6. ‘More precious in your esteem than it deserveth’? Magna Carta and seventeenth-century politics*

Rachel Foxley

Magna Carta was born in a time of conflict in the thirteenth century, when King John’s overbearing rule was challenged by his barons. In the seventeenth century Magna Carta was drawn into another conflict between a king and his subjects: the English Civil War or English Revolution of the 1640s. King Charles I was not a tyrannical king in the way that King John was, but he was rather rigid in his approach to kingship, and he presided over three separate kingdoms (England, Scotland and Ireland) which were not easy to rule harmoniously, oversaw unpopular religious policies, and brought England into wars in the 1620s which placed a huge burden on the population. The resulting political tensions effectively brought about the breakdown of the English constitution. Under pressure from Scottish rebels, Charles called two English parliaments in 1640. His attempt to bolster his position in his largest kingdom backfired, as the Long Parliament which met in November 1640 exploited Charles’s weak position to prolong its own life and challenge the king’s unpopular counsellors and policies. In the autumn of 1641, rebellion broke out in Ireland as well. The king and the parliament both raised troops, but instead of sending them to suppress the Irish rising, they began a civil war in England. Parliament defeated the king in the English Civil Wars of 1642–6 and 1648. Charles was executed in 1649, and a failed experiment in republican government ensued before Charles II was able to reclaim his father’s throne in 1660.

But the civil wars were not just fought on the battlefield. The warring sides fought through print and propaganda too: ‘newsbooks’, the newspapers of the day, established themselves in English life permanently in the 1640s, and pamphlets also poured from the presses. In these media a battle of ideas was fought, and it was able to reach a broader audience than had ever had access to printed political news before. Both sides appealed to ordinary readers to support their cause in the civil war, and they needed justifications. Magna Carta was one of the authorities they called on in order to argue their case – both royalists and parliamentarians invoked its support for their preferred interpretations of the English constitution and the current conflict. These ways of appealing to a wide audience were put to a new use from 1646 when a group of radical parliamentarians – who later became known as the Levellers – started to propose a much more daring and innovative settlement for the kingdom than the parliamentarian leadership was prepared to countenance. The parliamentarians were a coalition – and a bitterly divided one. Most were still intent on restoring the king to the throne, albeit with conditions imposed on him. For them it was natural to invoke the ‘ancient constitution’, and the checks on royal power which measures such as Magna Carta embodied. The Levellers, by contrast, argued for a settlement based on a unicameral elected chamber exercizing the sovereignty of the people through its legislative power. This would be far from a return to the pre-civil-war status quo, and the Levellers’ arguments were often based on abstract ideas of natural rights rather than historical or legal precedent. However, even the Levellers looked backwards to Magna Carta. In the second part of this paper I will ask why that was, but first I will set out the background to the civil war use of Magna Carta by looking at the political conflicts of the 1620s and the contribution of the great common lawyer Sir Edward Coke.

Sir Edward Coke and Magna Carta before the civil war

Magna Carta had not held a prominent place in the political debate of the sixteenth century. One of the things Magna Carta did – in fact the first thing it did – was guarantee the liberties of the English Church. In the sixteenth century this was rather inconvenient to Henry VIII and his protestant successors who wrested the Church away from Rome and asserted their own royal authority over it. For this reason, among others, Magna Carta was not particularly prominent in political debate in the sixteenth century – it was not something that Protestants wanted to dwell on. But in the early seventeenth century Magna Carta came to be totemic in politics, something that almost everyone at the very least paid lip service to.

After the death of Elizabeth I in 1603, she was succeeded by her cousin James VI of Scotland, who now became James I of England. There must have been a collective sigh of relief that the Virgin Queen’s succession problem had been solved peacefully, in spite of her stubborn refusal to solve it herself. But having a Scottish king ruling England brought its own problems. James brought with him well-developed theories of royal power, and an outsider’s perspective on the idiosyncratic English legal system, the common law, which was not used in Scotland. A highly educated man who fancied himself as a political theorist, James had committed his views on monarchy to print in the Trew Law of Free Monarchies and Basilicon Doron, which were republished for the benefit of his new English subjects in 1603. He upheld an ideal of good kingship: because kings were divinely anointed, they were accountable directly to God for the virtue and benevolence of their rule. But they were accountable only to God, as their power came only and directly from him. It was unclear whether kings were subject to the law – but the implication seemed to be that they created it rather than obeyed it. As James told his subjects much later in his reign in a rather more informal work – a manuscript ‘libel’ which he wrote and circulated in response to an attack on royal policies in the same medium – ‘Kings doe make Lawes to bridle yow’.¹ Subjects wanting protection against the king might well appeal to Magna Carta, which seemed to them to guarantee that their laws, or at least their legal system, had independent status and were not at the mercy of the king. The lessons which James I himself drew from the story of Magna Carta were rather different:

The Charter which yow great doe call

Came first from Kings to stay your fall ...

