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Des chartes aux constitutions

 | 
François Foronda
, 
Jean-Philippe Genet

Partie IV. Crises constitutionnelles

The Levellers and the English Constitution in the English Civil War

Rachel Foxley

Texte intégral

1The English constitution in the 17th century, like the British constitution today, was unwritten. People were very sure that it existed; scholars have often discussed the political thought of the early 17th century – the reigns of James I and Charles I before the outbreak of the English Civil War in 1642 – in terms of constitutionalism and the “ancient constitution”, and much of the debate of the civil wars themselves was conducted in such terms too. Of course England, like other areas of Europe, had generated written charters, particularly Magna Carta, which were taken as a crucial part of the evidence for what England’s ancient constitution was – even if, for some common law purists, the fact that Magna Carta was a written document dating from a known historical moment in 1215 or 1225 meant that it could not be a constitutive part of, but could only be evidence of, an ancient constitution. The malleability of this unwritten constitution posed huge problems in a period of political conflict and instability, and the English in the 17th century engaged in legal, historical, and political debate – as well as civil war – to determine what it decreed. This was a critical moment for the history of constitutionalism, because the pressures of political conflict and civil war meant that, for the first time, the unwritten constitution came close to being crystallised into, or replaced by, a single written constitution. Not only did army men and civilian radicals known as the Levellers put forward a series of documents known as the Agreements of the People, which aspired to establish both the framework for and the principles of the government of the nation, but from 1653 to 1657 the country was indeed governed under the terms of a different written ­constitution, the Instrument of Government.

2In the mid-17th century, then, written constitutions began to emerge in a society whose political debate was already deeply constitutionalist in ­character. On the face of it this seems like a natural, even organic, development. But of course it was not to succeed. The Agreements of the People were never implemented; the Instrument of Government’s clever drafting could not save it from the fundamental problem of its lack of legitimacy, and it was replaced even before Oliver Cromwell’s death by a parliamentary document (the Humble Petition and Advice) which returned to the assumption that much of the framework of power was already established in the existing laws of the land, rather than being spelled out within the text itself. Even the most detailed and prescriptive constitutional proposals made by a republican in the 1650s, those of James Harrington, were set out in a narrative which emphasized not the fixed “orders” of the perfect commonwealth – although they were to be fixed – but the process by which they could be put in place. It seems that there was some hesitation about this kind of overt, black and white, fixing and freezing of a constitution. At the Restoration of the Stuart monarchy, there was no attempt to codify a royalist interpretation of the constitution; rather, all intervening constitutional legislation was repealed and the nation returned to the status quo of 1641. No written document from the mid-century revolution became part of the jigsaw of written law which makes up the United Kingdom’s modern “unwritten” constitution, although the playing out of some of the revolutionary impulses of the mid-century can be seen in the so-called “Glorious Revolution” of 1688-1689, which did generate parts of the written constitutional framework which have endured to the present day.

3The lesson of the civil war period is that the relationship between consti­tutionalism and the emergence of written constitutions is not simple. A consti­tutionalism which saw the principles and limits of government as deeply embedded in law and national life was not just problematically flexible – it was also helpfully flexible. Pinning it down would not just be alien to its character; it might also reduce its usefulness in unforeseen circumstances, unless the principles taken to inform it were very widely drawn. But written constitutions were also in danger of undermining precisely the authority that ­con­stitutionalism invoked, and seeming like contingent, new, human and possibly partisan creations, rather than the ancient wisdom of the nation. The reverence which surrounded the ancient constitution might militate against trying to pin down its essence in a single written document.

  • 1 John Milton, The Tenure of Kings and Magistrates (1649), in id., Political Writings, ed. by M. Dzel (...)

4This might at least seem to make written constitutions a natural tool for political radicals such as the Levellers, who after all were aiming to refashion the structures of government in a fundamental way. But the logic of radical thinking might actually tell against a written constitution in two different ways. Firstly, the radicals’ arguments about the need for change were drawn from the same wells, including the mythical ancient constitution, as other parliamentarians’ arguments for resisting the king, even if the historical interpretation which bolstered this was sometimes different. Sometimes it was these arguments which could be most useful not just in putting the case against the king but in curbing parliament’s excesses too, and this was a central plank of the Levellers’ radical programme. Secondly, contrasting strands of parliamentarian radical thought were coming to emphasize parliamentary sovereignty or even popular sovereignty (perhaps exercised through the Levellers’ proposal to “appeal to the people” in case of emergency): such theories might suggest the perpetual openness of the constitution to change along with the changing will of the people or their representatives. John Milton stated this maxim in 1649: “the right of choosing, yea of changing thir own Goverment [sic] is by the grant of God himself in the People”, and can be exercised as the people see fit1. Since the Levellers too were theorists of popular sovereignty, they might be expected to share this view, and hence to be reluctant to fix the will of the people at one moment of time in a written constitution. However, by 1649 they were prepared to do so, and I will return to this at the end of the chapter.

The ancient constitution before the civil war

  • 2 J. G. A. Pocock, The Ancient Constitution and the Feudal Law: a Study of English Historical Thought (...)
  • 3 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 46-55.
  • 4 Ibid., pp. 42-44.
  • 5 G. Burgess, The Politics of the Ancient Constitution: an Introduction to English Political Thought, (...)

