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THE RADICAL FACE OF THE
ANCIENT CONSTITUTION
St. Edward's "Laws" in Early Modern Political Thought

Building upon the seminal work of J. C. Holt and J. G. A.


Pocock, this book deals with the ways in which medieval and
early modern historians, lawyers, and politicians deployed their
own national history to justify opposition to the English king-
ship. In particular, it is a study of the origins and development
of the historical construct known as the "radical ancient
constitution," a version of the past that originated in the
eleventh, twelfth, and thirteenth centuries from three sources of
conspicuous importance; the Modus tenendi Parliamentum, the
Mirror of Justices, and, most important of all, the so-called
"laws" of Edward the Confessor.
The book tells how a cult of kingship, centered around
Edward's "laws," was transformed from a cult that sacralized
the upstart Norman dynasty into one which desecrated the
Stuart monarchy. In telling the whole story of the "ancient
constitution" from the middle ages down to the eighteenth
century, the book also corrects two widely held assumptions
about Stuart England: first, that the so-called whig version of
history was concocted by seventeenth-century dissidents who
deliberately distorted medieval history in the service of their
own agendas; and, second, that argument from history was
inherently conservative, while argument from natural law and
natural rights was inherently radical. Finally, the author's
arguments serve as a corrective to revisionist histories that erase
"revolution" from the "century of revolution" and reduce the
role played by political principle in seventeenth-century
England.

JANELLE GREENBERG is Professor of History at the University


of Pittsburgh. Her previous publications include Subjects and
Sovereigns: the Grand Controversy over Legal Sovereignty in Stuart
England (1981, with Corinne C. Weston).
THE RADICAL FACE OF THE
ANCIENT CONSTITUTION

St. Edward's "Laws" in Early Modern Political Thought

JANELLE GREENBERG

CAMBRIDGE
UNIVERSITY PRESS
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo

Cambridge University Press


The Edinburgh Building, Cambridge CB2 2RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521791311

© Cambridge University Press 2001

This publication is in copyright. Subject to statutory exception


and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First published 2001


This digitally printed first paperback version 2006

A catalogue recordfor this publication is available from the British Library

ISBN-13 978-0-521-79131-1 hardback


ISBN-10 0-521-79131-6 hardback

ISBN-13 978-0-521 -02488-4 paperback


ISBN-10 0-521-02488-9 paperback
For Corinne Comstock Weston
The historical sense involves a perception, not only of the
pastness of the past, but of its presence.
T. S. Eliot, "Tradition and the Individual Talent," in The Sacred Wood.
Quoted by permission of Faber and Faber Ltd.
Contents

Acknowledgments page ix

1 Hagiography and historiography: the long shadow of


Edward the Confessor i
2 "Those most noble and equitable laws of St. Edward": from
the cult of the Confessor to the cult of the Confessor's laws 36
3 "Divers and sundry ancient histories and chronicles":
the articulation of the ancient constitution in the Tudor
period 79
4 "By lex terrae is meant the laws of St. Edward the
Confessor": the footprints of the Saxons in the early
seventeenth century 116
5 "You shall be king while you rule well": the radical
ancient constitution in the civil wars and interregnum 182
6 "That noble transcript of the original contract, the
Confessor's laws": the radical ancient constitution in the
late Stuart period 243

Bibliography 297
Index 335
Acknowledgments

I have had the good fortune of growing up in a department filled


with first-rate scholars and gentle colleagues, who over the years
have supported and sustained me in any number of ways. Successive
chairmen - the late Richard Hunt, Peter Karsten, Seymour
Drescher, Richard Smethurst, Edward Muller, and Reid Andrews -
have encouraged and prodded in equal measure, and I am genuinely
grateful to them. My friends and colleagues have also been ever
ready to serve as sounding boards and to read whatever I handed
them, responding with incisive and on-the-mark criticisms. I am
particularly grateful to Hugh Kearney, who always thought that this
project was worthwhile. He has played a major role in the develop-
ment of my career, and I am very fortunate indeed to have him as a
colleague and friend. I have also been lucky to have Pete Karsten
looking over my shoulder and nudging me forward. He has never let
me forget that I have something to contribute to our discipline.
In addition, I owe much to Amy Remensnyder, Fritz Ringer,
Bruce Venarde, Alison Stones, Paula Baker, and Evelyn Rawski. All
read chapters and some read numerous drafts, thereby saving me
from many an error. Marcus Rediker helped by providing infor-
mation and citations about St. Edward's cult in North America. I
am grateful to Peter Koehler, former Dean of the Faculty of Arts and
Sciences, who did whatever he could to facilitate my scholarly
efforts. In a special category is my good buddy Laura Marin, who sat
beside me in the British Library and the Bodleian Library at Oxford,
taking notes and then later poring over much of this manuscript.
Her keen editorial eye has improved every single page she read. She
also provided needed support and comfort along the way, as did my
good friends Mary and Fritz Ringer, Robert Marin, Bill Chase,
Maurine Greenwald, Akiko Hashimoto, Ann Jannetta, and Amy,
Bruce, Hugh, and Reid. Finally, those of us who work in the History
x Acknowledgments

