A series of essays exploring shifting interpretation of England’s ‘ancient constitution’ and Magna Carta, sweeping from Fortescue to Augustan England and colonial America, addressing the charter as emblematic of Saxon culture, original intent, rule of law and government by consent, and the source of executive power. Effectively premised on JGA Pocock’s

Ancient Constitution and Feudal Laws

, the contributors agree one’s views on such topics as the rights of subjects (e.g., trial by jury of peers) and limits of authority are relevant not only to jurisprudence but also the political conditions of liberty. Pocock had observed (among other things) that it was judicial process, rather than black-letter law, which was immemorial. Sandoz writes Fortescue and the common law grounded Coke’s opposition to the monarch. Holt observes Magna Charta was both a grant of liberties and a legislative act. Brooks writes, somewhat against the grain, that 16th-century lawyers were little concerned with constitutional theory and more interested in humanist (neoclassical) law. Christianson, sketching the skirmishing between early Stuarts (i.e., James I’s absolutism) and the Parliamentary opposition (Selden’s mixed monarchy, Hedley’s constitutional monarchy grounded in common law) which came to blows in the Five Knights case and provision of supply, essentially pitted rival views of the ancient constitution rather than absolutism vs constitutional government. Reid: 17th- and 18th-century lawyers thought the ancient constitution gave Parliament and common-law courts standing against arbitrary monarchy (which resonated with American revolutionaries). The common laws which had survived were the best evidence of English liberty. (Later, Burke held prescription the most solid of the titles to property, custom being the proof point of time time.) The merit of ancient constitution was security against government caprice – in an unwritten charter, no element was more essential to thwarting slavery to government. Reid adds: in this era, forensic historical work deployed the ancient constitution for proof of authority, establishment of consent, and bulwark against new government claims; in the latter century, the British chose government by consent (i.e., king in parliament) whereas the Americans settled on rule by law (following Coke, not a sovereign granting rights but a people delimiting executive power). The Saxon constitution represented liberty; the Norman charter arbitrary power; the Americans converted the dynamic to the notion of original intent. He asks why English lawyers, alone in Europe, sought to formalize understanding of rule of law – a matter now relevant to American originalists (vs progressivism) and Brexiteers (vs European Unionism).