5The reigns of James I from 1603 and Charles I from 1625 saw a revival of political discourse appealing to England’s ancient constitution. Historians grappling with the nature of political thought in early Stuart England have had much to say about this “ancient constitution” and its relationship to the customary basis of England’s common law legal system, and to 17th-century interpretations of English history. John G. A. Pocock’s seminal work The Ancient Constitution and the Feudal Law, published in 1957, laid the foundations for subsequent interpretations of political thought in the early 17th century, and hence for interpretations of the intellectual background to the civil war. Pocock emphasized the way in which the common law system encouraged early Stuart Englishmen to see custom and hence law as immemorial, with the law enshrining custom which had existed before the historical record, and laws and institutions systematically read back into this pre-historical past2. This pattern of ­common-law thought had crucial advantages, establishing a grounding for rights and privileges which was independent of the king and could be used as a bulwark against royal prerogative; indeed, this way of thinking was so embedded in English political life that royal prerogative could be justified by reading it as part of this immemorial or fundamental law, rather than as a rival source of authority3. For my purposes here, Pocock’s account is fascinating because it highlights a paradox: this form of common-law thought rested on claims about the past, but in many ways was not what we would recognize as a historical form of thought. It certainly depended on denial of the rupture of the Norman Conquest, even if it could accommodate some narrative of change and development4. In its emphasis on immemoriality it could almost merge past with present, and thus it endowed arguments with the authority of the past while running the risk of being an immobilizing force for the future. Glenn Burgess changed the emphasis of Pocock’s common law mindset, emphasizing the rationality and change embedded in the process of development of the common law as seen by more “typical” commentators than Sir Edward Coke, and its focus on the justification of the present constitution as the product of that winnowing process5. On either interpretation, what the ancient constitution justified was, by definition, still upheld by current law, and any challenge to current practice depended on demonstrating that the law was being violated. On the face of it, the ancient constitution was a conservative way of thought, but in practice it could be wielded in remarkably flexible ways.

6The ancient constitution, then, was imagined as a set of precedents and practices, rather than a text or a set of texts. But the 17th-century version of that ancient constitution rested on textual evidence. Now that it was being invoked in the political conflicts which plagued the war years of the 1620s, in particular, the way in which conflict might encourage people to try to fix the meaning of the ancient constitution in texts did start to become apparent, even though those texts fell far short of being constitutions. The desire to appeal back to an authoritative and almost talismanic text was certainly visible in the renewed invocations of Magna Carta (usually in the version of 1225) in the 17th century. In 1628, to push home the claim that the government’s recent actions were breaches of the ancient constitution, parliament presented the king with the Petition of Right, which explicitly referred back to the authority of Magna Carta and other medieval measures. The desire for proof-texts to aid the defence of the ancient constitution meant that once the mid-century crisis dawned, not only Magna Carta but the Petition of Right too were constantly invoked, particularly by parliament.

Radicalism and constitutionalism in the mid-century crisis

7The crisis which precipitated the civil war in England was a constitutional crisis, although it had other components too. The issue of religion – key to the rhetoric of contemporaries and to the analyses of many historians – had strong constitutional implications in this period in any case, given the king’s position as head of the Church of England and the role of parliaments in establishing that Church through statute in the Tudor period. Undoubtedly, too, there was a fundamental breakdown of trust between the king and his more zealous critics, one which might have put huge pressure on the course of politics even if the working of the constitution had been less disputed. But it was also a constitutional crisis: contemporaries explicitly voiced fears for the future of the constitution, and accused their opponents of endangering it.

  • 6 John Pym, speech of 7 November 1640, in J. P. Kenyon (ed.), The Stuart Constitution, 1603-1688: Doc (...)
  • 7 C. Russell, The Causes of the English Civil War, Oxford, Oxford University Press, 1990, pp. 131-144

8The language used by both sides about this constitutional crisis is revealing: it is strikingly similar on both sides, and in particular it was larded with denunciations of the “innovation” being attempted by the other side. Accusations of “innovation” often referred to religion, but both Charles I and the parliamentary leader John Pym argued that the civil constitution, and not just religion, were in danger. In remarkably similar phrases, they asserted that there was a “design” (the term they both used) “to alter the kingdom both in religion and government” (as Pym put it), or as Charles declared, “to alter the frame of the Government both of Church and State6”. Both sides opposed any such design to “alter” government: both sides presented themselves as fighting against ­constitutional change of any kind. Thus at the outset of the civil wars, both king and parliament tried to claim the high ground of constitutionalism and the rule of law. Whether or not they entertained alternative theories justifying arbitrary power in either king or parliament, constitutionalist arguments held a powerful appeal, to parliamentarians, to royalists, and to those whom they sought to persuade7. In these arguments against innovation, we see the power of one type of constitutionalism – the type which would militate strongly against the making of any new constitution.

  • 8 His Majesties Answer to the Nineteen Propositions of both Houses of Parliament, Cambridge, s. n., 1 (...)
  • 9 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 48-49, 124-125.

9However, in the very parallelism of the royalist and parliamentarian deployments of the language of innovation and the rule of law, we see that the lineaments of the constitution were not entirely agreed. Both defended the legal status quo as they saw it, and certainly royalists were prepared to denounce or renounce Ship Money (to take the least disputed example of royal encroachments on law, custom, and of course property) alongside parliamentarians. But when the King denounced “that new Utopia of Religion and Government, into which [his opponents in parliament] endevour to transform this Kingdom”, he was replying to parliamentary proposals – the Nineteen Propositions of June 1642 – which undoubtedly undermined the king’s traditional prerogatives, for example by demanding parliamentary approval of royal appointments to high office and to the Privy Council8. As it started to propose such changes, parliament had to imagine and defend the “ancient constitution” more flexibly and creatively than before, if it was not to abandon it completely. An appeal to an ancient constitution could still ground parliament’s challenge to the king, but it was clear that that ancient constitution was being more actively imagined into being through the projection of current principles back into the distant past. As Pocock suggested, parliamentary sovereignty began to displace the immemorial law as the justification for political claims, but the 17th-century concept of the “fundamental law” was a mediating term between them: the fundamental law was used to ground the sovereignty of parliament9.

