Fundamental Law in the Seventeenth Century
| DOI | 10.1111/j.1467-9248.1953.tb00839.x |
| Date | 01 June 1953 |
| Author | J. W. Gough |
| Published date | 01 June 1953 |
| Subject Matter | Article |
FUNDAMENTAL LAW
IN THE SEVENTEENTH CENTURY
J.
W.
GOUGH
Oriel
College,
Oxford
KING
JAMES
11,
so the Commons resolved on
28
January
1688/9,
had
been guilty of two main offences before he ‘withdrew himself out of the
kingdom’ and ‘abdicated the government’. One was ‘having endeavoured to
subvert the Constitution of the Kingdom, by breaking the original contract
between King and people’; the second was ‘by the advice of Jesuits and
other wicked persons, having violated the fundamental laws’. Neither
of
these charges was
a
novelty. The contract theory
of
government was
a
com-
monplace long before the end of the seventeenth century, and it was equally
common to frame accusations of unconstitutional activity in terms of
designs upon the fundamental laws. Charles
I
was charged with
‘a
wicked
design totally to subvert the ancient and fundamental laws and liberties
of
this nation, and in their place to introduce an arbitrary and tyrannical
government’. Eight years earlier Strafford’s attainder was drawn up in
almost identical terms, and the same phrase will be found in other political
trials
of
the period. Besides these it occurs constantly in legal treatises, poli-
tical pamphlets, speeches in Parliament, and elsewhere; in fact, the funda-
mental laws were on everyone’s lips, and their existence was generally taken
for granted. Every now and then some writer or speaker voiced doubts
about them, but their meaning was seldom ana1ysed.l
Considering how frequently the idea of fundamental law was appealed to
in the seventeenth century, it is rather remarkable to find that few English
historians have paid much regard to it. Those who have thought it worth
attention have generally treated it
unsympathetically,emphasizing
its vague-
ness and lack of definition, and treating it generally as an obstacle which
had to be got rid of before the constitution could settle down under the
recognized sovereignty of Parliament.* In marked contrast is the widespread
*
The poet Edmund Waller
is
said to have asked, during the discussion of the Bill for
Strafford’s attainder, what the fundamental laws were, only to be told that if he did not
know
that, he had no business to sit in the House
(S.
R.
Gardiner,
History
of
England
1603-
1642,
ix.
336,
quoting D’Ewes’s Diary). Among others who were sceptical about fundamental
laws-naturally enough, for they were incompatible with
his
doctrine of sovereignty-was
Hobbes
(Levinthan,
c.
26,
ad
fin.).
Cf.
J.
W. Allen,
English
Political
Thought
1603-1660,
i.
(1938),
3,
28,
364,
387,
&C.;
Political
Studies.
Vol.
I,
No.
2
(1953,
162-741.
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