In popular consciousness, archivists (when noticed at all, and not confused with Indiana Jones) are usually otherworldly, whey-faced individuals poring shortsightedly over mediaeval tomes, their institutional domains obscure, dusty spaces with little connection to the ‘real world.’ The central role of archives as repositories for important legal records is thereby often overlooked, but this function took on crucial significance in the English early modern constitutional crisis: the dispute between the absolutist Stuart monarchs and a Parliament intent on defending its rights under the ‘Ancient Constitution.’

“the involvement of English archives – both public and nominally private – in providing precedents for the constitutional-political struggles of the seventeenth century, and the direct involvement of archives-keepers in the latter, have never been examined at length and in depth.” (p. 1)

The Crown and Its Records, published in October 2023, is the first detailed investigation of the early modern English archival ‘system.’ The archival perspective reveals new information concerning this watershed in the Anglo-American constitutional tradition, a turning-point with contemporary relevance, since the Stuart monarchs exploited the permanent state of emergency created by war on the Continent and the threat of domestic religious terrorism to restrict political expression.

The extent to which the Parliament common-law jurists constructed their defence of ‘ancient freedoms’ using research in the publicly-accessible archives has been insufficiently explored or acknowledged. (This is perhaps in part because the influential Whig historians – who repetitively portrayed this episode as one of England’s Greatest Hits – themselves eschewed archives and archival research.) However, when they are read together against the background of the secondary sources, the primary sources (the parliamentary minutes, the legal-historical works of those involved, and the archives’ own internal papers) not only illuminate the nexus between high politics and archives in general, but they also illustrate in particular the role played by archives-keepers and archival precedents in ultimately securing the Tudor-era ‘Crown-in-Parliament’ and in forestalling the transition to absolutism that befell many other early modern European countries.

Part One of The Crown and Its Records investigates the history of the publicly-accessible repositories and the practical constraints on the Parliamentarians’ research. Despite the gradual centralisation of the English legal system in the twelfth century and the importance of ancient precedents in common law, the archives suffered from chaotic conditions, with sporadic attempts at reform by the Crown and Oliver Cromwell. Rodents, fire, flood, misfiling, and light-fingered statesmen all troubled Arthur Agarde, who supervised the records in the most prominent public archive, located in the Tower of London. Disorder intensified under Henry VIII: personal archives seized from disgraced statesmen like Thomas Cromwell (an intimidation tactic which also sought to find a post facto ground for their arrests, a prefiguring of the seventeenth-century habeas corpus controversies) were then combined with Henry’s own already disorganised papers. The untidy public repositories contrast ironically with the conditions of Sir Robert Cotton’s so-called ‘private library,’ actually a publicly-accessible reference archive used by statesmen, the monarch, lawyers, and historians, later nationalised by William of Orange and Queen Anne.

“‘why this bloody Business should be now again brought upon the Carpet, at near two Years Distance, is a Secret’” (Cobbett, wondering why Parliament had fastidiously produced and proclaimed the records of the Regicide so long after the fact, p. 97)

Archives and records were increasingly contested in the seventeenth century. In 1643 Parliament sequestered the position of Keeper of the Records in the Tower of London to the MP John Selden, a leading proponent of the common-law ‘Ancient Constitution.’ In late 1650 there was an apparent attempt by Parliament to retroactively legitimise the Regicide (and send a threatening message to Charles I’s son, now allied with the Scots against England) by ostentatiously deploying highly formalised court record-making procedures. The meticulous creation and endorsement of the ‘record’ – in the highly specific legal sense, in which a properly made court ‘record’ had supreme evidential value and authority – of the ‘trial’ implicitly represented the latter as a legitimate court proceeding and not, as was widely felt at the time, a kangaroo court. Political power-plays were expressed in further seizures of records in the 1640s, including of manuscripts belonging to Charles himself, as well as during the Restoration of Charles II, whose administration vengefully hunted down expropriated Interregnum records, particularly those associated with regicides. With the Glorious Revolution of 1688-89 the office of Keeper of the Records in the Tower of London was disputed between Tory and Whig interests, and following the Revolution a Tower archives-keeper, William Petyt, used his office to disseminate historically-based propaganda for his particular Whig vision of the ‘Ancient Constitution.’

Openness and Opposition: The Publicly Accessible Archives and the Constitutional Debates

In Part Two of the book the constitutional controversies and the accompanying archival research by the Parliamentary side are discussed, as well as their wider contexts (historical research in the Renaissance and Reformation, and the Society of Antiquaries; an increasingly repressive censorship system; and a legal system fragmented between civil and common law, and the everyman’s right of access to the ‘public records’).