10As war approached and progressed, parliament’s own violations of the Petition of Right of 1628 meant that it was increasingly vulnerable to royalist constitutionalist rhetoric, and some of its own propagandists grew more comfortable with alternative justifications of parliament’s actions in fighting the king. However, constitutionalism remained powerful, and parliament remained cautious both in its refusal to name the king himself as an enemy, and in its sequence of peace proposals during and after the civil war, which tended to restrict themselves largely to the remedy of grievances and to the temporary removal of military power from the king. Even under the pressure created by a civil war, parliament’s negotiating positions did not take on the quality of reforming constitutional documents. Significantly, it was the Heads of the Proposals of 1647, the peace treaty proposed not by parliament but by the New Model Army, which broke that pattern and looked most like a fresh constitution for the country. The Heads sprang from the army’s deep fears about the consequences of a royal restoration on the kind of terms parliament (dominated at this point by the factional enemies of the army) had proposed; its detailed proposals for biennial parliaments, which make it feel like a very “constitutional” document, were intended to cure parliament of its perceived corruption as well as ensuring that the king could not rule without calling parliaments. Disillusioned radicals within the army effectively responded to the monarchical Heads of the Proposals with the more radical first Agreement of the People in the autumn of 1647, and the device was then adopted by the civilian Levellers.

Radicalism and constitutionalism

  • 10 C. Condren, “Radicals, Conservatives and Moderates in Early Modern Political Thought: a Case of San (...)

11The very concept of civil war radicalism was treated as suspect by a generation or more of revisionist historians. These historians rightly emphasized that the numbers of those involved in radical sects or political causes was, viewed in national perspective, small; and they engaged in perhaps unprofitable debates about the legitimacy of even applying the anachronistic term “radicalism”, debates which paralleled recurring discussions about the use of the term “revolution” for the events of the mid-17th century10.

  • 11 J. S. Morrill, The Revolt of the Provinces: Conservatives and Radicals in the English Civil War 163 (...)
  • 12 B. Kümin, “Gemeinde und Revolution: die kommunale Prägung der englischen Levellers”, in P. Blickle (...)
  • 13 J. Peacey, Print and Public Politics in the English Revolution, Cambridge, Cambridge University Pre (...)

12Some of these revisionists, John Morrill being a particular example, sought also to reshape our perception of those viewed as radicals, placing them in a more unrevolutionary England by emphasizing the elements of their thought which seemed nostalgic or localist rather than offering a vision for national transformation focused on the institutions of Westminster11. This revisionist perception has since fed into a productive strand of literature on local government and the experience of political engagement as potentially fertile sources for radicalism. Beat Kümin and Philip Baker have looked at the way in which the Levellers’ ideas may have grown out of their engagement with local government in practice, including (as Baker emphasizes) the creative and idealising reconstruction of a past which had never quite existed12. More broadly, Jason Peacey’s recent work has suggested that radicalism in the civil war years might grow out of individuals’ frustrated attempts to secure attention and intervention from the authorities, particularly the Long Parliament, in their own affairs: an experience which the Levellers had in common with less consistently political contemporaries13. His argument suggests that some civil war radicalism, rather than being born of lofty theories, was born of bitter experience which led people towards strong assertions of what they believed to be their rights. With a little rhetorical exaggeration or historical interpretation, these rights could be made to converge with the requirements of the ancient constitution.

  • 14 J. C. Davis, “Radicalism in a Traditional Society: the Evaluation of Radical Thought in the English (...)

13Radicals may have rooted their arguments in experience and in history, but they also deserve the radical label because they did want to remake the nation in a fundamental way. J. Colin Davis, navigating around the dangers of assuming that radicalism is defined by its specific content, has suggested a functional definition of radicalism which does enable us to pick out thinkers as radical within their 17th-century context. For Davis, authors were radical who delegitimated the existing socio-political order; legitimated an alternative order; and provided a transfer mechanism through which the desired transformation could be achieved – thus detaching radicalism from any necessary alignment with the left rather than the right, “progress” rather than mere intentional and fundamental change14. Whether or not such an austerely functional definition of radicalism is necessary, the questions both of legitimation and of the provision of a “transfer mechanism” shed light on our topic of constitutions and constitutionalism. The ancient constitution could be a powerful tool both for legitimation of desired arrangements and for delegitimation of present authorities (seen as in violation of the constitution), but the legitimation that constitutionalism offered was difficult to convert into a transfer mechanism which might recognize too explicitly that the new order was indeed new. The Levellers were a radical group with a systematic enough critique of existing society, and vision of a transformed society, to meet Davis’s criteria for radicalism. But their transfer mechanism was not always entirely clear: often they petitioned for the radical reforms they wished to see, and the implication would be that parliament could then legislate to achieve them. Often they implied that in doing so, parliament might ­simply be ­restoring the operation of fundamental laws informing the English constitution. However, they also turned to the device of an Agreement of the People, a written document, to be approved not just by parliament, but primarily by the subscription of the people themselves; by their final version of this, in May 1649, it was specified that the document was to set an unchangeable framework for the future government of the nation. This was certainly a transfer mechanism, and could have worked as one. But as an innovation in itself, this written constitutional framework was in danger of losing the legitimating force of a more nostalgic ancient constitutionalism. In the rest of the paper I will explore the ways in which the Levellers (and to some extent their radical fellow-travellers in the army, the originators of the Agreements of the People) negotiated this tension.

The Levellers and the nature of civil war radicalism

  • 15 R. Foxley, The Levellers: Radical Political Thought in the English Revolution, Manchester, Manchest (...)
  • 16 See D. A. Orr, “Constitutionalism: Ancient, Modern and Early Modern in the Agreements of the People(...)

14The Levellers were a radical grouping who agitated for a revolutionary set­tlement which would have replaced the supreme authority of ­king-in-parliament with that of the people acting through their elected representatives. In many ways they embodied the challenges that radical parliamentarian thought might pose to the ancient constitution. Leveller texts asserted that the Norman Conquest had ruptured English history and law and that the English needed to throw off this Norman Yoke. The Levellers’ profound belief in a parliamentary supremacy underpinned by popular sovereignty also suggested that politics had to be fluid and responsive, as the Levellers’ insistence on annual parliaments and their willingness to “appeal to the people” over the heads of parliament suggested15. However, they did not abandon the language of law and the ancient constitution, drawing on this to support even some of their most radical proposals16. Furthermore, and in some tension with their willingness to call on the ancient constitution to legitimate their demands, they did eventually hope to solve the nation’s problems by implementing an unchangeable written constitutional framework, in the form of the third Agreement of the People.

