INTRODUCTION

When Charles II entered London in May of 1660, he might reasonably have anticipated governing a people who lauded the kingship and exalted the royal authority. Indeed, royalist fervor ran so high that the political nation imposed hardly any official conditions upon his return. Moreover, the Convention, which met from March to December of 1660, rolled back the clock by restoring the monarchy, the church, and the House of Lords. Still, Charles II could by no means claim an unalloyed victory. In the first place, most early reforms of the Long Parliament stood, denying him extra-parliamentary levies and recourse to the old prerogative courts. In addition, the Triennial Act of 1641 remained in force for the time being. But most telling of all, from the very beginning of the Restoration signs pointed unmistakably to the tenacity of radical ancient constitutionalism. The extent to which its language and ideas had taken root appears from a resolution passed by the Convention Parliament on May 1,1660, the eve of the king's return. Here the two houses resolved that “according to the ancient and fundamental laws of the kingdom, the government is, and ought to be, by King, Lords, and Commons.”

INTRODUCTION

If the middle ages saw the creation of an ancient constitution that Stuart rebels later deployed against their kings, the sixteenth century witnessed its more precise articulation. Indeed, throughout the Tudor period writers of different political persuasions repeated and elaborated on precisely those sources and stories that carried the ancient constitutionalist version of the past. Although they sometimes quibbled about certain details, virtually all found the essential institutions of English government flourishing in the Saxon age or earlier. And virtually all associated the common law with St. Edward and traced the survival of the ancient constitution through the conquest and the following centuries. That they did so suggests that seventeenth-century radicals deserve more credit for historical accuracy than they often receive. While they frequently put their own spin upon sources and stories, they nevertheless built on a tradition that descended to them through highly respected Tudor historical and legal writings. This chapter will examine the Tudor literature to which they were heir.

The literature itself was the product of an unprecedented inquiry into the nation's past, inspired by a confluence of ideas, events, and technology. Ironically, much of the initiative for this examination of early English history came from the Tudor monarchy, as it contested with the papacy for control of the English church. In order to legitimize the break with Rome, reformers, under royal sponsorship, probed historical records for proof that the English church represented the one, true religion that papists had long ago corrupted.

INTRODUCTION

The revolutionary potential of St. Edward's laws, the Modus tenendi Parliamentum, and the Mirror of Justices was first fully realized during the period from 1642 to 1660, when rebels of all stripes deployed them to justify rebellion, regicide, and republicanism. Modern scholars, as has already been noted, sometimes suggest that in the civil war period “political rationalism” and natural law theories began to rival ancient constitutionalist argumentation and eventually to supplant it. While it is true that other idioms of political thought appeared in parliamentarian discourse, I suggest in this chapter that the suppleness of the medieval canon has been greatly under-estimated. Not only did St. Edward's laws, the Modus, and the Mirror remain central to dissident theorizing, their value even increased. Indeed, they gave rebels familiar and convincing historical arguments with which to counter the royalists' powerful defense of the king. More particularly, the three sources served as ballast for a new line of anti-royalist argumentation. This was the doctrine of coordination, which the Long Parliament and its supporters fashioned from Charles I's Answer to the XIX Propositions.

To appreciate the critical role of St. Edward's laws, the Modus, and the Mirror, we must first get the lay of the ideological land. By mid-century, two divergent views of political society shaped the political thought of Stuart England.

ST. EDWARD AND THE SAGRALIZATION OF ENGLISH KINGSHIP

As the preceding chapter noted, St. Edward's laws deserve pride of place among the trinity of texts that formed the foundation of the ancient constitution. And St. Edward himself constituted the actual, non-legendary ancestor upon whom the ancestral constitution was based. This is a fact of some importance, since an historical construction founded on a mythical figure such as Brut might well have been extinct by the mid-seventeenth century, a casualty of the increasingly sophisticated scholarship associated with Sir Henry Spelman, John Selden, and Sir William Dugdale. As it was, the ancient constitution, with the exalted Confessor at its center, boasted a long and respectable medieval pedigree, nourished and sustained by generations of esteemed sources and writers. This chapter explores the early origins and literature of the ancient constitution and examines the beginnings of the process by which a cult of kingship was transformed into a cult of law.

The story commences in the early middle ages, when both Saxons and Normans discovered that linking themselves to the English past carried distinct political and legal advantages.