Department at the University of Pittsburgh have the honor of


associating over the years with an excellent staff, in particular, Judy
Macy, Faye Schneider, and Grace Tomko. These smart, efficient,
and infinitely patient women make coming into work downright
pleasurable.
I owe a very special debt of gratitude to a special friend, Patricia
Goetz. Although not an historian, at least of the usual sort, she more
than anyone has helped me to understand (and accept) the insistence
with which the past impinges on the present. That I was able to
complete this work owes much to her own skill, fortitude, and
dedication.
Scholars and friends at other universities vastly improved the
quality of this book. James Burns and Annabel Patterson read the
entire manuscript twice, offering many valuable suggestions and
comments. Bruce O'Brien shared his knowledge of medieval legal
texts and thereby saved me from certain embarrassment in chapters
i and 2. Emily O'Brien, who is writing her doctoral dissertation on
Edward the Confessor at Oxford University, also commented on
chapters i and 2. Brian Simpson went to some length to tutor me
on the doctrine of prescription, and Paul Brand helped out in a
similar fashion. Melinda Zook brought her expertise on late Stuart
England to bear on the last chapters. I am also obliged to Johann
Sommerville and Daniel Woolf for helpful criticisms, as well as to
the two anonymous reviewers for Cambridge University Press.
Finally, along with everyone who works in this area, I stand on the
shoulders of James Burns, Michael Clanchy, James Holt, Hugh
Kearney, Annabel Patterson, John Pocock, Lois Schwoerer, Quentin
Skinner, and Corinne Weston. The remaining errors are, of course,
my own.
The kind efficiency of the staff at the University of Pittsburgh
Hillman Library eased my labors over the years, in particular,
Charles Aston and Ann Macleod. I am also grateful to the staff at
the British Library, especially the North Library and the Manuscript
Room, as well as to the librarians in the Cambridge University
Manuscripts Collection and Bodleian Library, Oxford University. I
must also thank the staff at Cambridge University Press, in particular
William Davies and Kay McKechnie, for their careful and close
attention to my manuscript. Mark Harvey, Assistant Serjeant at
Arms of the House of Commons, provided special assistance,
graciously escorting me through inaccessible areas of the Houses of
Acknowledgments xi

Parliament so that I could view paintings, drawings, and sculpture


related to my interests.
I received welcome financial aid from the National Endowment of
the Humanities, the American Philosophical Society, the Faculty of
Arts and Sciences at the University of Pittsburgh, the Nationality
Rooms fund, and the University's Center for West European
Studies. Without this support I could not have completed my
research. I am also grateful to my students Chris Kovac, Linda
Loewer, Mary Redd Magnotta, and Ben Reilly for favors along the
way.
My husband Martin helped out in ways far too numerous to
mention, serving over the years as my most enthusiastic cheerleader
and my best friend. He is always an inspiration, both scholarly and
otherwise. My children, Joshua, Rebecca, and Steven, also did their
part, reminding me, whether I liked it or not, that the living are
sometimes more interesting than the dead. On occasion my family,
to its everlasting credit, even indicated some slight interest in my
work, though I would not want to push this too far.
Finally, I want to acknowledge my debt to my good friend,
colleague, and mentor Corinne Comstock Weston. It was she who
first piqued my interest in English history and taught me to be an
historian. In a way, she is the co-author of everything that I write. I
dedicate this book to her with deep respect, abiding affection, and
lasting gratitude.