15The Levellers were a campaigning group, emerging from the more forthright and radical end of the parliamentarian spectrum, who coalesced from around 1645, the year in which parliamentarian victory in the civil war became virtually certain, and were active throughout the later 1640s, intervening in the debates about the settlement of the kingdom through prolific pamphleteering. John Lilburne, already known for his part in the resistance to the Laudian bishops in the later 1630s, was their most visible figurehead, with a notorious tendency to align his own grievances with those of the nation in his powerful but sometimes indigestible pamphlets. Richard Overton, William Walwyn, and John Wildman were collaborators with very different but equally powerful pamphleteering styles. In spite of differences of style and sometimes more substantial differences in theoretical approach too – as we will see with Walwyn and the interpretation of Magna Carta – the Leveller movement over the years from 1646 to 1649 put forward a fairly consistent and united programme of key proposals for the future government of England.

16The Levellers were powerful critics of all “regal tyranny” – tyranny created by the institution of monarchy, not just by the character flaws of Charles I – and argued explicitly against the legislative veto exercised by the king and the House of Lords, arguing for a reformed elected chamber as the supreme institution of government. They were less explicit about the fate of the monarchy itself and of Charles I, but their arguments contributed to the campaign for his trial and execution and to justifications of the regicide. However, the Levellers did not just protest against royal tyranny and the power of the lords; they also saw the danger of being tyrannized by their own elected representatives – a fear which reflected the experience of rule by the apparently perpetual Long Parliament, originally elected in 1640. This fear was exacerbated by the fact that two of their imprisoned leaders – John Lilburne and Richard Overton – failed to find redress for their plight when they appealed to the House of Commons. It was at this point, in 1647, that they decided to “appeal” over the heads of the parliament to the people at large outside parliament through their pamphlets. This coincided with a year of troubles and turbulence in parliament’s New Model Army, which, faced with disbandment proposals from the presbyterian-leaning parliament, banded together in defiance of parliament and became directly involved in the debate on settlement. The army itself was divided over the Heads of the Proposals, terms of settlement backed by the army leadership and presented to the king, and dissension came to a head at the time of the Putney debates in October-November 1647. The General Council of the Army, consisting of senior officers but also representatives of the junior officers and rank and file, held several days of discussion which were partly based on a paper which was tabled by more radical members, a document now known as the first “Agreement of the People”.

17The first Agreement of the People thus arose from the context of radicalism in the New Model Army in 1647, rather than directly from the civilian Leveller movement. This remarkable document set out the principles and parameters within which government was to be conducted in future, and divided power between the elected “representatives” who would sit in biennial parliaments and the people who elected them. The army radicals were clearly influenced in some of their ideas by Leveller pamphleteering, and the Agreement of the People was to appear in another form when Levellers and army ­leaders attempted to broker a second version prior to the king’s trial, and in a purely Leveller form when on 1 May 1649 the imprisoned Leveller leaders John Lilburne, Richard Overton, William Walwyn, and Thomas Prince issued their final Agreement of the People as a challenge to the new, republican regime.

  • 17 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 125-127.
  • 18 G. Burgess, The Politics of the Ancient Constitution…, op. cit., pp. 67, 87, 90-93.
  • 19 J. P. Sommerville, Politics and Ideology in England, 1603-1640, London, Longman, 1986; id., “Histor (...)

18The historiography on the Levellers used to see them as forward-looking thinkers whose commitment to natural-law theories of consent and political equality overrode historical or legal considerations, which appeared in their writings for reasons of illustration or persuasion rather than as building-blocks of their thought. In Pocock’s account, the Levellers moved beyond even the more general parliamentarian tendency to use “fundamental law” to reconcile the ancient constitution with parliamentary rule. Thus the Levellers not only accepted the Norman Conquest as real but even saw its consequences as a “Norman Yoke” of unprecedented oppression – an account which, in Pocock’s terms, was clothed “in historical language” but was “fundamentally anti-­historical” because – even if their interpretation of the Norman Conquest had its strengths – the ancient rights the Levellers attributed to the Saxons were justified not by history but by “political rationalism”. According to Pocock, the Levellers “could not appeal to the law” to vindicate Englishmen in reclaiming the rights they had lost17. For Glenn Burgess, too, the Levellers’ thought was fundamentally alien to this tradition of appealing to the law to vindicate a constitution seen as still in existence. Levellers could adopt “common law language” only opportunistically, in the context of the propaganda battles of the civil war, which were often conducted in a “fundamentally rhetorical” way18. Burgess’s portrait of the early Stuart “consensus” about the ancient constitution was partly intended to challenge and modify Johann Sommerville’s account of an early Stuart ideological divide, in which natural law arguments formed part of both divine right and consent theories of government and meant that English political debate was far from confined to argument from history and authority. On Sommerville’s argument, argument from “theory” was thus not a surprising move from later Leveller authors, and historical debate often illustrated theory rather than being a substitute for it, even for less radical authors19.

  • 20 A. Sharp, “John Lilburne’s Discourse of Law”, Political Science, 40, 1988, pp. 18-33; R. B. Seaberg (...)
  • 21 J. Greenberg, “The Confessor’s Laws and the Radical Face of the Ancient Constitution”, English Hist (...)
  • 22 Ibid., pp. 226-229.
  • 23 A. Cromartie, The Constitutionalist Revolution: an Essay on the History of England, 1450-1642, Camb (...)
  • 24 M. Dzelzainis, “History and Ideology: Milton, the Levellers, and the Council of State in 1649”, Hun (...)