James had been willing to admit in a 1610 speech to parliament that in ‘settled kingdoms’ subjects were protected by laws graciously granted by former kings. As his poem suggests, Magna Carta was one of these, but its ‘overbold’ promoters had been seeking their own greatness.² As Paul Christianson suggests, James may have made considerable efforts to come to terms with the common law tradition which was part of the kingdom he inherited in 1603. However, some of his words could be read differently, even if they were now in the past; and James was still bold enough to suggest reform to the common law. In addition, James had hoped to unite England and Scotland into a single kingdom – which again might pose a threat to England’s legal system. A resurgence of interest in the distinctive character of England’s customary system of common law was a natural response to the early years of his reign.³

However, it was in the reign of Charles I that Magna Carta took on even greater importance. Charles inherited the throne in 1625 and responded to popular pressure in entering into the military conflicts on the continent, going to war against Spain and also France. Parliaments were frequent in the 1620s, and Charles hoped to work harmoniously with them – he had sat in the house of lords as prince of Wales. However, the disastrous progress and financial burden of the wars exacerbated existing tensions instead of uniting the country. Historians no longer see the early seventeenth century as a ‘high road to civil war’: the vast amount of scholarship produced by revisionist historians including Conrad Russell and Kevin Sharpe subjected the view that the civil war formed part of an inevitable social and political process to sharp scrutiny, and demonstrated that civil war in England was far from inevitable.⁴ However, post-revisionist historians challenged the revisionists’ picture of a culture of consensus in early Stuart politics. It is now clear that pre-civil-war England, particularly in the 1620s, experienced political conflict which was more ideological and less contingent than revisionist historians were prepared to admit.⁵

War in Europe put huge pressures on the English state. The parliaments which were called in the 1620s, partly in order to vote money for English military efforts, were a forum for some of the political conflicts which resulted. In response to war and to criticism in parliament, the government took actions which seemed to its critics to overstep the boundaries of the royal prerogative. Could the king, for example, rightfully raise money without consent in parliament, as he attempted to do in the Forced Loan of 1626? This move was met by significant and increasingly orchestrated opposition, and the government responded punitively in some high-profile cases. The imprisonment of some non-payers without cause shown provoked the Five Knights’ Case, which again raised difficult questions about the limits of the king’s prerogative and gave those critical of the government cause to look back into English legal history for broader reassurances.

Magna Carta offered the members of parliament who were critical of these royal expedients one rhetorical tool that they could use as they tried to define, reinforce, or even tighten the limits of royal power. Magna Carta was useful for various reasons. It was a precedent for limits being placed on kings, had been confirmed by numerous monarchs, and had become the first statute included in collections of the laws of England – although the version which had become standard was that reissued in 1225 under Henry III, not the original 1215 version. The famous chapters on justice – in 1225 amalgamated into chapter 29 – offered protection against arbitrary imprisonment and other punishment without due process. In the context of the Five Knights’ Case such a venerable precedent was welcome. The requirement of the original 1215 Magna Carta that ‘No scutage or aid is to be imposed in our kingdom except by the common counsel of our kingdom’ did not survive into the 1225 version, but the parliamentarians of the 1620s could cite Edward I’s later statute ‘De tallagio non concedendo’ to the same effect. Taxes had to be approved in parliament, and these thirteenth-century laws confirmed it.

Sir Edward Coke was a leading figure in the political use of Magna Carta in the parliaments of the 1620s, and his interpretation of the charter was published after his death by the Long Parliament on the eve of the civil war. Coke exemplifies the way in which the English common law legal system (different from the Roman law system widely used in other parts of Europe and in Scotland) became central to politics in England. Coke was both an extremely eminent common lawyer, and an increasingly troublesome politician and member of parliament towards the end of his life in the 1620s.⁶ His legal career was stellar: he had risen to be attorney general, chief justice of common pleas and then chief justice of king’s bench. His influence on legal thought went far beyond his own practice, however, as he made large amounts of case-law accessible through his volumes of Reports, which also offered interpretations of English law and history. Coke’s lengthy period of eminence was not untroubled: he was dismissed from the bench in 1616, and suspended from the privy council, but although he could be stubborn on points of principle, he was far from a consistent critic of the king. David Chan Smith has argued that in fact Coke saw the common law as working harmoniously with the royal prerogative, and believed that necessary legal reforms would serve to strengthen rather than weaken royal authority.⁷ It was towards the end of his long career that Coke became a key critic of royal policy. He did not return to the judiciary after 1616, and became more prominent as a political than a judicial figure, particularly as an M.P. in the parliaments of the 1620s. His actions led to imprisonment in 1621–2 and to attempts – unsuccessful in 1624, successful in 1626 – to prevent him sitting in parliament.⁸ However, he sat in most of the parliaments of the 1620s and his critique of royal policy – and use of Magna Carta in this cause – culminated in the creation of the Petition of Right in 1628.