xi
CHAPTER I

Hagiography and historiography: the long shadow


of Edward the Confessor

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.l
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 Ill's
utter devotion to his patron saint. Indeed, Henry sponsored the
1
Nikolaus Pevsner, The Buildings of England. I. The Cities of London and Westminster, revised by
Bridget Cherry, 3rd. edn. (Harmondsworth, 1973), pp. 527-8. C. C. Pond, The Palace of
Westminster (Westminster, 1994), pp. 5-6. Robert Wilson, The Houses of Parliament (Norwich,
J
994)> P- 28.
2 The radical face of the ancient constitution

creation of a cult of kingship that revered the Confessor as a national


king and a great law-giver, the veritable symbol of a just and virtuous
ruler who brought peace to the realm. And he rebuilt Westminster
Abbey as the supreme tribute to St. Edward, after whom he named
his son and heir.
But what is less well appreciated is that St. Edward deserves a
place of highest honor in a room memorializing significant moments
in the history of parliament and its sometimes stormy relationship to
the crown. In fact, throughout the seventeenth century his was a
name frequently associated with opposition to the kingship and
forcefully evoked to support the idea of a monarchy limited by
parliament and the law. More than this. From the civil wars of the
1640s to the Glorious Revolution of 1689, St. Edward served as the
patron saint of dissidents who vigorously promoted the quintessential
radical causes of the century, including rebellion, deposition, even
regicide. Indeed, when all is said and done, St. Edward figures much
more prominently in the broad sweep of English history than the
better-known St. George.
In this book I will examine the transformation of the Confessor
from a medieval symbol that sacralized the kingship into an early
modern weapon that utterly defaced it. My study thus concerns the
making of a political ideology that loomed large in the seventeenth
century. But this book also deals with early modern historiography,
for St. Edward successfully lent himself to such radical usage
because he stood at the center of a credible and compelling historical
narrative that commanded the deepest respect in the seventeenth
century. This was the ancient constitution, within which lurked a
version of medieval history redolent with polemical possibilities of
the most radical sort.2

2
The modern authority on the ancient constitution is J. G. A. Pocock, The Ancient Constitution
and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century. A Reissue with a
Retrospect (Cambridge, 1987). Recently his work has been expanded by such scholars as Glenn
Burgess, The Politics of the Ancient Constitution. An Introduction to English Political Thought
(University Park, Pa., 1992); Paul Christianson, "Young John Selden and the Ancient
Constitution, ca. 1610-1618," Proceedings of the American Philosophical Society 128 (1984),
271-315; Paul Christianson, Discourse on History, Law, and Governance in the Public Career of John
Selden, 1610-1630 (Toronto, 1996); Corinne C. Weston, "England: Ancient Constitution and
C o m m o n Law," in Cambridge History of Political Thought, vol. 11 Medieval Political Thought,
1450-iyoo, ed. J. H. Burns and Mark Goldie (Cambridge, 1991), pp. 375-411; Johann P.
Sommerville, Politics and Ideology in England, 1603-1640 (London, 1986); William Klein, "The
Ancient Constitution Revisited," in Political Discourse in Early Modern Britain, ed. Nicholas
Phillipson and Quentin Skinner (Cambridge, 1993), pp. 23-44; Colin Kidd, British Identities
The long shadow of Edward the Confessor 3
While radical ancient constitutionalists — as I call those Stuart
dissidents who, beginning in the 1640s, pressed their medieval
history into the service of rebellion, deposition, and regicide —
exploited this version of the past, they did not themselves create it.3
They merely hijacked a rendition of their national past that
descended to them through the writings of medieval chroniclers
and Renaissance historians and antiquaries. Although first fully
articulated in Reformation England, an ancient constitution was in
place in the middle ages. Indeed, according to three eminent
modern scholars - J. C. Holt, R. W. Southern, and Patrick
Wormald - it could be found as early as the tenth, eleventh, and
twelfth centuries, its foundations laid by monks, monarchs, and
magnates who created it to enhance their own powers. Moreover,
in the middle ages it sometimes served much the same political
purpose as did the early modern version of the ancient constitution
during the century of revolution, that is, it was used to justify
resistance against the king.4 Importantly, this traditional ancient