19However, several scholars have taken the Levellers’ uses of law and history more seriously. Robert B. Seaberg and Andrew Sharp have rightly pointed to the use of legal discourse by Leveller authors, especially by Lilburne, Seaberg suggesting that Lilburne was able to rescue much of the content of the common law from the taint of Norman origins, condemning the process rather than the essence of the law as Norman20. Janelle Greenberg has emphasized the ways in which Charles I’s critics used (sometimes spurious) medieval sources to ­construct a radical version of the ancient constitution, focusing in particular on the “laws” of Edward the Confessor. This version of the ancient constitution idealised supposedly Saxon laws and institutions, but did not claim that they had been obliterated by the “Norman Yoke” at the conquest; rather, they had survived and been confirmed by later kings, and thus principles of elective monarchy, and the belief in the Saxon origins of parliament and even of the House of Commons, could feed into the 17th-­century resistance to Charles I21. Her account narrows the apparent gulf between ancient constitution thinking and belief in a Norman Yoke; in the case of the Levellers, the constant struggle to keep ancient rights alive through prescription was crucial, and the Levellers’ belief in the Norman Yoke was “tempered by the Conqueror’s confirmation of St. Edward’s laws and the subsequent confirmations carried in the coronation oath”, even if arguments from reason were ultimately paramount22. Alan Cromartie’s account of the rise of the common law and its increasing claims to competence in all political questions also touches on the attraction this type of the thought still held for the Levellers. As he rightly points out, Lilburne was excited by the ­parliamentarian ­pamphlet which argued that equity overrode the letter of the law; “it is characteristic of all the main Leveller writers that they could never quite decide if they were rejecting the law as a whole or if they were appealing to its spirit”. The “inheritance” or birthright of liberties which the Levellers claimed owed this particular phrasing and conceptualisation to the tendency to see “all political claims [as] claims at common law23”. Thus the Levellers never completely lost touch with the language and thinking of the common law tradition linked to the ancient constitution. Furthermore, as Martin Dzelzainis suggests, even after they had expressed doubts about the usefulness of Magna Carta and the ancient constitution it symbolised, they realised that they had good reason to return to it. Key propagandists of the Long Parliament had started to argue that parliament was not bound by Magna Carta; returning to the common law alongside their natural law arguments allowed the Levellers and their allies to argue more effectively against parliamentary tyranny24.

  • 25 John Lilburne, The Juglers Discovered, London, s. n., 1647, p. 5.
  • 26 William Walwyn, Englands Lamentable Slaverie, London, s. n., 1645, in J. R. McMichael, B. Taft (eds (...)

20As much of this literature suggests, the Levellers continued to draw on the language of the common law in persistent if sometimes subtle and flexible ways, and even to appeal overtly to it, while also justifying their vision of politics in terms of natural law and the need for political power to be based on consent. The two languages, for the Levellers, and particularly for Lilburne, the most enthusiastic user of legal language, were not in contradiction but complementary: the rights guaranteed by the law of England were also guaranteed by the law of nature. His mission was to defend “the rationall, natural, nationall, and legal liberties of my selfe and all the Commons of England25”. Lilburne’s colleagues had not always been so keen to endorse the possibility of this confluence of legal and natural liberties. William Walwyn, another of the movement’s leaders, famously reproached Lilburne for his reverence for Magna Carta. 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; it was the same parliaments who spent most of their time abridging liberties yet further, who when danger appeared 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”. For Walwyn, at this stage in the prehistory of the Leveller movement (Lilburne and Walwyn were just making each others’ acquaintance at this point), the charters of the past should not be the key to the constitution of the future. Tellingly, Walwyn complained that Parliament “when they might have made a newer and better Charter, have falne to patching the old26”. This might suggest that the Levellers were willing to abandon the legitimation of the ancient constitution, evidenced in Magna Carta, and embrace a new constitution based on reason, regardless of prescription, custom and precedent.

  • 27 Id., Juries Justified, London, s. n., 1651, in J. R. McMichael, B. Taft (eds.), The Writings of Wil (...)
  • 28 Ibid. (the Petition of Right); John Lilburne, Innocency and Truth Justified, London, s. n., 1646, p (...)

21However, even after this reproach, Lilburne and Overton continued to give great significance to the Englishman’s “birthright” of the law, encapsulated in Magna Carta, although it was conveniently easy to equivocate about whether Magna Carta’s status was based on the common law or on the fact that it was also a statute. Even Walwyn eventually admitted that the objectionable aspects of Magna Carta were just a “French garb or cloathing” disguising the “true English Liberties” which had survived into the charter27. Of course, if English liberties were still in some sense enshrined in valid law, they not only did not necessarily need restatement in a new constitutional document, but might perhaps be reduced by any attempt to do so, as their complexity might be best recognised and interpreted within the processes of law. Nonetheless, the Levellers did value the Petition of Right, which was seen as encapsulating some of these liberties, and Lilburne’s constant willingness to cite texts which demonstrated the liberties of the “free-born Englishmen” again suggested a willingness to compile a relatively small canon of proof-texts for these liberties, as interpreted by the Levellers28. For Lilburne, writing in the unstable years of the 1640s, these collections of texts were useful because ordinary people could use them to learn what their liberties were, as much as because they put these liberties beyond doubt for the authorities. Given the Leveller authors’ constant concern to educate their readers, and make them willing and able to defend their own and the country’s liberties, it sometimes seems that the “transfer mechanism” which would enable a transformative revival of long-lost liberties is simply the raised consciousness of the people themselves.

The Agreements of the People, 1647-1649

  • 29 J. C. Davis, “The Levellers and Christianity”, in B. Manning (ed.), Politics, Religion and the Engl (...)
  • 30 I. Hampsher-Monk, “The Political Theory of the Levellers: Putney, Property and Professor Macpherson (...)
  • 31 R. Foxley, The Levellers…, op. cit., pp. 28-31, 72-81.