Coke’s thought has been given great prominence by some historians, particularly those who see the common law as providing a ‘language’ which structured political thought and discourse in early Stuart England. Coke was the archetypal example of the early Stuart ‘common law mind’ identified by J. G. A. Pocock, and also figures largely in Alan Cromartie’s more recent argument for a ‘constitutionalist revolution’, based on common law, which led into the English Revolution of the mid century.⁹ These interpretations see the politics of the early seventeenth century as framed by and often argued through the language and resources of the common law tradition, and Coke as a key lawyer-politician takes on a prominent role in such arguments. Coke’s vision was of an ‘ancient constitution’ framed by the continuous practice of the common law, and ultimately bounded only by the reason inherent in that law. The common law, in Coke’s view, was competent to adjudicate on the powers of government and set limits to the king’s prerogative.¹⁰ For Coke the ancient constitution, the common law, and even parliament, stretched back before the Norman Conquest; and since the Conquest, kings had sworn to obey the laws. Kingship thus existed within the framework of common law, rather than pre-existing or presiding over it. This made the law a crucially important political tool, especially in the hands of an apparently authoritative interpreter, such as Coke in the 1620s. Coke became more and more concerned to assert the law’s control over, or at least bounding of, royal prerogative,¹¹ and Magna Carta was one exhibit in that argument: he famously declared that ‘Magna Carta is such a fellow that he will have no sovereign’.¹² His parliamentary activities culminated in his role in the creation of the Petition of Right in 1628. The Petition invoked the Magna Carta of 1225 and other ancient statutes, including those confirming it, to assert the need for due legal process and protest against the recent use of imprisonment without cause shown.¹³ The Petition of Right may have taken aim at specific grievances of the war years of the 1620s, but by placing them within the framework of the common law, and asserting that these rights were pre-existent independently of the grace of the monarch, it became a broader assertion of the rule of the law and the ancient constitution. The Petition of Right itself thus duly took its place in the pantheon of constitutional protections alongside Magna Carta for many civil war parliamentarians.

Scholars such as Christianson have rightly warned against seeing Coke as typical, and against seeing the common law as a field whose practitioners held uniform and uncritical views.¹⁴ But if not typical, Coke was nonetheless influential, not least on the Leveller authors of the civil war period. Coke’s distinctive shaping of the common law tradition, and his interpretation of Magna Carta’s place in it, meant that Magna Carta and the materials of the common law were still surprisingly fertile for civil war radicals. For Coke, the common law was remarkably malleable. It was interpreted by the artificial ‘reason’ of common lawyers – a professional expertise which Coke was keen to guard, but which more radical followers would later blur into a more generalized ‘reason’. Coke’s own interpretations of legal texts sometimes had a noticeable political spin, often achieved by expanding the application of terms within the texts. He might even coin new ‘maxims’ rather than relying on those traditionally used to interpret the law.¹⁵ The Institutes of the Laws of England, written in the turbulent 1620s, bequeathed these tendentious interpretations for use by the civil war parliamentarians, in spite of the seizure of Coke’s papers on Charles I’s orders before Coke’s death in 1634. It was the rebellious parliament which ensured that the remaining parts of Coke’s Institutes were finally recovered and published. The second part of the Institutes, in which Coke’s text and commentary on Magna Carta took pride of place at the very beginning of the book, was issued by the authority of parliament in 1642. Magna Carta, and Coke’s interpretation of it, was thus published in support of the parliamentarian cause.

On one level, it is hard to see what Magna Carta had to offer to the parliamentarian thinkers of the English Civil War. Magna Carta is a compendious and various document, and many of its provisions, from fish weirs to wine measures, were very particular and specific to their time. Perhaps its most striking provision is the startling ‘security clause’ (clause 61 in the standard numbering) which constituted a corporate body of twenty-five named barons ‘with the commune of all the land’ to police the keeping of Magna Carta through force. Out of the whole of Magna Carta, the security clause ought to have been the most relevant to the English Civil War parliamentarians and even the radical Levellers. The key themes of parliamentarian political thought were precisely these issues: the procedures by which the king could be resisted, and the authority which was necessary for any bodies to undertake this political resistance. The Levellers had taken parliamentarian thought a step further, arguing not only that parliament could resist the king, but also that the people could resist a misbehaving parliament. And yet the security clause, like the vast majority of the provisions of Magna Carta, was not a feature of civil war propaganda, and makes no appearance at all in the Levellers’ writings, for one very simple reason. Magna Carta, as published in Coke’s Institutes, was not the Magna Carta of 1215; it was Henry III’s reissued Great Charter of 1225, which had become the standard version of the text by the end of the thirteenth century. So, although Magna Carta came with associations of resistance and holding a king to account, Coke’s widely cited text from 1225 did not lay out a system for limiting the king and policing his actions as the 1215 version had done.

