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Article Excerpt
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. (2) 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. (3) 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. (4) The newer, more theoretically engaged fields of intellectual, social, and most recently cultural history, boasting a greater level of engagement with social processes and cultural practices, have taken precedence as more "relevant" to the concerns of the current generation of students.
The reasons for constitutional history's decline are both complex and controversial, extending well beyond the field's common identification with sartorial ineptitude. In assessing the career of Sir Geoffrey Elton, one of constitutional history's greatest proponents in the later twentieth century, Quentin Skinner has suggested that the progressive dissolution of Britain's overseas empire had by the 1960s rendered Elton's professed concerns with the study of government passe and that the growth of social and intellectual history from that period forward, embodied in the work of Elton's "betes noires," Keith Thomas and Richard Southern, reflected a change of priorities to concerns more relevant in a post-imperial environment. (5) Richard Cosgrove, however, has related the decline of English constitutional history to a more complex set of intellectual developments within the British historical profession suggesting that the increasingly generalized attack on "Whiggery" in historical circles during the twentieth century gradually undermined the triumphal narrative of English constitutional history best exemplified in the pioneering work of William Stubbs in the 1870s. This intellectual trend combined with the loss of overseas empire, changing academic fashions, revulsion against "Germanic" or racialist explanations of constitutional origins, the growth of "new" British history, and the subsequent dissociation of English constitutional history from English national identity all contributed to the displacement of the traditional meta-narrative of the English constitution's organic growth and development from its once privileged place in the study of the British past. (6)
Rather than affix blame for the current state of constitutional history, the purpose here is to outline a novel approach to the study of the early modern constitution that will both re-orient and re-invigorate what has become increasingly and often unfairly stigmatized as a moribund field of inquiry. The medievalist Helen Cam once wrote that, "Constitutional history is concerned with the working of government; that is, with the interplay of forces. It is bound, therefore to take notice of the social and economic factors, which determine forces, as well as with the legal conventions which regulate the relation of the different parts of the constitution. Thus the constitutional historian has to keep his eye on all the other types of histories." (7) In keeping with this spirit, I will argue that the fields of social and cultural history, with their emphases on the material conditions of knowledge and the relationship of oral to written and print culture, today offer constitutional historians an exciting and important methodological resource for shedding new light on the constitutional controversies of early modern England. This is the case, in spite of these new fields' frequently avowed disdain for both political and constitutional history and the stubborn refusal of many of their leading practitioners to engage with more established scholarly discourses. The resulting synthesis will create a "New" constitutional history that will relate constitutional history's traditional concerns with the activity of government and the operation of the formal structures of government to the memorial and material conditions of knowledge in early modern England.
In the past, constitutional history has characterized the constitutional controversies of early modern England as jurisdictional conflicts between the formal structures of government and has framed its leading questions accordingly. For example, could the king collect Impositions, a Forced Loan, Tonnage and Poundage, or Ship Money without the involvement and consent of Parliament? Did the king have a prerogative power to imprison individuals who resisted such measures as the Forced Loan without warrant contrary to Magna Carta Chapter 29? Could the clergy assembled in Convocation make canons with the king's consent alone or did canons of the church also require the approval of Parliament? What powers of fining and imprisonment did the ecclesiastical courts and the Court of Star Chamber ordinarily enjoy? How did the formal structures of government, Crown, Parliament, the law courts, and the established church routinely interact with each other and with the population at large both at the center of government and in the localities? How did constitutional conflict and controversy develop from this interaction?
There has also been a traditional concern with the "British" and imperial dimensions of constitutional history, a development that poses a set of closely related questions: What was the legal relationship of the Stuart monarchy's three kingdoms and its emerging colonies abroad? How did the formal structures of government in the monarch's three kingdoms and other disparate possessions interact? For example, could a Scot such as Robert Calvin born after the accession of James VI of Scotland to the English throne as James I in 1603 hold suit for landed property in an English court even though Scotland continued to be governed by a law other than the common law of England? Did Calvin, as a Scot, owe his allegiance to the person of the king or only to the king's Scottish Crown? What was the status of the common law and Magna Carta in the king's realm of Ireland and did his subjects there enjoy the same legal rights as his subjects in England? Could martial law be invoked in Ireland under conditions differing from those in England? What was the legal status of the native Irish as opposed to the Anglo-Norman and New English populations? Did the king's Irish subjects, having exhausted all legal recourse in their own realm, enjoy a right to appeal their causes before the king's courts in England or the king himself? Many of the same questions might also be asked with regard to the newly founded colonies on the opposite shore of the Atlantic.
The New Constitutional History asks a different, yet closely related, set of questions, more epistemic in orientation. Early modern England did not, of course, have a written constitution and neither does the United Kingdom today, a set of circumstances that invites a significantly different set of questions than traditional constitutional history with its professed emphasis on the formal structures of government has customarily pursued: What were the sources and authorities of the constitution? What was their nature? Were they primarily written or oral? Who defined and controlled them? How were they reproduced and on whose authority? How were they communicated beyond the finite world of Westminster, to the localities, Ireland, and the emerging colonies abroad? How were they received and appropriated in these differing contexts? How did the sources of the constitution, the documentary and, on occasion, oral evidence of the prevailing constitutional order, undergird and inform the debates over the relative roles and functions of the formal structures of government in England, in the Tudor and Stuart monarchies' "other" kingdoms of Ireland and Scotland, and in their remaining disparate possessions both within Europe's western archipelago and on the other side of the Atlantic? How did the changing circumstances of the production, consumption, and dissemination of these sources of knowledge and power impinge on these controversies? How did historical actors appropriate these sources in the course of attempting to resolve these constitutional controversies? Were there definite patterns of appropriation and if so what were they? (8) In short, what can the "cultural turn" with its emphasis on the social production and consumption of knowledge--remembering, reading, writing, speaking, and printing--do for the constitutional history of early modern England?
II
The nature of constitutional controversy was very different in early modern England. The "constitution"--the inherited "assemblage of fundamental laws, institutions, and customs" that formed the sinews of the state--did not speak with a single authoritative voice but with a plurality of disparate voices. Unlike modern constitutions the constitution of early modern England did not derive from any self-consciously deliberative act of association between individual citizens "constituting" themselves as a sovereign entity; it was instead a complex, diverse, and multi-faceted inheritance of England's past that operated with the tacit consent of the governed. (9) Because there was no foundational act of association, there was no single comprehensive...
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