22How important, then, were the Agreements of the People to the Levellers, and what was their significance? As we now know, they did not invent the form: the first Agreement of the People originated in the context of army radicalism, although quite possibly drafted by John Wildman as a civilian ally of the army radicals. J. Colin Davis has rightly questioned the centrality of the Agreements to the Leveller project; although the Agreement of the People became the preferred mechanism for achieving change by the spring of 1649, earlier it was not so prominent in their texts and petitioning was often a more central tactic29. Thus, although the device of an Agreement of the People – a settlement which would be ratified not by parliament but by the direct subscription of individual citizens – tallied extremely well with the Levellers’ emphasis on popular sovereignty and the importance of individuals understanding their own rights, the Levellers did not see it as the only way in which their aims could be fulfilled. Scholars who have seen the Agreements as more central to the Levellers have often done so because they see the Agreements as embodiments of the classic natural law account in which original liberty is partly exchanged for government by consent through the means of a social contract. Iain Hampsher-Monk thus argued that the Agreements of the People were designed as “social contracts”, and that the English were now free to enter into this entirely new contract because the nation had returned to a state of nature30. However, close reading of Leveller texts suggests that, while they raised the spectre of such a return to the state of nature, they were reluctant to declare that this had actually occurred, at least until the regicide, and they did not make either their appeals to the consciences of the people or their involvement in propounding Agreements of the People for popular subscription dependent on the population being in a state of nature31. The people who would subscribe the Agreements were still within the framework of the English polity; they simply needed to reclaim and exercise the birthrights, and the natural rights, that should exist within it.

  • 32 D. A. Orr, “Constitutionalism…”, op. cit.

23The Agreements of the People were thus adopted by a movement which used multiple overlapping languages for speaking about politics, including the language of existing rights contained within a mythologised ancient constitution. These claims, as well as the language of reason and consent, legitimated the national changes that the Levellers wished to see. As D. Alan Orr has argued in a very persuasive chapter, the Agreements did not necessarily break with this understanding of the ancient constitution. He shows that key features of the Agreements tallied with a Leveller view of history, and emphasizes the ways in which the idea of a “birthright” of native, national rights supposedly supported by law is being delineated in them32.

  • 33 See P. Baker, E. Vernon (eds.), The Agreements of the People…, op. cit., for further discussion of (...)
  • 34 John Lilburne, Foundations of Freedom; Or an Agreement of the People, London, [no publisher named], (...)

24The first “Agreement of the People”, of October 1647, was born partly of an attempt to knit army and civilian radicalism together, and the extent of any distinctively Leveller contribution to it is unclear. Nonetheless, it became the focus of a civilian Leveller campaign, and the Levellers returned to the device on two more occasions, publishing revised Agreements in December 1648 and May 1649 (both moments when they were seeking army support)33. In all three versions, the Agreement was intended to settle the nation not as the basis for a treaty process or through immediate enactment by Parliament, but, in the first instance, through its subscription by the people themselves. That is the basis for the scholarly view that the Agreements were social contracts, brought out of the fictive past and put into written form in the present to found a new polity. The second Agreement even specified that only those who had subscribed it were to be electors, apparently enacting the process of individual consent to a system of government quite literally34.

25However, this feature of the Agreements, new and powerful though it was, did not mean that the Agreements presented themselves as groundbreaking new constitutions. The wording of the first two Agreements and their associated documents certainly gave no hint of any such grandiose intention. There was no principled assertion of the original power of the people to create a polity; no statement of the purposes of society or government; no assertion that this was an originary moment and the foundation of something new. The preamble and letters recommending the 1647 Agreement, substantially repeated in the second and even the third, made quite clear the purpose of the device. The civil war was caused, fundamentally, by “uncertainty”, and the purpose of the Agreement was to rule out future wars by a definitive clarification of the constitutional position. However dishonest it may seem to historians, or to the Levellers’ contemporaries, the Agreement presented itself as a clarification of the existing constitution of the nation, not as a new one.

26There was no suggestion, let alone a statement, that the nation had returned to a state of nature. The key note was of modified continuity. The preamble to the Agreement’s articles stated that:

  • 35 An Agreement of the People for a Firme and Present Peace, [no place of publication or publisher nam (...)

since therefore our former oppressions, and scarce yet ended troubles have beene occasioned, either by want of frequent Nationall meetings in Councell, or by rendring those meetings ineffectuall; We are fully agreed and resolved, to provide that hereafter our Representatives be neither left to an uncertainty for the time, nor made uselesse to the ends for which they are intended35.

  • 36 Ibid., pp. 5-6.

27The Agreement’s main purposes were to clarify the powers of an existing institution – Parliament, or at least the House of Commons – and to make it more effective in its fulfilment of its ends. The short conclusion to the 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 codification36.

  • 37 C. H. Firth (ed.), The Clarke Papers: Selections from the Papers of William Clarke, London, Camden (...)

28The Agreement was thus conceived of as momentous, but it placed itself within the nation’s history rather than cutting itself off from it. The constitutional status of the Agreement was not entirely clear, but it was clearly distinguished from statute law, which depended on the whim of a single parliament and could be changed by a subsequent one. The gaining of the real “agreement of the people”, through their subscriptions to the document, would secure for the Agreement the status of a fundamental constitutional law. This under-­theorized claim naturally drew criticism at Putney37. Its status as a fundamental law – not to be lightly thrown aside by a future ­parliament – may indeed have been calculated: both army radicals and Levellers had experienced (from their perspective) betrayal by parliament as the 1640s wore on, and an Agreement which explicitly limited the power of parliament could not expect to stand long if it could simply be overturned by statute. It is nonetheless striking that the Agreement, however thoughtfully its terms were recrafted in its successive revisions, never acquired a clause setting out a mechanism by which it could be modified in future; neither did it provide for any process of judicial review. A document born of civil wars, designed to remedy the hopeless unclarity of constitutional roles which had prevailed before the civil war and formed the basis of both sides’ bland slogans, was perhaps understandably keen to insist that no further bargaining (or fighting) could change the new fundamental law, and reluctant to admit that its implementation and interpretation could cause future friction. However, a deeper motivation for the unchangeability of the fundamental law included in the successive versions of the Agreement was that it was supposed to embody not a new or arbitrarily-decided fundamental law, but one which sprang from and harmonized with both natural law and the existing – if violated – fundamental law of England. The Agreements were designed to confirm and protect the existing “native rights” of the English people.

