The ancient constitution of England was a 17th-century political theory about the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

, and the antiquity of the

House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...

, used at the time in particular to oppose the

royal prerogative The royal prerogative is a body of customary authority, Privilege (law), privilege, and immunity recognised in common law (and sometimes in Civil law (legal system), civil law jurisdictions possessing a monarchy) as belonging to the monarch, so ...

. It was developed initially by

Sir Edward Coke Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan and Jacobean eras. Born into an upper-class family, Coke was ...

, in his

law reports A or is a compilation of judicial opinions from a selection of case law decided by courts. These reports serve as published records of judicial decisions that are cited by lawyers and judges for their use as precedent in subsequent cases. Hi ...

; and has been analysed in modern times by J. G. A. Pocock in ''The Ancient Constitution and the Feudal Law'' (1st edition 1957; reissued "with a retrospect" 1987). This is not to be conflated with Bancroft-Prize-winner Mary Sarah Bilder's "transatlantic constitution."

Legal antiquarianism

The self-conscious

antiquarian An antiquarian or antiquary () is an aficionado or student of antiquities or things of the past. More specifically, the term is used for those who study history with particular attention to ancient artefacts, archaeological and historic si ...

study of the law gathered momentum from the 15th century. It supported the theories of the ancient constitution. In his ''

Institutes of the Lawes of England The ''Institutes of the Lawes of England'' are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. Widely recognized as a foundational document of the common law, they have been cit ...

'' Coke challenged the accepted view of the

Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Normans, Norman, French people, French, Flemish people, Flemish, and Bretons, Breton troops, all led by the Du ...

by asserting it amounted to trial by battle, with

William the Conqueror William the Conqueror (Bates ''William the Conqueror'' p. 33– 9 September 1087), sometimes called William the Bastard, was the first Norman king of England (as William I), reigning from 1066 until his death. A descendant of Rollo, he was D ...

agreeing to maintain the Anglo-Saxon laws.

Political role

In the reign of

Charles I of England Charles I (19 November 1600 – 30 January 1649) was King of Kingdom of England, England, Kingdom of Scotland, Scotland, and Kingdom of Ireland, Ireland from 27 March 1625 until Execution of Charles I, his execution in 1649. Charles was born ...

, reasoning based on the "ancient constitution" became available as a resistance theory for those who saw the monarch as high-handed. In its theoretical aspects, this type of reasoning is now seen as loaded with politics or ideology, rather than being the antiquarian study its proponents claimed for it. Coke's style of argument was inherently conservative, based as it was on defending a legal continuity claimed to be rooted in English governance from before 1066; but it is now argued that a radical variant was developed in the

English Civil War The English Civil War or Great Rebellion was a series of civil wars and political machinations between Cavaliers, Royalists and Roundhead, Parliamentarians in the Kingdom of England from 1642 to 1651. Part of the wider 1639 to 1653 Wars of th ...

period, by Nathaniel Bacon and

William Prynne William Prynne (1600 – 24 October 1669), an English lawyer, voluble author, polemicist and political figure, was a prominent Puritan opponent of church policy under William Laud, Archbishop of Canterbury (1633–1645). His views were Presbyter ...

in particular. During the

Exclusion Crisis The Exclusion Crisis ran from 1679 until 1681 in the reign of King Charles II of England, Scotland and Ireland. Three Exclusion Bills sought to exclude the King's brother and heir presumptive, James, Duke of York, from the thrones of England, ...

of the late 1670s and early 1680s, the theory of the ancient constitution was upheld by Whig writers such as William Petyt, Algernon Sidney and James Tyrrell. The Royalist writer Robert Brady criticised them in his ''Introduction to the Old English History'' (1694) and in the first volume of his ''History of England'' (1695). Following the studies of feudal history made by Henry Spelman and

William Dugdale Sir William Dugdale (12 September 1605 – 10 February 1686) was an English antiquary and herald. As a scholar he was influential in the development of medieval history as an academic subject. Life Dugdale was born at Shustoke, near Colesh ...