Nevertheless, Coke still credited Magna Carta with immense power. He explained its title as the ‘Great Charter’ with a suitably hyperbolical comparison to Alexander the Great, who, he said, was called great ‘not in respect of the largenesse of his body, for he was a little man, but in respect of the greatnesse of his heroicall spirit’.¹⁶ Coke inflated Magna Carta’s ‘heroicall spirit’ in an interpretation which laboured to derive broad principles from the Charter’s apparently quite specific and historically contingent provisions. The most resonant chapter of Magna Carta, in the seventeenth century as now, was chapter 29 – in the 1225 version – which dealt with fair judicial procedures against individuals. This famously promised that no free man would be disseized of his ‘liberties’. Coke elaborated enthusiastically on the several ‘significations’ of the term ‘liberties’, broadening the meaning of term far beyond particular legal entitlements. In one of those ‘significations’, ‘liberties’ simply meant ‘the laws of the realme’.¹⁷ Thus the liberties of the free man were expanded to include both specific liberties never thought of by the framers of Magna Carta (such as freedom from monopolies¹⁸), and the laws of the land themselves. This is why Coke could argue that Magna Carta ‘made people free’ (‘liberos facit’) and could be described as the charter of the liberties of the realm or even just as ‘common freedom’ (‘communis libertas’).¹⁹ What was more, Magna Carta lay firmly within the resilient but flexible fabric of the customary common law of England: ‘for the most part’ it was ‘declaratory of the principall grounds of the Fundamental Laws of England’, and it was ‘no new declaration’ in 1225 as King John had previously declared the like. Magna Carta reached back beyond 1225 and even (implicitly) beyond 1215, and when kings, like Edward I, later confirmed it they were not making new law but just confirming that it ‘should be taken as the Common Law’. Kings who thought better of having granted Magna Carta and attempted to cancel it were thus committing a category error: no king could cancel ‘the ancient Common Law of England’. For Coke, that common law extended back before the Norman Conquest, and kings since the Conquest were still ‘bound and sworn’ to obey it.²⁰ Coke’s interpretation of Magna Carta had woven new potential into the living fabric of the common law.

The Levellers, Coke and Magna Carta

Parliament fought a civil war against Charles I, and by 1646 it had won. It was in this year that the Leveller leaders began to work together as a group to push for a political settlement which fulfilled radical aims, both in religion and in politics. The Levellers were committed and enthusiastic parliamentarians, but they were at the radical end of a spectrum of views within the parliamentarian coalition. This coalition had already been fracturing during the fighting of the war, but in victory – with the task of trying to conclude a settlement with the defeated king – the divisions became even more evident. There were major differences among parliamentarians about whether to enforce membership of a reshaped national church, and about how extensive restrictions on the restored king’s power should be. In the end, the army blocked a moderate settlement by purging parliament, leaving the more radical M.P.s to vote for the trial of the king. Charles I was tried and executed in January 1649.

The Levellers had certainly played a part in the radicalization of parliamentarian thought, denouncing regal tyranny and opening up the possibility of parliamentary rule without a king. They had taken parliament’s justifications for leading resistance against the king – the idea that parliament represented the people and that politics was based on the consent of the ruled – and extended them. They wanted a much wider section of the adult male population to be actively represented in parliament, and they wanted parliament to be accountable to its electors. Thus as well as opposing the tyranny of kings, the Levellers opposed the potential tyranny of parliament itself. They had, like much of the population, been increasingly disillusioned by the behaviour of the Long Parliament, which had had to use methods as unpopular as those of the king in order to fund its war effort and run the country in the aftermath of war. The Leveller leaders, in addition, had particular reason to fear parliamentary ‘tyranny’ as two of them, John Lilburne and Richard Overton, experienced imprisonment on political grounds under parliamentary rule, even before the watershed of the regicide left the Levellers as major critics of the ‘new chains’ imposed on the nation by the new republican regime.

At first glance, it would seem that the Levellers’ attitude to law, history and Magna Carta would be completely different from Sir Edward Coke’s. The key leaders and pamphleteers of the Leveller movement were collaborating from 1645, and from 1647–9 the movement was at its peak. The fundamental basis of the Levellers’ thought was the political equality of (adult, male) Englishmen, and the fact that there were certain rights and liberties which these citizens could not be stripped of and could always exercise. All political power, ultimately, had to derive from these ‘free-born Englishmen’, and all political authorities had to recognize that and be accountable to the people. For that reason, the Levellers’ ideal constitution would look rather different from the institutions in place before the civil war: there would be a single-chamber elected ‘Representative’ instead of the two-chamber parliament of lords and commons; there might not even be a king or a house of lords. Certainly neither king nor lords would have a veto on legislation; any king would have to be a mere executive officer. In their tract Regal Tyranny Discovered in January 1647 the (anonymous) Leveller authors railed not just against the monarchy of Charles I but against monarchy itself, and particularly all the kings since the Norman Conquest.

Figure 6.1. John Lilburne reading from Coke's Institutes at his trial for treason (British Library shelfmark C.37.d.51.(5.)).

On what grounds did the Levellers argue for such radical changes? Natural law theory offered one kind of justification. This emphasized people’s original liberty and equality in the ‘state of nature’ and the contracts which they had made. On this view, at some point in the distant past the people had handed over some of their rights, at least conditionally, in return for the security provided by government. The Levellers certainly made use of this type of theory, although they emphasized that aspects of people’s original liberty and equality persisted even in modern society, and that consent to government had not just happened in the distant past, but was also expressed through elections to the parliament or representative. The Levellers’ proposals for far-reaching constitutional reform, and the theory of natural law which they sometimes used to justify them, seem strikingly modern – a long way from Coke’s nostalgic appreciation of Magna Carta as part of an unbroken ‘ancient constitution’. We might expect the Levellers to see arguments for the ancient constitution, and a reliance on Magna Carta, as rather inadequate to the serious task of reform which they thought was necessary.

