The conviction that England’s legal and constitutional histories were substantially different than those of other European countries is relatively widespread. To substantiate this claim, many turn their attention to the seventeenth century, which they identify as a pivotal moment in this parting of ways. According to this portrait, it was during this period that a particular English understanding of law, a ‘common-law mind’, emerged, greatly enabling, among other things, important constitutional developments.1

Even before the century had ended, battle was commenced over how its momentous events would be remembered. During the years 1698–1700 a series of Roundhead memoirs and treatises – the ‘Whig canon’ – were printed. They were devoted to ‘attacking the maintenance of standing armies by the state, inveighing against priestcraft, and asserting the primacy of the ancient constitution’.1 The publisher responsible for the project was John Danby, working closely with the radical intellectual John Toland. For Danby and Toland, these works demonstrated that the revolutionary events of the century had been validated by and were a vindication of England’s ancient constitution (which now needed protection against the encroachments of William III). Fire was quickly returned by the Tory press, which began publishing Royalist memoirs and the like. It was in the midst of this that the first publication of Clarendon’s great History of the Rebellion commenced, with the first volume appearing in 1702. Clarendon’s son, Laurence Hyde, commended his father’s role ‘in preserving the constitution of our government entire’. English government repudiated political violence: ‘the nature of our excellent government hath provided, in the constitution of it, other remedies, in a Parliamentary way’ to preserve the Crown’s prerogative and the liberties of the people. In particular – and this was a topical subject given the rise of politics out of doors in the later Stuart period – the Whig habit of ‘appealing to the people out of Parliament as it were to a fourth estate of the realm’ was shown to be ‘just another way of undermining the ancient and true constitution’.2

Chapter 3 examines a group of nationalist historians based in northern India in the early 1920s. It shows how these historians used the trope of an ‘ancient constitution’ in order to find federalist forms of popular democracy.

George Garnett explores the roles of time and history in English Common Law, and how they gave the Common Law its political salience. He begins by picking apart F.W. Maitland’s celebrated contrast between the ‘logic of evidence’, deemed to be characteristic of historical understanding, and the ‘logic of authority’, deemed to be characteristic of legal understanding. Celebrated as this statement has been, Garnett contends that the almost – but crucially not quite – antithetical relationship has never been properly understood, and that it rests in part on Maitland’s misunderstanding of how legal development and continuity worked in the period before judicial precedent became central, in the late sixteenth century. The chapter is therefore concerned both with Maitland and with the peculiar problems encountered in tracing legal development and continuity in a system which was primarily customary rather than statutory. By extension, Garnett considers the implications for explaining the use of English legal history in political thinking, particularly in the seventeenth century. Emphasis is laid on Maitland’s distaste for Sir Edward Coke, then as now, the most influential Common Law jurist.

In this chapter, I find traces and articulations of the neo-Roman idea of freedom in an entirely different intellectual context than the one so eloquently analysed by Quentin Skinner in Liberty before Liberalism: the Francophone Counter-Revolution at the end of the eighteenth century. Like the neo-Romans, the counter-revolutionary authors studied here, François-Xavier de Feller and Charles-Alexandre de Calonne, stated that you can only be free as a citizen in a free state. However, a ‘free state’ for these authors did not mean popular self-government, but instead consisted of the monarchical rule of law and the moderate exercise of royal and clerical power. For these authors, the French Revolutionary Republic was the very opposite of a free state, a murderous despotism as well as anarchy without rules, that turned its subjects into slaves.

Chapter Three considers central questions in the French political thought of this era, regarding the status of the ‘ancient’ constitution, the power of election and deposition, and the divisive nature of debates about succession laws. It demonstrates the complex nature and range of responses to Hotman’s Francogallia in these contexts, as well as exploring the role of both the Estates General and the often-overlooked Paris parlement in conserving the constitution. It also considers the problem of ‘popular sovereignty’ and its implications for League political thought, establishing that the Leaguers were only interested in the elective, and deposing, powers of the ‘prudent multitude’ and not the wider populace. The double incorporation of the people, as a whole, into the commonwealth and the church is shown to be centrally important in these debates.

This chapter builds on the framework and context established in Chapter 1, which in many ways shaped the political experience of Henry St John, 1st Viscount Bolingbroke (1678–1751). It provides a revisionist interpretation by demonstrating that, rather than an anti-party writer, Bolingbroke is best understood as the promoter of a very specific party, a systematic parliamentary opposition in resistance to what he perceived to be a Court Whig faction in power. Drawing on all of Bolingbroke’s well-known works, as well as his lesser-known journalism and unpublished sources, the chapter shows how most of his writings were calculated to legitimise opposition in the shape of a specific kind of political party: the Country party.

This chapter demonstrates the importance of Paul de Rapin-Thoyras (1661–1725) for subsequent discussion of political parties in the eighteenth century. Before his famous Histoire d’Angleterre (1724–7), the Frenchman had already made a name for himself by writing a pamphlet entitled Une Dissertation sur les Whigs et les Torys (1717), which is the chief focus of this chapter, although the Histoire is also briefly surveyed and contextualised. The chapter examines Rapin’s intervention against the backdrop of his expulsion from France along with other Huguenots in 1685, the Glorious Revolution of 1688–9, and the Treaty of Utrecht of 1713. By focusing on Rapin’s Dissertation, this chapter demonstrates the centrality of religion and religious denominations in the construction of political parties. In political theory, Rapin’s Dissertation can be regarded as an intellectual milestone, as it was the first clear expression of the idea that balance between parties, as distinct from Machiavelli’s social orders, is recommendable as a way to achieve proper balance in a mixed constitution.