, Brady argued that

William I William I may refer to: Kings * William the Conqueror (–1087), also known as William I, King of England * William I of Sicily (died 1166) * William I of Scotland (died 1214), known as William the Lion * William I of the Netherlands and Luxembour ...

at the

had completely changed English law and had introduced feudal tenures. Whereas Petyt maintained that a class of freeholders had survived from Anglo-Saxon times despite the Norman Conquest, Brady argued that during the Middle Ages the population was entirely feudal, with no freeholders. During the 1730s the ancient constitution again became the subject of debate. The Tory politician Lord Bolingbroke sought to use the traditional Whig belief in the ancient constitution to criticise the Whig government of

Robert Walpole Robert Walpole, 1st Earl of Orford (; 26 August 1676 – 18 March 1745), known between 1725 and 1742 as Sir Robert Walpole, was a British Whigs (British political party), Whig statesman who is generally regarded as the ''de facto'' first Prim ...

. In his ''Remarks on the History of England'' (1730–31) and ''A Dissertation upon Parties'' (1733–34) Bolingbroke asserted that the freedoms bestowed on Englishmen by the ancient constitution were undermined by Walpole's corrupt government. The

Glorious Revolution The Glorious Revolution, also known as the Revolution of 1688, was the deposition of James II and VII, James II and VII in November 1688. He was replaced by his daughter Mary II, Mary II and her Dutch husband, William III of Orange ...

of 1688 had sought to restore the ancient constitution but (Bolingbroke argued) it had been betrayed by Walpole. Bolingbroke insisted that annual parliaments, the exclusion of placemen from parliament and a militia would save the ancient constitution from Walpole's corruption. Walpole's supporters in the press countered Bolingbroke by claiming that the ancient constitution was a fiction: Englishmen owed their freedom to the Revolution of 1688 and to the modern Whigs. In order to undermine Bolingbroke's criticisms, they used Brady's work to maintain that Englishmen in the Middle Ages had not been free. The Whig writer Lord Hervey, in his ''Ancient and Modern Liberty Stated and Compared'' (1734), argued that until the Revolution of 1688 there was no liberty in England. Receiving criticism from various sources, one of which included ''The Freeholders Grand Inquest touching our souveraigne Lord the King and his Parliament'' published by an anonymous sources in 1647 that forcefully refuted its relevant arguments, the antiquity of

was gradually out of fashion. In his 1762 work ''History of England'',

David Hume David Hume (; born David Home; – 25 August 1776) was a Scottish philosopher, historian, economist, and essayist who was best known for his highly influential system of empiricism, philosophical scepticism and metaphysical naturalism. Beg ...

drew upon Spelman, Dugdale and Brady and explained no one doubted early parliaments were composed of the king and his great barons, which reflected that modern idea of progress was replacing the doctrine of an ancient constitution. In his ''

Reflections on the Revolution in France ''Reflections on the Revolution in France'' is a political pamphlet written by the British statesman Edmund Burke and published in November 1790. It is fundamentally a contrast of the French Revolution to that time with the unwritten Constitutio ...

'' (1790), the Whig MP

Edmund Burke Edmund Burke (; 12 January ew Style, NS1729 – 9 July 1797) was an Anglo-Irish Politician, statesman, journalist, writer, literary critic, philosopher, and parliamentary orator who is regarded as the founder of the Social philosophy, soc ...

argued that the Revolution of 1688 was "made to preserve our ''antient'' indisputable laws and liberties ... We wished at the period of the Revolution, and do now wish, to derive all we possess as ''an inheritance from our forefathers''". Burke was unusual in reverting to the ancient constitution because by the time he was writing it was usually employed by the reformist intelligentsia. Pocock argues that the doctrine of the ancient constitution may have helped Burke "create his intense historical awareness of the common-law tradition as 'the stationary policy of this kingdom'—as a factor shaping English political thought and behaviour".J. G. A. Pocock, 'Burke and the Ancient Constitution—A Problem in the History of Ideas', ''The Historical Journal'', Vol. 3, No. 2 (1960), p. 143.

Legal antiquarianism

Political role

See also

Notes

Further reading