Before Nationalism. Ethnicity and Nationhood in the Atlantic World, 1600-1800 (Cambridge, 1999),
chapters 4 and 5.
3
As used to describe seventeenth-century politics, the term "radical" is, of course,
anachronistic. In this book I employ the label to classify certain political ideas and actions,
in particular, those that aimed at destroying or using force against an established form of
government. In this understanding, making war against, deposing, and/or killing a ruler, as
well as justifications for the same, merit such a description. I also include under the label
"radical" arguments to the effect that a ruler who governed as a tyrant instead of a king
deposed himself, since in seventeenth-century England these almost always served as a
cover for rebellion, deposition, and regicide. On this understanding, supporters of
monarchical rule, for example, advocates of both the papal and imperial sides in the late
eleventh- and twelfth-century Investiture Controversy, as well as some sixteenth-century
Jesuits might well be called "radical." For further discussion of this issue see Melinda
Zook, Radical Whigs and Conspiratorial Politics in Late Stuart England (University Park, Pa.,
1999), p. xx; Gary De Krey, "Rethinking the Restoration: Dissenting Cases for Conscience,
1667-1672," Historical Journal 38 (1995), 53-83; J. C. Davis, "Radicalism in Traditional
Society: the Evaluation of Radical Thought in the English Commonwealth, 1649-1660,"
History of Political Thought 3 (1982), 193-213; and Conal Condren, The Language of Politics in
Seventeenth-Century England (New York, 1995), pp. 140—67. I am grateful to James Burns for
advice about this matter.
4
Holt, "The Origins of the Constitutional Tradition in England," in Magna Carta and Medieval
Government. Studies Presented to the International Commission for the Study of Parliamentary Estates
(London, 1985), pp. 1-22. Holt, "The St. Albans Chroniclers," in ibid., pp. 265-87,
especially 276. Holt, Magna Carta, 2nd. edn. (Cambridge, 1992), pp. 18-22 and passim.
Southern, "Aspects of the European Tradition of Historical Writing: 4. The Sense of the
Past," Transactions of the Royal Historical Society, 5th series, 23 (1973), 243-63, especially
pp. 246-56. Wormald, The Making of English Law: King Alfred to the Twelfth Century, vol. 1
Legislation and its Limits (Oxford, 1999), chapter 3 and passim. Unfortunately, Wormald's
magisterial work, which will set a new agenda for research, appeared too late for me to take
full advantage of its rich contents.
4 The radical face of the ancient constitution

constitutionalist narrative - as I term the historical construct before


its radicalization during the civil wars of the 1640s — enjoyed the
imprimatur of the greatest scholars of the Tudor and Stuart eras,
including William Lambarde, William Camden, John Selden, Sir
Henry Spelman, and Sir Roger Twysden. Their seal of approval
sanctioned a reading of the past that provided a firm foundation
for the most basic tenet of radical ancient constitutionalist theori-
zing, namely, the immemorial nature and continuity of English
political and legal institutions. In particular, the traditional narra-
tive taught that the governmental arrangements of the Stuart era
dated back at least as far as the Saxon period and perhaps even
earlier. Moreover, medieval and early modern writers identified the
traditional ancient constitution with St. Edward himself, whom
they considered the father of common law. Importantly, they
suggested that the Confessor declared this body of law in conjunc-
tion with a parliament that included at least the House of Lords
and perhaps the House of Commons as well. In this traditional
reading, an essentially Saxon constitution enjoyed an unbroken
continuity that extended from the early middle ages down to the
Stuart period. In other words, no deep and abiding fissure such as
a Norman conquest interrupted the flow of medieval and early
modern English history.
From this conventional narrative, radical ancient constitutional-
ists created a theory of government based on elective kingship, a
contractual relationship between ruler and ruled, and finally, a
right to resist, depose, and even kill a king who broke the terms of
his agreement with the people. In their version of the ancient
constitution, parliament stood at the center of government and
political society, its job to ride herd on over-mighty sovereigns. This
"whiggish" narrative of the past, both in its traditional and
radicalized versions, has been much attacked by many modern
scholars who see the Norman conquest as a cataclysmic event in
English history. In this view, William I abolished Saxon laws and
institutions and introduced others with a decidedly Norman flavor.
Moreover, neither common law nor parliament dated from the
Saxon period: common law came into existence in the late twelfth
and thirteenth centuries, while parliament originated in the late
thirteenth and fourteenth centuries and did not regularly include
the lower house until the late middle ages. Further, we now
understand that both the common law and parliament owed their
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