Contrary to later historians’ complacency, it was neither obvious nor inevitable that the Parliamentary constitutional historians would eventually triumph over the Royalist side. Due to Tacitus’ influence, narrative histories were already read as allegorical political criticism and/or policy recommendations, but the practice of history became more dangerous during the Stuart era. With the introduction of the doctrine of constructive treason, the mere possession of documents interpretable as critical of the government was made an offence. Due to the protection afforded by Parliamentary privilege, Parliament became the only forum in which legal-historical arguments could be made against James I’s Divine Right dogmatism.

The connection between archives/archives-keepers and high politics in the constitutional crisis is examined through the biographies of Sir Edward Coke and the (inter alia) archives-keepers Sir Robert Cotton, John Selden, and William Prynne. Coke famously championed the common law and Parliament from 1611 as a judge and – after dismissal in 1616 for his inconvenient decisions – from 1621 as an MP. Coke was mostly responsible for the content of the 1621 Protestation against the Crown (using, among others, precedents previously unearthed by Cotton), asserting Parliament’s right to debate even prerogative matters. In reaction James arrested him and seized his private archive, in order to (a) unearth a justification for his arrest and probably (b) to prevent Coke from conducting further archival research on Parliament’s claims. Coke later bitterly complained to the Commons that three manuscripts, including (significantly) a catalogue of the most important Tower records, were never restored to him and that he would give £300 (approximately £37,000 today) for their return. The sanctity of private property, a recurrent theme in the Petition of Right debates, here takes on a new significance – connected to the issue of habeas corpus – in these repeated seizures of personal archives.

“a notable record, it cheers me to think of it […] It is worthy to be writ in letters of gold” (Coke, praising one of his favourite archival sources in Parliament, p. 205)

Coke was prominent in the Parliamentary debates concerning the drafting of the Petition of Right (1628). He portrayed the writ of habeas corpus as the instrument for the enforcement of the Magna Carta freedom against imprisonment without legem terrae (in turn interpreted as a reference to an exclusively common-law charge). In retribution for Coke’s ongoing exegesis of Magna Carta the Crown once again seized and searched his archival collection in 1631, repeating the action posthumously in 1634 after Coke had threatened Charles I with a definitive new commentary on the statute. (In 1641 the commentary was finally released; the Parliamentary interest voted its publication in commemoration of Strafford’s execution.)

Parliament’s orders to conduct constitutional research in the public archives, together with the work of its research committees, are investigated, evoking an overall impression of intense activity, especially in the Tower of London. The career of the Parliamentary researcher and Court advisor Sir Robert Cotton shows that his famous archival collection was both the key to his rapid social and political ascent, and a weapon that the Crown could turn against him. Its first seizure and closure by the Crown, together with his arrest, in 1615-16, were likely (in part) a coverup of the Crown’s covert marriage negotiations with Spain; Cotton was suspected of having given the Spanish ambassador access to secret government papers in his archive, and thus of high treason. The second imprisonment and archive seizure, in 1629, were probably punishment for providing Coke and Selden with precedents for the Petition of Right. The official charge was that Cotton had kept and circulated a pamphlet libellous of the Crown, and the archive remained sealed even after his amnesty, which is thought to have caused his death of a broken heart in 1631.

By contrast, John Selden was famous as a jurist, legal historian, Hebraist, and MP rather than in his (later) role as an archives-keeper. He developed a core doctrine of English constitutionalism (later associated with Burke), ‘continuity through change,’ reconciling ancientness with flexibility. For this he conducted meticulous research in the primary sources, including the Parliament rolls in the Tower of London. As an MP and Parliamentary researcher he is thought to have found precedents for the 1621 Protestation, which may be a reason why the Crown arrested him and confiscated his private archive of historical sources (in parallel with its seizure of Coke’s collection). His collection was only (partially) restored to him (with the exclusion of documents concerning ‘matters of state’) after outraged protest from the Lords, for whom Selden was excavating their historical judicial function.

As a defence attorney in the milestone 1627 Five Knights’ Case concerning unparliamentary revenue-raising, Selden unsuccessfully invoked habeas corpus as the legal remedy for imprisonment without charge, but the judges postponed delivering a judgment on the question of discretionary imprisonment and Selden then re-presented the case in Parliament, together with the evidence and new research from the Tower archive, to show that vague prerogative ‘reasons of state’ could never be used to justify an arrest. His revelation of the Crown’s attempt to illegally introduce a judgement in favour of prerogative imprisonment into the closed court roll provoked fury in Parliament: not only was the action itself a felony, but it also signalled to Parliament that the Crown had abandoned the rule of law. (The Royalist side later tit-for-tat accused Selden of having destroyed a record – a capital offence.)

