Ancient Constitution Research Articles

“Free Passage” for the “King's True Liegemen”: The Meaning of Free Trade in a Corporate Age, 1555–1624

AbstractScholars of late have come to reevaluate and appreciate the achievements of merchant companies that fostered commercial networks and established new global trade routes. This research would seem to lend support to historians who have characterized early seventeenth-century calls for “free trade” as mere sloganeering driven by provincial merchants suspicious of the London-dominated corporations. This article challenges this view and argues that free trade ideas had deep roots in early modern political culture. It traces the origins of these ideas to protests in the sixteenth century and shows how a broad coalition of interests drew upon ideas of property rights and the ancient constitution to challenge the new companies. So compelling were free trade arguments that they became a commonplace in the economic debates of an emerging public sphere. A reconsideration of the free trade campaign that is attentive to interactions and negotiations between the Privy Council, Parliament, and the public highlights the ability of the early modern state before the 1630s to readjust the political economy of the commonwealth.

"The right we have to our owne bodies, goods, and liberties": The Freedom of the Ancient Constitution and Common Law in Milton's Early Prose.

Scholars have long recognized the importance of liberty in Milton's early prose, but they tend to center their analysis on republicanism. Although he would go on to express republicanism, Milton's early tracts tie liberty to English political and legal traditions rather than classical ones. Milton, in his early tracts, utilizes the language of the ancient constitution and the common law as he centers liberty on the property and bodies of English citizens, thus framing liberty in distinctly English terms. Additionally, Milton's early prose accepts the power of the monarch, revealing Milton's initial commitment to the existing political structure.

The concept of dignity in Edmund Burke’s writings on the French revolution

ABSTRACT This paper argues that the concept of dignity played an important role in the political thought of Edmund Burke. It seeks to show that, in contrast with the egalitarian and individual version of dignity associated with Immanuel Kant, Burke devised a conception of dignity that rested on reverence, grandeur and formality, to be manifested through institutions, customs, and social relations. Burkean dignity was thus closely linked with the ancient constitution. In his thought, dignity played an essential role in maintaining social stability and ensuring wise governance. This conviction informed Burke’s opposition to the French Revolution, which he feared would destroy the conditions necessary for dignity to thrive. Unpicking Burke’s understanding of dignity thus gives us new insights into the intricacies of his political thought and another perspective on his opposition to the French Revolution.

Imoinda's Rebellion: Sovereignty, Slavery, and the Ancient Constitution in Aphra Behn's Oroonoko

Imoinda's Rebellion: Sovereignty, Slavery, and the Ancient Constitution in Aphra Behn's Oroonoko

History, Filmerian Patriarchalism and Exclusion Royalism

There is an assumption in scholarship focused on seventeenth-century English political thought that the political ideology constructed by royalists writing during the Exclusion Crisis was similar to Robert Filmer's patriarchalism. This paper contests this assumption by focusing on the inconsistencies between Filmer's view of history and that of the Exclusion royalists. Filmer's Adamic history necessitated a static conception of sovereignty that placed virtually no limits on the monarch. Exclusion royalists, however, adopted a fluid and changing view of sovereignty that placed limitations on monarchical power and was motivated by histories grounded in the ancient constitution or the conquest of 1066.

The notion of “truth” (“pravda”) in the Late Medieval Bohemia

The paper deals with the semantic transformation of the Old Czech term “pravda” (meaning “truth” or “justice” in different contexts) in the political and legal socioleсt of the Bohemian nobility from the end of the 14th till the end of the 15th century. This term was used in the charter issued by the Bohemian lords on the 5th of May, 1394 in such a way that it received a meaning of “straightness” denoting a legal reference point set in the past once and forever which does not allow any deviations. The lords declared their will “to put straight the Bohemian land and to bring it to the law and to the truth—in such a way as it stood firm in truth in the times of our forefathers.” The Land constitutions (Zemské zřízení) of the year 1395 written by the lords appeal to an unnamed “ancient constitution” and reproduce some laws from the “Statutes of the Kingdom” issued by Charles IV in 1355. However, in some other cases the Land Tables are inconsistent with the written law as they express their authors’ own notion concerning the social justice. An explanation could be found in the treatise “Land’s laws” by Ondřej of Dubá written around the turn of the 15th century: Here the term “pravda” means an opinion of a litigating person who considers himself to be right. The Hussites of the 15th century used the term as a motto, however, they meant the “God’s truth” (Old Czech: “pravda Boží”) and not the human one. In 1421 the diety of Čáslav issued a decree obliging everybody to confess the Four Prague Articles as “the truths of God”. Due to the absolutization of the term the Hussite legists of the second half of the 15th century Ctibor, of Cimburk and Viktorín of Všehrdy considered the “pravda” to be an impersonal, objectively given reality, i. e. the verity.