Moreover, William Walwyn, one of the three most important Leveller leaders and thinkers, expressed exactly the kind of views of Magna Carta which we might expect. Just at the moment when the Leveller leaders were beginning to encounter each other and work together, Walwyn argued with his new acquaintance John Lilburne over the significance of the charter. Lilburne, imprisoned, and making the most of his martyrdom as he always did, was in 1645 wholeheartedly appealing to Magna Carta, apparently declaring grandly in a speech to the Committee of Examinations: ‘Sir, the Privileges contained herein is my Birth-right and Inheritance’.²¹ Walwyn, a man of wider intellectual horizons than Lilburne, found Lilburne’s perspective problematic, and issued a famous rebuke to him, in a work of October 1645 called Englands Lamentable Slaverie. This was written as a letter to Lilburne and published in support of Lilburne’s case. In it, Walwyn said that Magna Carta was ‘but a part of the peoples rights and liberties’ and was so narrow in its provisions for freedom that it was only ‘deceitfully and improperlie Called Magna Charta, (indeed so called to blind the people)’. For Walwyn, Magna Carta was a small set of concessions ‘wrestled out of the pawes of’ (Norman) conquerors; indeed it was ‘so little as lesse could not be granted with any pretence of freedom’. So much for it being the ‘Great’ Charter. For Walwyn at this time, Magna Carta was merely a concession on the part of kings. Not only had it been granted by kings, but both they and parliaments had subsequently done much to abbreviate the liberties contained in it: Walwyn clearly did not feel that Magna Carta in the present had much legal protection to offer. Even so, when danger appeared, these hypocritical parliaments could look no further than Magna Carta, ‘calling that messe of pottage their birthright, the great inheritance of the people, the great Charter of England’. And of course, Walwyn was not just accusing parliaments of treating Magna Carta with too much reverence: he then addressed Lilburne directly, saying ‘Magna Charta hath been more precious in your esteeme then it deserveth’. He even urged that instead of fetishizing Magna Carta, parliament should legislate afresh: he complained that parliament, ‘when they might have made a newer and better Charter, have falne to patching the old’.²² This startling proposal for a completely new Magna Carta seems like another proof of Walwyn’s willingness to abandon history for measures based purely on reason and current necessities. It was probably Walwyn who continued to criticize Magna Carta the following year, castigating it as ‘but a beggerly thing, containing many marks of intollerable bondage’ and arguing that the only guide for any government should be ‘equity and right reason’.²³

Lilburne initially seemed sensitive to Walwyn’s critique, offering a commentary on how he viewed Magna Carta and English history in his pamphlet The Iust Mans Justification the next summer. But even there, he did not completely concede Walwyn’s points – although he went some way towards it – and he continued to appeal to Magna Carta. In 1647 he even issued a substantial pamphlet which summarized Magna Carta and other key statutes ‘for the instruction, information and benefit of all true-hearted Englishmen’.²⁴ He clearly still thought it had something to offer. Out of the three Leveller leaders, Lilburne was the most inclined to make use of legal language and arguments. However, the third major Leveller writer, Richard Overton, who was responsible for some of the Levellers’ most resounding statements of natural law theory, also rhapsodized about Magna Carta. Indeed, on one occasion in November 1646 he claims to have defended his copy of it physically, while being recommitted to prison in Newgate after an unsuccessful hearing before a committee of the house of commons. When his gaoler attempted to seize the book – which was of course the second volume of Coke’s Institutes – Overton

replyed, that he should not, if to the utmost of my power I could preserve it from him, and I would do my utmost, where upon I clapped it in my Armes, and I laid myself on my belly, but by force, they violently turned me upon my back then Briscoe (just as if he had been staving off a Dog from the Beare) smote me with his fist, to make me let go my hold, whereupon as loud as I could, I cryed out, murther, murther, murther. And thus by an assault they got the great Charter of Englands Liberties and Freedoms from me; which I laboured to the utmost power in me, to preserve and defend, and ever to the death shall maintain, and forthwith without any Warrant poore Magna Charta was clapt up close prisoner in Newgate, and my poore fellow prisoner de[p]rived of the comfortable visitation of friends: And thus [I was] stript of my armour of proofe, the Charter of my legall Rights, Freedomes and Liberties …²⁵

