This is a brief note on the two competing “traditions” of
the English constitution from the High Medieval through to the Early Modern. I
use the word “tradition” pointedly – both views or schools saw themselves as
upholding an old and proven form of constitutionalism. In the 17th
century Locke would offer a constitutional theory from first principles; that
is one plausible starting point for a “Modern Tradition” of the Constitution,
but at that point it was an innovation, not anything passed on.
“The Ancient Mixed Constitution”
The first of the two Pre-Modern Traditions is that of the “Ancient
Constitution”. In one form or another, this view traces the mixed
constitution of England and then Great Britain to some form of hoary,
pre-Conquest past. The general idea is that the balance of powers and rights
and duties is age-proven and heritable – to revert upon it is to breach an
ancient and healthful compact.
This tradition can be found in one form or another from the
time of Magna Carta (1215) onwards. Magna Carta itself establishes rather
than reaffirms rights, though King John stipulates that the rights so granted
are heritable by “their [the Barons’] heirs forever”. Importantly, though, Magna
Carta’s Minor brother – the Forest
Charter – specifically reaffirms pre-existing, even pre-Conquest rights of
forestage. Just as Domesday gave cover of the continuity of law to the great
changes of the Conquest, so the Forest Charter establishes common rights to
land by appeal to a previous age.
The High Medieval jurist Henri de Bracton (1210-1268) forms a link in this tradition, by
specifying a distinctive of English law, unique (to his mind) amongst all law
codes: the importance of “custom”, unwritten law and tradition approved by
usage. Though Bracton’s categories of the purpose of law are otherwise entirely
in line with the continental and civil tradition of law, this specific
additional category gives his view of English law a distinctive twist.
The Plantagenet Chief Justice and Chancellor Sir John Fortescue (1394-1479) drew heavily
on two sources for his classic definition of the English constitution as “both
royal and political” (i.e. based both on the authority of the Crown and the
people): first, the mythology around the founding of England by Brutus the
Trojan, and the rights implied by the choosing of a King for the Britons; and
second, Thomas Aquinas and his continuator and confessor Ptolemy of Lucca. The
mixed constitution of England was proven by long usage and was an inheritance –
like the Forest Charter, the idea of ancestral rights is vital here, and for
Fortescue those rights date from deep Antiquity.
The Elizabethan diplomat Sir Thomas Smith (1513-1577) does not innovate on his sources in
his “De Republica Anglorum”, for all that the Reformation has changed matters.
Smith particularly uses the language of England having a “mixed constitution”,
where each part (or “branch” as we might now call it) balances the others. Like
Fortescue, he compares this favourably to the French constitution (though
Fortescue is overall much more balanced and nuanced).
Sir Edward Coke (1552-1634),
the early Stuart jurist and chief author of the “Petition of Right”, also relied
on the idea of inherited rights. His Law Reports regularly referred to the idea
of the Ancient Constitution. The “Petition”, presented to Charles I in 1628,
referred to statutes granted under Edward I and III barring taxation without
Parliamentary consent, concluding that “your subjects have inherited this
freedom”. The body (Parliament) which had defined this right had never revoked
it; the King could not alone do so. This is entirely in line with the
pre-Reformation logic of the Forest Charter, Bracton’s proven usage of customs,
and Fortescue’s ancient constitution; this is not simply, then, a logical
innovation of the Reformation.
The Lords Declarant of 1688, led by Lord Halifax (1633-1695), chiefly recapitulate the Petition of
Right’s logic in their “Declaration of Right” and “Bill of Rights” of 1689. Particularly, they claim to act in “vindicating
and asserting their ancient rights and liberties”. When we trace the
constitutional tradition – of a constitution both royal and political, of the
right to choose a King finally residing with the people, of heritable political
rights – we see that there is a deeper well to the actions of the Lords
Declarant than simple ambition (though no doubt there was that, as well). Their
actions are not Whiggish cover for Enlightenment ideas – the Lords included
many Tories, and their shared tradition was one they traced back centuries or
even (re Brutus) millennia.
Sir Humphrey Mackworth
(1657-1727) and his famous intellectual successor Lord Bolingbroke (1678-1751) sought to affirm this idea of an “Ancient
Constitution”. Bolingbroke did so particularly in the face of Walpole’s “New
Whigs”, who favoured a much stronger pseudo-Parliamentary executive (but
without regular or open elections) and a weakening of the royal power.
Bolingbroke sought to fuse the remaining non-Jacobite Tories with the “Old Whigs”
in defence of the “Ancient Constitution” vindicated in 1688. Though in his own
time this only worked as a short-time measure, in the long run his vision won
out.