British Enlightenment Theatre: Dramatizing Difference

British Enlightenment Theatre: Dramatizing Difference

Revolutionary amnesia and the nature of prerogative power

Abstract What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards. It assumes that these powers are inherent in or intrinsic to the Crown and it assumes that these powers are common law powers, meaning that they are constituted or conferred by the common law. This article takes issue with these conceptions of the nature of prerogative power. It shows that the idea that prerogative powers are sourced in the common law is derived from the seventeenth century’s theory of the ancient constitution; a theory famously advocated by Sir Edward Coke and embodied in his observation that “the King hath no prerogative but that which the law of the land allows him.” However, as the article shows, this theory of the ancient constitution was not an accepted theory of law in the seventeenth century, but rather an intensely contested political theory. It occupied a battlefield of constitutional ideas along with theories of kingly power sourced in conquest and the divine. Moreover, although these theories disagreed about the source and extent of prerogative power, they all posited a protocorporate Crown wedded to dynastic succession. The article shows that, from the perspective of a corporate Crown, the Glorious Revolution of 1689 resulted in the effective dissolution or dormancy of the kingly corporation embodied in James II, requiring that the Crown and kingly power be remade anew in the United Kingdom’s last “historically first” constitutional event. Through a close reading of the Bill of Rights and the proceedings of the Convention Parliament of 1689, the article evidences the statutory remaking of the Crown and prerogative powers and shows how from 1689 to today prerogative powers should be understood as a grander form of statutorily delegated power.

George Chapman, Edward Coke, and Crooked Justice

ABSTRACT This article proposes a new interpretation of several works by the poet and playwright George Chapman, in light of Chapman’s evident familiarity with the figure, and the writings, of the jurist Edward Coke. The article first examines Chapman’s Chabot as a topical dramatization of Coke’s removal from office and disgrace in 1616–17, then proceeding to a consideration of the complex influence of Coke’s jurisprudence – especially his writings and rulings on mitior sensus – on Chapman’s career as poet and translator, on his views of the law and of the ancient constitution, and on his efforts at self-defence against multiple accusations of libel and slander.

The Historiographical Typology of the English Royalism in the First Half of the Seventeenth Century

The topic of the present paper provides an insight into the royalist movement of the seventeenth century England, pre-eminently focusing on the Civil War era. Royalist, or constitutional royalist is a term to describe a moderate political group of the 1640s, concentrating around King Charles I, as his advisors. Recent results identified and categorized some of the main political thinkers of this faction. However, this categorization still has its own limits and is in the need of further clarification. The study is meant to highlight the defining elements of the royalist political discourse, including the notions of the rule of law, the ancient constitution and absolutism. The present paper also aims to investigate how the pre-existing political theories and doctrines from the Medieval and Tudor-era influenced the narrative of those, who remained to be loyal to the king, amidst the turbulence of the Civil War.

McTague, John. Things That Didn’t Happen: Writing, Politics and the Counterhistorical, 1678–1743.

McTague, John. <i>Things That Didn’t Happen: Writing, Politics and the Counterhistorical, 1678–1743</i>.

Constitutional ideas of the Enlightenment era and the legal doctrine of Catherine II

The article substantiates the position that the teachings of the Enlightenment were compatible with the foundations of class society and absolute monarchy. The formation of the branch of constitutional law is usually associated with the “Great Rebellion” and “Glorious Revolution” in England. However, as a result of the English revolution, an unwritten constitution appeared, the interpretation of which gave rise to three approaches: the “divine right” of R. Filmer, the theory of the social contract of J. R. Tolkien. Locke and the theory of the “ancient constitution”. The foundation of the science of constitutional law was laid by the teachings of the Enlightenment of the XVIII century. The ideas of “natural” equality, personal and political rights and freedoms, the restriction of “despotism” by law and the separation of powers contradicted the foundations of class society and absolute monarchies, but they were compatible with them. Enlightenment figures held positions in the royal service or were influential writers of their time. The doctrine and lawmaking of the “enlightened” monarchy of Catherine II was based on these teachings, which led to the assimilation of a number of constitutional and legal ideas and the formation of state law of the Russian Empire.

Stephanie Elsky. Custom, Common Law, and the Constitution of English Renaissance Literature

This is a fascinating book on an immensely important topic for our understanding of the relationship of literature and law in early modern England: custom ‘as a source of poetic creativity and political possibility’ (p. 2). Much of the book turns on the question of how early modern literature engages the myth of the ancient constitution, or the fiction of the common law as having existed from ‘time immemorial’. The myth was used to reject any suggestion that the English common law was the product of conquest, and to assert the authority of the English over their law. The ground for this understanding is laid in Chapter 1, in a discussion of John Pocock’s The Ancient Constitution and the Feudal Law. A quite different story might be told about early modern literature in relation to Pocock’s argument that the myth was used to obscure, perhaps even actively suppress, an understanding of the common law’s relation to the feudal. As the legal historian S. F. C. Milsom noted in his Natural History of the Common Law (2003), feudally derived customs generated legal ‘monsters’. But in its consideration of custom as a ‘rich sense of the presence of the past’ (p. 116) informing early modern literary experimentation, Elsky’s book gives us a lot to reckon with.