That story of Overton’s gives us one of the reasons why the Levellers continued to appeal to Magna Carta: it was useful as a proof-text for the legally self-taught but rhetorically skilful Leveller leaders when they found themselves – as Lilburne especially often did – in prison. The fact that their prolonged imprisonments were initially on the order of the house of lords, and did not lead to trials at common law, meant that the provisions of Magna Carta could be a real help to their case. The Levellers were interested in very few of the specific provisions of the Great Charter. They focused overwhelmingly on chapter 29 of the 1225 charter (a chapter to which Coke had devoted a full twelve pages of his seventy-eight-page commentary). This chapter combined the famous provisions of chapters 39–40 of the original 1215 charter, and thus gave protection to every ‘liber homo’, free person or free man, against punishment in person or property inflicted by the state ‘except by the lawful judgement of his peers or the law of the land’. These provisions – especially combined with Coke’s glosses on them – were directly useful to the imprisoned Levellers. Overton, for example, transcribed Coke’s commentary exactly when he insisted that any judgement leading to imprisonment must be made by a man’s peers or equals – ‘that is men of his own condition’. Similarly, ‘the law of the land’ was glossed so that it referred not just to the laws which subjects might be judged for transgressing, but to the whole legal mechanism of due process. Coke made this point emphatically, and again Overton transcribed it exactly: ‘by the law of the land (that is, to speak it once for all) by the due course, and processe of law’.²⁶ For Lilburne – following Coke – Magna Carta guaranteed law, justice and right – ‘the best Birth-right the Subject hath’.²⁷ Lilburne also frequently specifically cited chapter 29 of the 1225 charter, and material from Coke both on the significance of that chapter and on the importance and meaning of judgement by one’s peers.²⁸ Even in his pamphlet The Peoples Prerogative, which proclaimed prominently on its title page that it was ‘a collection of the Marrow and Soule of Magna Charta’ (Magna Carta was evidently a big ‘seller’ in the 1640s as now), he actually began the pamphlet not with Magna Carta itself but with the Petition of Right; and when he moved on to Magna Carta he introduced only four chapters: 14, 26, 28 and 29, which dealt again with Lilburne’s characteristic concerns of judgement by one’s peers, the need for witnesses, and due process of law. In fact, in a pamphlet which had ‘Magna Carta’ emblazoned very prominently on its title page, he spent less than a page on Magna Carta before moving on to the liberties guaranteed by more recent statutes.²⁹

But beyond this practical use of Magna Carta, there were deeper reasons why the Levellers, even after Walwyn’s compelling and fundamentally historically accurate critique of the imposition of Norman law and custom, still returned to the language of law and to Magna Carta, that concession offered by Norman kings. Magna Carta, particularly as interpreted by Coke, came to represent ‘the liberties of England’, and in spite of the Levellers’ vitriol against the Norman kings, the implication that these liberties were still guaranteed by a continuing web of law and English rights was enormously useful. As Martin Dzelzainis has pointed out, the Levellers’ appeals to common law have to be seen in the light of the Long Parliament’s reputation and thought in the 1640s. As parliament lost its claim to be the defender of the law, and some of its propagandists moved towards accepting a kind of parliamentary absolutism, the Levellers moved in the opposite direction, invoking Magna Carta as a defence of the people’s rights against their parliament as well as against their king.³⁰ And while we tend to separate out the ‘languages of political thought’ used in civil war argument, at the time they were cheerfully combined by many authors, and particularly by Lilburne. Lilburne did use the language of the law, but he used it very creatively. He talked about ‘liberties’, ‘franchises’, ‘privileges’ and ‘immunities’ – specific entitlements which people enjoyed because of specific grants made to them or because of the particular status or office which they held. But Lilburne used these terms in a way which changed their inherited legal meaning in a fundamental way. For him, all ‘free-born Englishmen’ enjoyed the same collection of liberties and rights, simply through being born in England. (The non-free status of villeinage was no longer in existence, and when Lilburne and others talked of ‘freeborn Englishmen’ it was to emphasize the fact that all Englishmen were free.³¹) The Leveller belief in extensive political equality, which transcended many (though not all) kinds of social inequality, thus resulted in a vision of equal liberties and rights which Englishmen enjoyed. Lilburne had used the materials of the law to create a kind of citizenship. Thus Lilburne used the language of the law to construct an account of the (legal) liberties of the ‘free-born Englishman’ which converged with the Leveller writers’ account of the liberties accorded to all men by natural law. Lilburne was capable of appealing to ‘national and natural, rational and legal’ laws in one breath. The radicalism of the Levellers clearly did not lie in a rejection of history and law. Rather, it lay in a fascinating synthesis of legal and historical thought with the abstract principles of natural law.³²

I want to conclude with a final speculation about the place of Magna Carta in the Levellers’ thought. The Levellers embodied many of their demands in petitions, but also adopted the idea of an ‘Agreement of the People’, a document outlining the powers of the parliament and the people which would be subscribed by the people of England to legitimize it as a settlement. This idea did not originate directly from the Leveller movement, and was not confined to it either: a series of proposals for an ‘Agreement of the People’ was produced by army radicals, Levellers and army officers. Those conventionally called the first and third Agreements of the People (October/November 1647 and May 1649) were the work of radicals; the second Agreement (December/January 1648–9) was the contested product of negotiations between radicals and the army leadership in the period between the army’s purging of parliament and the trial of Charles I. The first ‘Agreement of the People’ in 1647 was produced for the Putney Debates by army radicals and displays a mixture of Leveller and army concerns.³³ It was an audaciously simple document, which proposed that the nation was to be ruled by a succession of frequently reelected parliaments or ‘Representatives’, whose power was to be ‘inferior only to theirs who chose them’. These parliaments were to hold many of the marks of sovereignty previously seen as belonging to the king’s prerogative, but the people reserved certain powers to themselves. Thus the parliament could not make laws to bind people to particular forms of worship, or any law which was against the good of the people and no-one was to be exempt from the law because of any particular status or privilege they enjoyed.