This episode galvanised the Commons into rejecting prerogative imprisonment under all circumstances (even terrorism) and all revenue-raising without consent. In the famous joint conference with the Lords on ancient English liberties on the 7^th of April 1628, Selden was able to exclude putative contrary precedents as invalid on the ground that they did not fulfill the formalised record-making requirements to constitute legally-binding court ‘records.’ While Coke’s barnstorming speeches have lodged in historical memory, this episode was arguably more significant: Selden’s exclusion of rival precedents on the basis of their invalidity under court recordkeeping rules demonstrated that the weight of valid precedent lay on the Parliamentary side. (Rather than take his word for it, the MPs compared Selden’s copies of the cited records with the originals to check his arguments in his subsequent debate on the caselaw with the Attorney-General, and also archived these materials in addition to those used by the Commons in the Lords conference; throughout this session they were preoccupied with archiving their activities and research, to provide posterity with evidences of its ancient freedoms for future confrontations.)

The consensus that English legal history was a normative source for the present was reflected in the famous debates about the form of – and Royal assent to – the Petition of Right. There was euphoria in the Commons and London when Charles, having first provided a historically inappropriate reply to the Petition, finally gave the version regarded as necessary to turn it into a complete Act of Parliament. However, the Crown then used its prorogation of Parliament to suppress this version of the Petition and publish the first, wrong version. These and further outrages provoked a Commons rebellion to which Charles responded with a dissolution in March of 1629, arrests of Selden and other leaders for ‘sedition’ (unknown under common law), and seizure of Selden’s papers. The Crown exploited a technicality to deny the prisoners bail, and Selden’s imprisonment lasted until 1631.

From 1640 Selden was an MP for Oxford University, a moderate in the increasingly radicalised Long Parliament, attempting to avert the Civil War. From 1643 he was Keeper of the Records in the Tower, protecting the Cotton collection and other archives from plundering. He opposed the religious and political cleansing and the dissolution of Oxford and Cambridge. Following Charles’s trial in 1649 he withdrew from London and declined the request to write a constitution for the Republic.

Following the Restoration a completely different personality, William Prynne, was appointed Keeper of the Records in the Tower. Previously mutilated by the Crown for his religious pamphleteering, Prynne became a Royalist in 1648, producing historical propaganda for an Ancient Constitution which foregrounded the abolished Lords. Since the first extant archival source for the Commons was from 1265, Prynne concluded (following Robert Filmer) that it had not existed before then; ergo only the Lords could claim ‘immemoriality’ and therefore sovereignty, and the Commons could not abolish them. His enormous record catalogues concerning England’s Ancient Parliaments support this thesis with their repetitive, combative marginalia; they are the most extreme example of archival agitprop that the era can show, singularly unhelpful as research aids.

Secrecy and Autocracy: The State Paper Office

Part Three of the book explores the Crown’s ‘secret’ archive, the State Paper Office (SPO). While the publicly-accessible archives supported the Parliamentary interest, the SPO collected intelligence from informers abroad and at home (including furtive notes on Parliamentary debates). Its Keeper Sir Thomas Wilson continued working as a spy: assigned to lure Sir Walter Raleigh into self-incrimination, he then exploited Raleigh’s execution to accession his papers. Research requests (often politically charged) were handled extremely restrictively.

The contrast between the publicly-accessible archives, and the secret SPO together with contemporary Continental archival systems, suggests that archives are not neutral but serve democratising tendencies or the reverse, depending on whether they are open or closed. Like their Continental counterparts, early modern English archives played a central political role, arguably enhanced by the prominence of precedents in a common-law system. The intensive use of archives during this turning-point of constitutional history highlights their importance for civil society: the alert lawyers in Parliament exploited them to formulate arguments that would ultimately triumph in the Glorious Revolution, preserve Magna Carta, and prevent a shift to autocracy. The solidifying doctrine of binding precedent gave them determination and absolute certainty, while also spurring on their research and dramatically raising the stakes.

“The common-law mentality coloured perceptions of the records as […] the incarnations of traditional English liberties […] Possession of ancient records conferred great social prestige […] so that the seizure of records collections correspondingly represented a traumatic loss of status.” (p. 450)

The perceived liminality of archives has allowed many fascinating sources to slumber largely unnoticed for centuries. When these are finally examined in detail, the picture that emerges of English archives’ and archives-keepers’ intensive involvements in this important episode of constitutional struggle suggests – like the research already available for Continental Europe – that archives are not nearly so arcane as they have been portrayed.

Dr Isabel Taylor is Head of Archival Core Functions at the University of Hamburg Archives (email: isabel.taylor@uni-hamburg.de)

(Suggested citation: I. Taylor, ‘Not So Arcane After All: Archives and the Battle for ‘Ancient Freedoms’ in the Stuart Permanent State of Emergency’, U.K. Const. L. Blog (10th September 2024) (available at https://ukconstitutionallaw.org/))