Martin Luter wobec Sacrum Imperium

We have a great literature about theology and political thought of Martin Luther, but the researchers of his political thoughts do not see in his writings the theory of international relations. The aim of this text is the presentation my thesis that this theory exists. It result from Luther's thesis that the rebel princes of the Sacred Empire are not the rebellious lords counter the emperor, but the sovereign monarchs of sovereign states. This text shows the evolution of Luther's position in this matter. First, Luther acknowledges the right of princes to rebel only in religious matters, then against the imperial tyranny (the argument from the ancient constitution), and c. 1530 he considers them full sovereigns. Relations between the territorial sovereigns and the emperor are based on the law of nature. This idea makes Luther predecessor of the theory of international relations of Thomas Hobbes.

PARLIAMENT AND THE CROWN JEWELS IN THE ENGLISH REVOLUTION, 1641–1644

AbstractThis article argues that parliamentary debates over the access to and control of the crown jewels from 1641 to 1644 were intrinsic to the emergence and proliferation of revolutionary ideas about political sovereignty in the earliest stages of the English Civil Wars. In combining the methodologies of parliamentary history with theoretical scholarship on the material foundations of power, it demonstrates that shifting attitudes toward the royal regalia were indicative of more general developments in parliamentary thinking on the origins and limits of monarchical authority. In so doing, it contributes to recent scholarship on the problem of ‘ideological escalation’ at Westminster, demonstrating how quickly an initially radical proposal for access to the crown jewels became sufficiently popular in the House of Commons to authorize the melting down of the royal regalia only a year later. By emphasizing the centrality of the crown jewels to ongoing debates over the ‘ancient constitution’, it suggests that their destruction was understood as a step towards the abolition of monarchy per se.

Of 'Rage of Party' and the Coming of Civility

Of 'Rage of Party' and the Coming of Civility

THE SAXON REPUBLIC AND ANCIENT CONSTITUTION IN THE STANDING ARMY CONTROVERSY, 1697–1699

AbstractThe pamphlet controversy caused by the proposal of William III to maintain a peacetime standing army following the Treaty of Ryswick (1697) tends to be understood as a confrontation of classicists and moderns in which the king's supporters argued that modern commerce had changed the nature of warfare and his opponents drew on classical republicanism to defend the county militia. But this characterization neglects the centrality of the Saxon republic and ancient constitution in the debate. English opponents of the standing army, including Walter Moyle, John Trenchard, and John Toland, went further than adapting the republicanism of James Harrington, who had rejected ancient constitutionalism during the Interregnum, to the restored monarchy. Their thought was more Saxon than classical and, in the case of Reverend Samuel Johnson, it was entirely so. However, the Scot, Andrew Fletcher of Saltoun, adapted neo-Harringtonian arguments to argue that modern politics could no longer be understood by their Gothic precedents. Above all, the king's supporters needed either to engage ancient constitutionalists on their own terms, as did one anonymous pamphleteer, or, as in the cases of John, Lord Somers, and Daniel Defoe, reject the relevance of ancient constitutionalism and Saxon republicanism completely.

Statute of the Town and Island of Korčula 1214/1265 and issues of (dis) continuity of old and new constitutionalism

In classic natural law the issue of constitution was related to the laws, institutions and practice of organising and directing states and the political system. According to this understanding, every political system of town-state had a constitution. The contemporary meaning of constitution nevertheless gained specific and valuable foundation: today the constitution means the establishment of a special form of political organisation. Contemporary constitutions talk of limited government. With a constitution, political power is constituted and limited at the same time. Some states are constitutional because they have a limited and responsible government and others are not. In the latter case, we are talking about states that have a constitution, but do not have constitutionalism. After civil revolutions, constitutionalism becomes the central mechanism of control of political power and ensuring freedom. This text opens up the question of whether the Statute of Korčule of the year 1214/1265, as a normative projection of municipal organs in the Town and Island of Korčula (assembly of all people, duke, grand council, small council, curia, utility services...), provided the base for researching the (dis)continuity of „ancient constitutionalism“ and classic rational, uniform and contractualistic forms of modern constitutionalism which is based on the constitution as the highest legal act and court control of constitutionality. In conclusion, the Statute of the Town and Island of Korčula, as a unique normative crossword puzzle of medieval institutions, special freedoms and multi-level jurisdictions, represented a real historical platform. From this platform all those bearers of power who implemented power could be controlled and balanced either within legal boundaries or they strived for absolutism and corruption.

Burke and the Ancient Constitution

Перевод с английского языка: Pocock J. G. A. Burke and the Ancient Constitution — A Problem in the History of Ideas // The Historical Journal. — 1960. — Vol. 3, no. 2. — P. 125–143.

The British women's suffrage movement and the ancient constitution, 1867-1909

Between the second Reform Act and the rise of Edwardian suffragette militancy, a critique of women's political exclusion based on a re-reading of British constitutional history was developed first by constitutional lawyers and later by a small but influential network of suffragist historian-activists. These scholars came to view women's enfranchisement not as an innovation but as the restitution of lost rights. This article examines these legal-historical arguments and the alternative narrative of constitutional history that emerged out of them, situating these developments within the lineage of ancient constitutionalist discourse going back to the 'common-law mind' of the early seventeenth century.