INTRODUCTION

The ancient constitutionalist vision of the past and the sources upon which it rested continued to be nourished by early seventeenth-century chroniclers, antiquaries, and the most erudite scholars of the era. Indeed, according to Glenn Burgess, this was the heyday of the ancient constitution. Occasionally, to be sure, writers differed as to whether it originated with the Britons or the Saxons, or whether each and every institution of Stuart government began in antiquity. Still, many learned Englishmen traced the essentials of their polity to the pre-1066 period, and many insisted that these survived the conquest intact as a result of consecutive royal promises. Their differences appear, then, as mere variations upon the theme of historical continuity from pre-conquest times to the seventeenth century.

Moreover, during the early Stuart period the ancient constitutionalist version of the past retained its plasticity. As in the middle ages and Tudor period, it was used to justify different, even antithetical, political ends. Indeed, so malleable was the ancient constitution of the pre-civil war period that it could accommodate a belief in divine right monarchy as well as a reverence for an immemorial parliament and common law. In Derek Hirst's words, the early modern mind was capable of conceiving “of both a sovereign king and a sovereign common law,” of both “absolute royal prerogatives and absolute rights to property.” The ease with which it did so is apparent in the writings of the oracle of the common law, Sir Edward Coke.

INTRODUCTION

When present-day visitors to the Houses of Parliament pass through St. Stephen's Hall, which connects medieval Westminster Hall with the Central Lobby and the House of Commons, they see on its walls a series of large murals centered around the theme “The Building of Britain.” Created in 1927, these paintings portray scenes associated with the history of parliament in general and the House of Commons in particular. Visitors who know their English history will appreciate the inclusion of depictions such as Sir Thomas More's refusal to grant Henry VIII a subsidy without proper debate in the Commons. And the very knowledgable will associate St. Stephen's Hall itself with the history of parliament, since St. Stephen's Chapel served as the meeting place of the Commons from 1547 until the great fire of 1834.

However, the meaning of the huge mural above the entrance to St. Stephen's Hall will require clarification even to the most erudite of visitors. A reproduction of a portion of the Painted Chamber associated with Henry III (1216–1272), it depicts three figures: St. Stephen in the center, his namesake King Stephen (1135–1154) to the right, and St. Edward the Confessor (1042–1066), the penultimate Saxon ruler before the Norman conquest and the only English king ever to be canonized, to his left. The presence of the two Stephens makes sense in a room devoted to the history of parliament. And Holy Edward's representation is understandable given Henry III's utter devotion to his patron saint.

The whig attempt to bar the duke of York from the throne combined with the lapse of censorship in 1679 to let loose a veritable flood of tracts, their number and variety unmatched since the civil war. Running through exclusion literature were the civil-war ideologies so noticeable earlier in the century. New tracts were written on the lines charted by Herle and Hunton; and although the Fuller Answer was not reprinted, the co-ordination principle was patently in the mainstream of political thought. Hunton's Treatise of Monarchie appeared in new editions, in 1679 and 1680, and the Answer to the Nineteen Propositions continued to work its old magic. It became readily available once more with the publication of Charles I's collected works in two editions (1662 and 1687), and the Political Catechism, based squarely on the Answer, was reprinted in 1679. That tract was frequently noticed in contemporary literature; and as late as March, 1683, copies were discovered at the Crown and Angel tavern that Titus Oates and his friends frequented. Equally to the point was the republication in 1679 and again in 1685 of the Parker society's papers on the antiquity of parliament, that work providing an intellectual mainstay for an immemorial house of commons.

Anti-co-ordination forces were just as zealous. Heylyn's Stumbling-block of Disobedience was reprinted in the clergyman's collected writings, this time with a subtitle drawn from the body of the work.

With the exceptions of Charles I and Charles Herle, the Presbyterian William Prynne more than any other individual imparted a distinctive shape and direction to the seventeenth-century controversy over the co-ordination principle in law-making, which was in turn indispensable to the ascendant theory of a parliamentary sovereignty in king, lords, and commons. He was influenced by the principle in writing the notorious Soveraigne Power of Parliaments, and it became prominent once more in his angry response to Leveller propaganda and the constitutional changes at the end of the civil war. He now undertook an historical investigation of early parliaments aimed at demonstrating from the past that the king and the house of lords were legitimate elements in the government of his own day. His chief concern was to support the house of lords: the peers were not sons of the Norman conquest, as the Levellers had contemptuously proclaimed; on the contrary, they had sat in parliament for hundreds of years before the conquest.

Prynne's historical studies of the 1650s and 1660s had a mixed effect on the general acceptance of the co-ordination principle. If its credibility was enhanced on the one hand by his successful elevation of the king and the house of lords in public esteem at a time when their political authority was under steady fire, still he set in motion the opposite intellectual process.