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A Godly Law? Bulstrode Whitelocke, Puritanism and the Common Law in Seventeenth-Century England
Published online by Cambridge University Press: 15 May 2020
Abstract
Debates surrounding both the church and the law played an important role in the conflicts that marked seventeenth-century England. Calls for reform of the law in the Civil Wars and Interregnum complicated the apparent relationship between puritanism and the common law, as the first fragmented and the second came under attack in the 1640s and 1650s. This article first analyses the common lawyer Bulstrode Whitelocke's historical and constitutional writings that defended the common law against demands for its reform and argued that its legitimacy derived from its origins in, and resemblances to, the law of Moses. Refraining from the radical application of this model employed by some contemporaries, Whitelocke instead turned to British history to make his case. This article then examines Whitelocke's views of the relationship between common law and ecclesiastical jurisdiction in his own day, showing how, both as a lawyer and as a puritan, he navigated laws demanding religious conformity. Whitelocke's career therefore demonstrates how lawyers could negotiate the fraught relationship between the church and the law in the aftermath of the reconfigurations provoked by the Civil Wars and Restoration.
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- Research Article
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- Copyright © Ecclesiastical History Society 2020
Footnotes
Versions of this article were presented to the EHS Summer Conference in Cambridge and the Comparative Legal History workshop at St Andrews in 2018. Quotations in it from the Whitelocke Papers at Longleat House are included by permission of the Marquess of Bath, Longleat House, Warminster, Wiltshire.
References
1 For surveys, see Veall, Donald, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970)Google Scholar; Worden, Blair, The Rump Parliament, 1648–1653 (Cambridge, 1974), 105–18CrossRefGoogle Scholar; and n. 13 below.
2 For a nuanced account of Elizabethan and early Stuart lawyers and ecclesiastical law, see Brooks, Christopher W., Law, Politics and Society in Early Modern England (Cambridge, 2008), 93–123Google Scholar; see also Ethan Shagan, ‘The English Inquisition: Constitutional Conflict and Ecclesiastical Law in the 1590s’, HistJ 47 (2004), 541–65; John Guy, ‘The “Imperial Crown” and the Liberty of the Subject: The English Constitution from Magna Carta to the Bill of Rights’, in Bonnelyn Young Kunze and Dwight D. Brautigam, eds, Court, Country and Culture: Essays on Early Modern British History in Honor of Perez Zagorin (Rochester, NY, 1992), 65–88. For older views relating to Weberian or Marxian frameworks, see David Little, Religion, Order, and Law: A Study in Pre-Revolutionary England (Oxford, 1970); Christopher Hill, Society and Puritanism in Pre-Revolutionary England (Harmondsworth, 1964).
3 Brooks, Law, Politics and Society, 123.
4 The Diary of Bulstrode Whitelocke, 1605–1675, ed. Ruth Spalding, RSEH n.s. 13 (Oxford, 1990), 56, 51. On this, see Blair Worden, ‘The “Diary” of Bulstrode Whitelocke’, EHR 108 (1993), 122–34; Fitzgibbons, Jonathan, ‘Rethinking the English Revolution of 1649’, HistJ 60 (2017), 889–914Google Scholar.
5 Diary, ed. Spalding, 58, 70, 98; BL, Add. MS 37343, fol. 131r.
6 Diary, ed. Spalding, 207.
7 For his biography, see Ruth Spalding, The Improbable Puritan: A Life of Bulstrode Whitelocke, 1605–1675 (London, 1975). This says little about Whitelocke's Restoration career and ideas, for which see my article, ‘Bulstrode Whitelocke and the Limits of Puritan Politics in Restoration England’, in Justin Champion et al., eds, Politics, Religion, and Ideas in Seventeenth- and Eighteenth-Century Britain (Woodbridge, 2019), 81–99.
8 The Book of the General Lauues and Libertyes concerning the Inhabitants of the Massachusets [sic] (Cambridge, MA, 1648), sig. A2r.
9 Ibid.; George Lee Haskins, Law and Authority in Early Massachusetts (New York, 1960).
10 [John Cotton], An Abstract of the Lawes of New England (London, 1641); for the title, see Haskins, Law and Authority, 124.
11 Woolrych, Austin, Commonwealth to Protectorate (Oxford, 1982), 271–3Google Scholar; Capp, Bernard, The Fifth Monarchy Men (London, 1972), 157–71Google Scholar, especially 164, 170–1; William Aspinwall, The Legislative Power (London, 1656), 30–1; Hugh Peters, Good Work for a Good Magistrate (London, 1651), 32.
12 Longleat House, Whitelocke Papers, vol. 10, fol. 80r; Prest, Wilfred, ‘Law Reform and Legal Education in Interregnum England’, HR 75 (2002), 112–22CrossRefGoogle Scholar.
13 On the Hale commission, see Mary Cotterell, ‘Interregnum Law Reform: The Hale Commission of 1652’, EHR 83 (1968), 689–704; Alan Cromartie, Sir Matthew Hale, 1609–1676: Law, Religion, and Natural Philosophy (Cambridge, 1995), 58–73; and items in n. 1 above.