29The radicalism of the first two Agreements, then, lay in their content rather than in their form, and they did not claim to be re-founding the polity. Only the third Agreement, of 1 May 1649, revealed grander ambitions:

We the free People of England, to whom God hath given hearts, means and opportunity to effect the same, do with submission to his wisdom, in his name, and desiring the equity thereof may be to his praise and glory; Agree to ascertain our Government, to abolish all arbitrary Power, and to set bounds and limits both to our Supreme, and all Subordinate Authority, and remove all known Grievances.

  • 38 An Agreement of the Free People of England, London, Gyles Calvert, 1649, pp. 2-3.

30Here finally the Levellers went beyond remedying “the uncertaintie of our Government” and clarifying the constitution (“ascertain our Government”), declaring that they were actively abolishing, limiting, removing38. They were, after all, setting out to change the constitution. Why now? The declaration of supremacy by the House of Commons, the trial and execution of the king, the institution of a Council of State, and the abolition of the office of king and of the House of Lords had all taken place in the previous six months. The taboo on innovation had been comprehensively smashed by the shapers of the new regime; and in any case, the Levellers could claim that what they were keen to “abolish” was the arbitrary power of the indisputably new regime rather than the old one.

  • 39 Ibid., p. 8.

31The third Agreement offers a far more explicit articulation of a transfer mechanism, from old order to new, than the First and Second Agreements did, even though the essential measures they set out were very similar in most respects. But in setting out more clearly that it was abolishing powers and removing grievances, even if those were conceived as powers usurped since the Norman Conquest and grievances arising from that usurpation, the third Agreement was in danger of losing the deeper legitimating power of supposed “fundamental laws” or an “ancient constitution”. Instead of trying to bridge any gap in the continuity of English liberties by explicitly appealing back beyond the conquest, the authors of the Agreement invoked instead the authority of God in “delivering the captive, and setting the oppressed free39”. Some of their contemporaries saw God as authorizing such acts in ways which cut them loose from the established forms or laws of government, and that may be why such language was attractive here. Indeed, the general tone of the radical thought in the army tended towards this kind of celebration of the sword and the saints. But for civilian radicals and those who took the Agreements seriously, the notion of fundamental laws essential to the English polity never entirely lost its grip.

32If the proposed constitutions of the civil war and interregnum period were designed to settle differences and eliminate the contestation which had previously surrounded constitutional thought, they failed. The only written constitution actually implemented, the Instrument of Government under which Oliver Cromwell became Lord Protector in 1653, came under fire from the parliament which sat under its terms, and was eventually replaced by a much vaguer parliamentary document in 1657. The Levellers did perhaps foresee that a written constitution – even one actually “agreed” and subscribed by the people, or (in due course) the people’s ancestors – was far from being a guarantee of unanimity about constitutional matters. But they did not build mechanisms for constitutional interpretation or resolution into the Agreements of the People, and they did not provide for future constitutional change. That may have been because the urge to find a definitive settlement was as strong as the impulse towards popular sovereignty in the Levellers’ thought: if government was to be remade now, it had to be authorized by the popular will, but the people were not to be allowed to remake it again, in a process of contestation which might again lead to war. It may have been because the Levellers, like James Harrington, the republican author of the 1650s, ultimately trusted the will and judgement of the people operating within a rightly established constitution far more than they trusted their judgement in establishing a new constitution. But it may also have been a sign of the Levellers’ persistent belief in fundamental laws, which were too deeply rooted, both in nature and in English history, to be overturned. Those fundamental laws pre-existed the Agreement of the People, and the Agreement would codify them and give them effect.

Notes

1 John Milton, The Tenure of Kings and Magistrates (1649), in id., Political Writings, ed. by M. Dzelzainis, Cambridge, Cambridge University Press, 1991, p. 13.

2 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, Cambridge University Press, 1987, pp. 30-41.

3 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 46-55.

4 Ibid., pp. 42-44.

5 G. Burgess, The Politics of the Ancient Constitution: an Introduction to English Political Thought, 1603-1642, Basingstoke, Palgrave Macmillan, 1992.

6 John Pym, speech of 7 November 1640, in J. P. Kenyon (ed.), The Stuart Constitution, 1603-1688: Documents and Commentary, Cambridge, Cambridge University Press, 1986, 2nd ed., p. 189; His Majesties Answer to a Printed Book, intituled, A Remonstrance, York/London, William Ley, 1642, p. 2.

7 C. Russell, The Causes of the English Civil War, Oxford, Oxford University Press, 1990, pp. 131-144.

8 His Majesties Answer to the Nineteen Propositions of both Houses of Parliament, Cambridge, s. n., 1642, p. 5.

9 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 48-49, 124-125.

10 C. Condren, “Radicals, Conservatives and Moderates in Early Modern Political Thought: a Case of Sandwich Islands Syndrome?”, History of Political Thought, 10, 1989, pp. 525-542.

11 J. S. Morrill, The Revolt of the Provinces: Conservatives and Radicals in the English Civil War 1630-1650, London, Allen & Unwin, 1980, pp. 100-101.

12 B. Kümin, “Gemeinde und Revolution: die kommunale Prägung der englischen Levellers”, in P. Blickle (ed.), Gemeinde und Staat im Alten Europa, Berlin, Oldenbourg, 1988, pp. 361-396; P. Baker, “London’s Liberty in Chains Discovered: the Levellers, the Civic Past, and Popular Protest in Civil War London”, Huntington Library Quarterly, 76, 2013, pp. 559-587.