That it won out can be seen in the career of the last great
Old Whig, Edmund Burke (1729-1797).
(Burke used the term “Old Whig” as a marker of a friend of the Old
Constitution, against New Whigs radicalised by the Enlightenment.) Burke – like
the Lords Declarant of 1688 – is sometimes seen as inventing wholesale, or
taking from some proto-liberal Puritans, a constitutional idea of inheritance
and mixed government. He is also accused on inconsistency in his political
thinking – for the American
Revolution, against the French
Revolution, because he was (say) in favour of a slaver revolution and against a
progressive revolution. Of course the accuser in the latter case exposes their
own priors, but the case must be answered. Burke supported the American
Revolution as a vindication of inherited English rights, of taxation relating
to representation and so forth; he opposed the French Revolution for its tearing
down of inherited traditions. He opposed Dr Price’s reading of the Glorious
Revolution as an Enlightened and Liberal, because he did not believe the
English Constitution was discoverable from raw first principles; it was a
matter of inheritance. Inheritance and familial rights were a regular theme of
Burke’s – consider his opposition to the Popery Laws in Ireland affecting land
ownership and inheritance, or his plans for an abolition of slavery based on
emancipating West Indian slaves via familial land grants.
At the end of our period, we see this theory of the English Constitution
influencing the American Founding Fathers (particularly Adams) and impressing
several French observers (particularly de Lolme and de Maistre).
The Absolutist Constitution
The opposing tradition has a less simple “through-line”, but
rather tends to adduce tradition (whatever the tradition is) in favour of absolute
monarchy. The “mixed government” tradition relies on one general argument (the
inheritance of rights in the Ancient Constitution) – the Absolutist
Constitution springs from several sources but all find that the right of
inheritance or the basic law of nature reposes power in perpetuity in the King.
Sir Robert Filmer
(1588-1653) was the foremost theorist of Absolutism under the aegis of James I
and Charles I. His general principle in “Patriarcha” is that power is always
invested by God in fathers. Adam was both father of a biological family and King
of the world; subsequently Kings serve as fathers of their nations and so have
final authority vested in them, with no right of appeal. Where Fortescue relies
on Thomas/Ptolemy to adduce Scripture in favour of mixed government, Filmer
makes the opposite argument. Filmer is Locke’s target in the “Two Treatises on
Government”.
Thomas Hobbes (1588-1679)
is, by some measures, a “tradition”-based theorist in a way his counterweight
Locke is not. Hobbes bases a significant part of his argument in “Leviathan” on
the pattern of Scriptural government: at each stage ultimate authority in the
people of God is vested in one figure (High Priest, King, etc). This both demonstrates
a general pattern in nature and is a political economy extended by the New
Covenant to “Christian” nations. Hobbes also regularly draws on “first
principle” arguments, and is plainly an Enlightenment writer, but he (seemingly
sincerely; it’s hard to tell, as Hobbes is a Machiavellian crank) does use a
similar form of argument to Filmer. Interestingly, Hobbes is perhaps the only
author on this list to seriously frame the discussion in terms of the
Reformation – one of his great interlocutors is Cardinal Bellarmine, whose
anti-Absolutism Hobbes opposes.
Finally, Robert Brady
(1627-1700) was the great Stuart apologist in the later Absolutist era, under
Charles II and James II. He took aim at the Ancient Constitution, arguing
specifically that any such Constitution was entirely uprooted by the Conquest,
the feudalism of which vested final authority in the King. Magna Carta, to
Brady, was a relief of feudal duties by the King, not an appeal to any older
idea of right, or any sort of personal property to be appealed to by future
generations. It was entirely in the hand of the King to give and take away. It
was to Brady that Mackworth and Bolingbroke replied, seeking to counter this
argument. Where for Filmer and Hobbes, absolutism is founded on Scriptural ideas
of kingship, for Brady there is, if you like, a different “Ancient Constitution”
and legal order – but stemming from 1066, not Brutus and the Saxons.
Conclusion
The strength of the Absolutist tradition is, I think, its
fairly clear and direct arguments from Scriptural patriarchy, and Brady’s
careful historical work on feudal duty. As an “Ancient Constitutionalist”,
naturally I have not been wholly convinced. For instance, the Forest Charter
certainly presumes pre-Conquest rights were viable claims, and Bracton,
Fortescue, and Smith all assume an antique constitution by one route or
another. The Ancient Constitution also cannot be simply be dismissed as
Whiggish pettifoggery – its earliest systematic exponent is Fortescue, who
relies upon Scholastic writers and who (like Bracton) holds to a very
traditional view of the moral purpose of princes and kings.
Next time I may write about the later Liberal
counter-tradition, or focus in on one or more of these authors.