14 Worden, Rump Parliament, 272; see also ibid. 111 on Ball.
15 Whitelocke Papers, vol. 10, fols 159r–160r; vol. 15, fol. 138v.
16 For his representation of this episode, see Whitelocke, Bulstrode, Memorials of the English Affairs: Or, an Historical Account of what passed from the Beginning of the Reign of King Charles the First, to King Charles the Second his Happy Restauration (London, 1682), 606Google Scholar; Prall, Stuart E., ‘Chancery Reform and the Puritan Revolution’, AJLH 6 (1962), 28–44Google Scholar.
17 Veall, Popular Movement, 122–3.
18 J. G. A. Pocock, The Ancient Constitution and the Feudal Law … A Reissue with a Retrospect (Cambridge, 1987); Janelle Greenberg, ‘The Confessor's Laws and the Radical Face of the Ancient Constitution’, EHR 104 (1989), 611–37; Brooks, Law, Politics and Society, 83–7, 121–3; Paul Christianson, ‘Young John Selden and the Ancient Constitution, c.1610–1618’, Proceedings of the American Philosophical Society 128 (1984), 271–315; Mark Goldie, ‘The Ancient Constitution and the Languages of Political Thought’, HistJ 62 (2019), 1–32.
19 Whitelocke, Memorials, 415–17; BL, Add. MS 37345, fol. 24r–v.
20 BL, Add. MS 37343, fol. 236v.
21 Most famously described by Christopher Hill, ‘The Norman Yoke’, in John Saville, ed., Democracy and the Labour Movement, Essays in Honour of Dona Torr (London, 1954), 11–67.
22 Whitelockes Notes uppon the Kings Writt for choosing Members of Parlement, ed. Charles Morton, 2 vols (London, 1768), 1: 408, 424, 427–8, 430–1.
23 Writt, ed. Morton, 1: 412; BL, Add. MS 37342, fol. 151r–v.
24 Writt, ed. Morton, 1: 430, 413; BL, Add. MS 37342, fol. 152r (ch. 28). Selden's comment comes on p. 17 of his ‘Notes on Fortescue’, in John Fortescue, De laudibus legem Angliae (London, 1616).
25 Felicity Heal, ‘What can King Lucius do for you? The Reformation and the Early British Church’, EHR 120 (2005), 593–614, quotation at 598.
26 BL, Add. MS 37342, fols 147r–153v, especially 149v, 151v–152v. Brooks, Law, Politics and Society, 107, notes that Beale and Morice cited Lucius when arguing about ex officio jurisdiction and incorporated consultation with lawyers into the narrative.
27 BL, Add. MS 4992, fols 5r, 7r.
28 Republican exclusivists (like Milton) read rabbinical commentaries on the book of Samuel as suggesting that all kingship was idolatrous: Eric Nelson, The Hebrew Republic (Cambridge, MA, 2010), 23–56. For more on Whitelocke's view on this, see my ‘Whitelocke and the Limits of Puritan Politics’.
29 Writt, ed. Morton, 2: 57; Michael Mendle, Dangerous Positions: Mixed Government, the Estates of the Realm, and the Making of the Answer to the XIX Propositions (University, AL, 1985).
30 BL, Add. MS 37342, fols 57r–58v.
31 Whitelocke Papers, vol. 5, fol. 230v.
32 Diary, ed. Spalding, 90–1, 92–3; BL, Add. MS 37343, fols 5r–7r.
33 BL, Add. MS 37343, fol. 131r.
34 Bulstrode Whitelocke, Essays Ecclesiastical and Civil (London, 1706); BL, Add. MS 21099.
35 Jacqueline Rose, Godly Kingship in Restoration England (Cambridge, 2011), 194–202.
36 Diary, ed. Spalding, 743, 753, 754, 832, 682; Larry J. Kreitzer, ‘William Kiffin and the Nonconformist Response to the Conventicle Act of 1670’, in idem, William Kiffin and his World, part 2 (Oxford, 2012), 173–204, at 169, 173, hints at the emphasis on procedural errors; for other Dissenters’ strategies, see Horle, Craig W., The Quakers and the English Legal System, 1660–1688 (Philadelphia, PA, 1988)CrossRefGoogle Scholar.
37 Cobbett's Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanors, 5 [1650–61] (London, 1810), cols 821–8 (Lev. 24: 12 for waiting on God); The Diary of Thomas Burton, ed. John Towill Rutt, 4 vols (London, 1828), 1: 32, 57–8; cf. Book of the General Lauues, 5.
38 Writt, ed. Morton, 1: 324–8; BL, Add. MS 37342, fols 129r–130v, 37v, 9r; BL, Add. MS 37341, fol. 28v; Diary, ed. Spalding, 762, 804.
39 Whitelocke Papers, vol. 27, fols 10v, 9r; for more on this work, see my ‘Whitelocke and the Limits of Puritan Politics’.
40 The licences were not recalled until 1675. The legal limit was five attendees from outside the household.
41 For details, see the Restoration years of the Diary and my ‘Whitelocke and the Limits of Puritan Politics’.
42 Whitelocke, Bulstrode, Quench not the Spirit, [ed. Penn, W.] (London, 1711)Google Scholar. Penn also edited the 1709 edition of the Memorials.