13 J. Peacey, Print and Public Politics in the English Revolution, Cambridge, Cambridge University Press, 2013, pp. 322-328.

14 J. C. Davis, “Radicalism in a Traditional Society: the Evaluation of Radical Thought in the English Commonwealth, 1649-1660”, History of Political Thought, 3, 1982, pp. 193-213; see also id., “Reassessing Radicalism in a Traditional Society: Two Questions”, in G. Burgess, M. Festenstein (eds.), English Radicalism, 1550-1850, Cambridge, Cambridge University Press, 2007, pp. 338-372.

15 R. Foxley, The Levellers: Radical Political Thought in the English Revolution, Manchester, Manchester University Press, 2013, pp. 20-90.

16 See D. A. Orr, “Constitutionalism: Ancient, Modern and Early Modern in the Agreements of the People”, in P. Baker, E. Vernon (eds.), The Agreements of the People, the Levellers and the Constitutional Crisis of the English Revolution, Basingstoke, Palgrave Macmillan, 2012, pp. 76-96, at pp. 86-87 on the Levellers’ historical justification for a parliament without a House of Lords.

17 J. G. A. Pocock, The Ancient Constitution…, op. cit., pp. 125-127.

18 G. Burgess, The Politics of the Ancient Constitution…, op. cit., pp. 67, 87, 90-93.

19 J. P. Sommerville, Politics and Ideology in England, 1603-1640, London, Longman, 1986; id., “History and Theory: the Norman Conquest in Early Stuart Political Thought”, Political Studies, 34, 1986, pp. 249-261. Q. Skinner’s argument, by contrast, falls closer to J. G. A. Pocock’s in suggesting that it was the Levellers who followed chroniclers in breaking away from the whiggish view of other parliamentarians: Q. Skinner, “History and Ideology in the English Revolution”, Historical Journal, 8, 1965, pp. 151-178, at pp. 161-162.

20 A. Sharp, “John Lilburne’s Discourse of Law”, Political Science, 40, 1988, pp. 18-33; R. B. Seaberg, “The Norman Conquest and the Common Law: the Levellers and the Argument from Continuity”, Historical Journal, 24, 1981, pp. 791-806.

21 J. Greenberg, “The Confessor’s Laws and the Radical Face of the Ancient Constitution”, English Historical Review, 104, 1989, pp. 611-637; ead., The Radical Face of the Ancient Constitution: St Edward’s “Laws” in Early Modern Political Thought, Cambridge, Cambridge University Press, 2001, p. 3-33, 78.

22 Ibid., pp. 226-229.

23 A. Cromartie, The Constitutionalist Revolution: an Essay on the History of England, 1450-1642, Cambridge, Cambridge University Press, 2006, pp. 270-271.

24 M. Dzelzainis, “History and Ideology: Milton, the Levellers, and the Council of State in 1649”, Huntington Library Quarterly, 68, 2005, pp. 269-287, at pp. 280-283.

25 John Lilburne, The Juglers Discovered, London, s. n., 1647, p. 5.

26 William Walwyn, Englands Lamentable Slaverie, London, s. n., 1645, in J. R. McMichael, B. Taft (eds.), The Writings of William Walwyn, Athens (GA), University of Georgia Press, 1989, pp. 147-148.

27 Id., Juries Justified, London, s. n., 1651, in J. R. McMichael, B. Taft (eds.), The Writings of William Walwyn, op. cit., p. 438.

28 Ibid. (the Petition of Right); John Lilburne, Innocency and Truth Justified, London, s. n., 1646, p. 52 (recommending essential books for purchase: Pym’s speech against Strafford and speeches and judgements in the Ship Money case); id., The peoples prerogative and priviledges, asserted and vindicated, (against all tyranny whatsoever.) By law and reason. Being a collection of the marrow and soule of Magna Charta, and of all the most principall statutes made ever since to this present yeare, 1647, London, s. n., 1648; id., An Impeachment of High Treason, London, s. n., 1649, p. [64] (numbered 56) (Lilburne includes text of the charges against Charles I “because I often use it”). Lilburne also collected and published The Charters of London, London, s. n., 1646; see P. Baker, “London’s Liberty in Chains Discovered…”, op. cit., for analysis of this.

29 J. C. Davis, “The Levellers and Christianity”, in B. Manning (ed.), Politics, Religion and the English Civil War, London, Edward Arnold, 1973, p. 225-250.

30 I. Hampsher-Monk, “The Political Theory of the Levellers: Putney, Property and Professor Macpherson”, Political Studies, 24, 1976, pp. 397-422, at p. 417.

31 R. Foxley, The Levellers…, op. cit., pp. 28-31, 72-81.

32 D. A. Orr, “Constitutionalism…”, op. cit.

33 See P. Baker, E. Vernon (eds.), The Agreements of the People…, op. cit., for further discussion of this series of documents and the relationship between Leveller and army-related versions.

34 John Lilburne, Foundations of Freedom; Or an Agreement of the People, London, [no publisher named], 1648, p. 5; E. Vallance, Revolutionary England and the National Covenant, Woodbridge, Boydell and Brewer, 2005, p. 148.

35 An Agreement of the People for a Firme and Present Peace, [no place of publication or publisher named], 1647, p. 2.

36 Ibid., pp. 5-6.

37 C. H. Firth (ed.), The Clarke Papers: Selections from the Papers of William Clarke, London, Camden Society, 1901, vol. 1, p. 237 (Oliver Cromwell questioning the authority of the Agreement at the Putney Debates).

38 An Agreement of the Free People of England, London, Gyles Calvert, 1649, pp. 2-3.

39 Ibid., p. 8.

Auteur

University of Reading (United Kingdom)

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