoogle Scholar.

80 Both Wentworth's and Maguire's trials concerned the jurisdiction of English venues, the English House of Lords and King's Bench, to try treasons committed in Ireland by members of the English and Irish peerage: Orr, , Treason and the State, pp. 6, 49-50, 75n, 97, 143, 151, 154–55Google Scholar; more generally see: Price, Polly J., “Natural Law and Birthright Citizenship in Calvin's Case,” Yale Journal of Law and the Humanities 9 (1997): 73145Google Scholar.