The device of an Agreement subscribed by the people has seemed to place the Levellers and their radical allies in the army who produced the first Agreement firmly in the natural law tradition. Several historians have interpreted the Agreement of the People itself as a new ‘social contract’;³⁴ perhaps this was what Walwyn had meant when he argued in favour of making a ‘new Charter’ instead of continuing to patch up the inadequate Magna Carta. However, the first two Agreements of the People do not actually cut themselves off from history in quite such a simple way. As Alan Orr has argued, the Agreements can be read as vindications of existing right, in the tradition of medieval constitutionalism, rather than as documents creating new rights.³⁵ The short conclusion to the first Agreement’s text clarified the position of the Agreement in English constitutional history: the authors were determined to vindicate their rights, inspired by the example of ‘our Ancestors, whose bloud was often spent in vain for the recovery of their Freedomes, suffering themselves, through fradulent [sic] accommodations, to be still deluded of the fruit of their Victories’. The same was not to happen this time round. The ancient cycle of assertion and suppression of these ‘native Rights’ was finally to come to an end with a definitive, unalterable codification.³⁶ The Agreement was thus conceived of as momentous, but it placed itself within the nation’s history rather than cutting itself off from it. Like Magna Carta, the Agreement, once agreed by the population, could not be changed by parliament; it would be a fundamental law. That fundamental law, however, was designed to confirm and protect the existing ‘native rights’ of the English people. Some of those fundamental rights were still to be found in Magna Carta too. I suggest that the Agreement of the People was thus a tribute and a successor to Magna Carta, rather than simply a replacement.

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* I am very grateful for the opportunity to speak at Peking University at the Anglo-Chinese Conference of Historians on Magna Carta in September 2015, and would like to thank all the organizers and hosts for their warm welcome, hospitality and discussion.

¹ James I, ‘The wiper of the people’s tears’ (late 1622/1623), a libel in response to a libel called ‘The comons tears’, line 114 <http://www.earlystuartlibels.net/htdocs/spanish_match_section/Nvi1.html> [accessed 12 Dec. 2016]

² James I, ‘The wiper of the people’s tears’, lines 118–125.

³ For a more detailed account of these issues, and James’s changing positions, see P. Christianson, ‘Ancient constitutions in the age of Sir Edward Coke and John Selden’, in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, ed. E. Sandoz (Columbia and London, 1993), pp. 89–146.

⁴ C. Russell, Parliaments and English Politics, 1621–1629 (Oxford, 1979); C. Russell, The Causes of the English Civil War (Oxford, 1990); C. Russell, The Fall of the British Monarchies 1637–1642 (Oxford, 1991); K. Sharpe, The Personal Rule of Charles I (New Haven, Conn., 1992).

⁵ For an influential set of post-revisionist essays emphasizing conflict in pre-civil-war politics, see Conflict in Early Stuart England: Studies in Religion and Politics 1603–1642, ed. R. Cust and A. Hughes (Harlow, 1989). Further studies emphasizing the conflicts involved in politics, particularly in the parliaments of the 1620s, are R. Cust, The Forced Loan and English Politics 1626–1628 (Oxford, 1987); T. Cogswell, The Blessed Revolution: English Politics and the Coming of War (Cambridge, 1989); L. J. Reeve, Charles I and the Road to Personal Rule (Cambridge, 1989). On conflicts of ideology as well as conflict in practical politics, see J. P. Sommerville, Royalists and Patriots: Politics and Ideology in England 1603–1640 (1999), but contrast the revisionist view provided by G. Burgess, The Politics of the Ancient Constitution: an Introduction to English Political Thought 1600–1642 (Basingstoke, 1992).

⁶ For narrative analyses of Coke’s career, see S. D. White, Sir Edward Coke and the Grievances of the Commonwealth (Manchester, 1979); A. D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Calif., 2003); D. Chan Smith, Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge, 2014).

⁷ Chan Smith, Sir Edward Coke.

⁸ Coke was imprisoned for asserting parliament’s right to debate all matters of concern to the commonwealth in the debate over freedom of speech, foreign policy, and Charles I’s marriage in the 1621 parliament. Plans to send him to Ireland to prevent him sitting in 1624 failed; but in 1626 he was pricked as a sheriff, which prevented him from sitting in parliament.

⁹ 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); A. Cromartie, The Constitutionalist Revolution: an Essay on the History of England, 1450–1642 (Cambridge, 2006).

