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Book Review
| John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty, DeKalb: Northern Illinois University Press, 2005. Pp.180. $32.00 (ISBN 0-87580-342-3).
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| Scholars acquainted with Reid's work will recognize its major themes here. Particularly familiar is the thesis that, when seventeenth- and eighteenth-century English and American common lawyers deployed the Anglo-Saxon past in defense of the ancient constitution and its liberties, they did so as practitioners of "forensic history." As such, they aimed at producing persuasive legal arguments, not at writing accurate history. Although for some contemporaries the ancient constitution "may have been an explanation of actual happenings, for most common lawyers, it was not" (13). In Reid's view, the failure of scholars to appreciate the difference between "forensic history" and modern professional history has led them mistakenly to condemn common lawyers for getting the history wrong. But, Reid insists, getting it right was not their goal. Nor, Reid continues, is this the only error made by modern scholars. In his words, "there is an idea currently rife among scholars of English history that the ancient constitution was not a dynamic device spurring the growth of liberty but a static shield for preserving the status quo. Put another way, it was an argument for conservative constitutionalism" (17). |
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From such an eminent authority, who has taught us so much about Anglo-American constitutionalism, this is a disappointing book. Much of it derives, often verbatim, from a chapter that Reid wrote in 1993 ("The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries," in The Roots of Liberty, ed. Ellis G. Sandoz, University of Missouri Press [1993], 147–232). References are little changed here, the book containing only eight works published since 1993, two of these by Reid himself. This neglect of current scholarship, especially on the English side, not only renders his work out-of-date but leads him to argue against certain positions that few, if any, historians now take. How differently the book could have read had Reid engaged with the recent work of Johann Sommerville (Royalists and Patriots, Longman, 1999), James Tubbs (The Common Law Mind, Johns Hopkins University Press, 2000), Glenn Burgess (Absolute Monarchy and the Stuart Constitution, Yale University Press, 1996), Paul Christianson (Discourse on History, Law, and Governance in the Public Career of John Selden, Toronto University Press, 1996), Richard J. Ross ("The Memorial Culture of Early Modern English Lawyers," Yale Journal of Law and the Humanities, 1998), and Alan Boyer, (Sir Edward Coke and the Elizabethan Age, Stanford University Press, 2003—though this may have appeared too late). Incorporating these nuanced, intelligent, and occasionally provocative interpretations of the writings of common lawyers could have added range and depth to Reid's treatment. Other relevant works, in particular, those of James Epstein (Radical Expressions, Oxford University Press, 1994), Melinda Zook (Radical Whigs and Conspiratorial Politics in Late Stuart England, Penn State Press, 1999), and the present reviewer (The Radical Face of the Ancient Constitution: St. Edward's "Laws" in Early Modern Political Thought, Cambridge University Press, 2001) would have served similarly. |
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If he had taken such research into account, Reid would have been reluctant to claim that current scholarship depicts the ancient constitution as necessarily conservative. Indeed, J. G. A. Pocock warned precisely against such a view when in 1985 he wrote "that there can be no greater error" than to assume that the ancient constitution was an inherently conservative construct (Virtue, Commerce and History, Cambridge University Press, 226). More recently, Zook, Epstein, and others have demonstrated precisely and at length how the ancient constitution served well to justify resistance, king-killing, deposition, and radical reform in general. |
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Scholarship has moved forward in other ways. There is now ample evidence that early modern common lawyers accepted as axiomatic the historical accuracy of the ancient constitution and its central tales. Although they disagreed about certain points, they nevertheless worked within a historical tradition that dated from the eleventh century. This tradition was anchored by respected medieval manuscripts that told stories of the Saxon character of the common law, parliaments, and the House of Commons. The printing of many of these sources in the late sixteenth- and early seventeenth-century publicized ancient constitutionalist accounts, in particular, those describing how these allegedly Saxon institutions survived the arrival of William the Conqueror and descended intact to the people of Stuart England. Most important of all, the historical validity of these medieval sources and their narratives was asserted by the leading legal scholars and common lawyers of the day, including William Lambarde, John Selden, Sir Henry Spelman, Sir Roger Owen, Sir John Dodderidge, William Hakewill, Sir Edward Coke, and Sir Roger Twysden. Thus, given the historical framework within which English common lawyers worked, "forensic history" turns out to be an analytical tool of doubtful utility. |
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| Janelle Greenberg
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| University of Pittsburgh |
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