¹⁰ A. Cromartie, ‘The constitutionalist revolution: the transformation of political culture in early Stuart England’, Past & Present, clxiii (1999), 76–120, at pp. 87–8, 100; G. Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, Conn., 1996), pp. 166–71.

¹¹ Burgess, Absolute Monarchy, pp. 200–1; White, Sir Edward Coke, pp. 219ff; Cromartie, The Constitutionalist Revolution, pp. 213–6.

¹² A. D. Boyer, ‘Coke, Sir Edward (1552–1634)’, Oxford Dictionary of National Biography (Oxford, 2004); online edn, Jan 2009 <https://doi.org/10.1093/ref:odnb/5826> [accessed 12 Dec. 2016].

¹³ White, Sir Edward Coke, pp. 238–42.

¹⁴ P. Christianson, ‘Ancient constitutions’, pp. 108–15, 145.

¹⁵ C. Hill, Intellectual Origins of the English Revolution Revisited (Oxford, 1997), pp. 224–5; White, Sir Edward Coke, p. 226; Pocock, The Ancient Constitution, p. 268; A. Cromartie, Sir Matthew Hale (Cambridge, 1995), p. 19; J. W. Tubbs, The Common Law Mind (Baltimore, Md. and London, 2000), pp. 174–5.

¹⁶ Edward Coke, The Second Part of the Institutes of the Lawes of England (1642) (hereafter ‘Coke, Second Institutes’), ‘A Proeme’, unpaginated.

¹⁷ Coke, Second Institutes, p. 47; P. Wende, ‘“Liberty” und “property” in der politischen Theorie der Levellers: ein Beitrag zur Entstehungsgeschichte der politischen Individualismus im England des 17. Jahrhunderts’, Zeitschrift für historische Forschung, i (1974), 147–73, at p. 159.

¹⁸ Coke, Second Institutes, p. 47.

¹⁹ Coke, Second Institutes, ‘Proeme’.

²⁰ Coke, Second Institutes, ‘Proeme’.

²¹ John Lilburne, The Copy of a Letter ... to a Freind (1645).

²² William Walwyn, Englands Lamentable Slaverie (1645), in The Writings of William Walwyn, ed. J. R. McMichael and B. Taft (Athens, Ga., 1989), pp. 147–8.

²³ A Remonstrance of Many Thousand Citizens (1646), p. 15. This seminal Leveller pamphlet often used to be attributed to Richard Overton by scholars, but David Adams has demonstrated that Overton printed but probably did not write it. Walwyn thus seems the most likely candidate for authorship (D. R. Adams, ‘The secret printing and publishing career of Richard Overton the Leveller, 1644–46’, The Library, xi (2010), 3–88).

²⁴ John Lilburne, The Peoples Prerogative (1648), title page.

²⁵ Richard Overton, The Commoners Complaint (1647), p. 14.

²⁶ Richard Overton, An Arrow Against All Tyrants and Tyranny (1646), pp. 6–7; Coke, Second Institutes, p. 46.

²⁷ John Lilburne, Innocency and Truth Justified (1646), p. 64; Coke, Second Institutes, p. 56.

²⁸ For example, John Lilburne, The Oppressed Mans Oppressions (1647), p. 24.

²⁹ Lilburne, The Peoples Prerogative, pp. 4–6.

³⁰ M. Dzelzainis, ‘History and ideology: Milton, the Levellers, and the Council of State in 1649’, Huntington Library Quarterly, lxviii (2005), pp. 269–87.

³¹ K. Thomas, ‘The Levellers and the franchise’, in The Interregnum: the Quest for Settlement 1646–1660, ed. G. E. Aylmer (1972), pp. 57–78, at pp. 73–5.

³² For a more detailed discussion of the issues in this paragraph, see R. Foxley, ‘John Lilburne and the citizenship of “free-born Englishmen”’, Hist. Jour., xlvii (2004), 849–74.

³³ E. Vernon and P. Baker, ‘What was the first Agreement of the People?’, Hist. Jour., liii (2010), 39–60; The Agreements of the People, the Levellers and the Constitutional Crisis of the English Revolution, ed. P. Baker and E. Vernon (Basingstoke, 2012).

³⁴ J. Frank, The Levellers: a History of the Writings of Three Seventeenth-Century Social Democrats: John Lilburne, Richard Overton, William Walwyn (Cambridge, Mass., 1955), p. 142; H. N. Brailsford, The Levellers and the English Revolution (1961), p. 376; I. Hampsher-Monk, ‘The political theory of the Levellers: Putney, property and Professor Macpherson’, Political Studies, xxiv (1976), 397–422, at p. 417. For a fuller discussion of the natural law aspects of Leveller thought and of the idea of the Agreements of the People as social contracts, see R. Foxley, The Levellers: Radical Political Thought in the English Revolution (Manchester, 2013), chs. 1 and 2.

³⁵ D. A. Orr, ‘Constitutionalism: ancient, modern and early modern in the Agreements of the People’, in Baker and Vernon, The Agreements of the People, pp. 76–96.

³⁶ An Agreement of the People for a Firme and Present Peace (1647), pp. 5–6.