Artificial antiquity - Weekly Worker

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The creation of a new constitution is not only relevant to social transition. It is fundamental, argues Mike Macnair

In the first article in this series last week,1 I referred briefly to the continued modern political weight of the idea of the British ‘ancient constitution’, and offered critiques of Linda Colley’s argument in The gun, the ship and the pen that written constitutions are the product purely of war mobilisation, and of Samuel P Huntington’s argument that the US constitution is ‘Tudor’ - which Dan Lazare referred to in interpreting the January 6 2021 invasion of the Capitol by far-rightist rioters.2

I concluded that Bradley Mayer was right to characterise the US constitution as ‘Whig’, as opposed to ‘Tudor’.3 I said there that there would be a second article, but in fact it turns out there will need to be three; this one on comrade Mayer’s arguments, and the next to develop my own positive view of the issue.

Comrade Mayer still thinks that a ‘Whig’ constitution is ‘ancien régime’. He argues partly on the basis of JGA Pocock’s 1975 book, The Machiavellian moment, and historians influenced by Pocock (and precursors, in a limited sense, of Pocock’s argument, like Caroline Robbins’ 1959 The eighteenth century Commonwealthman). But his argument is also grounded, secondly, on direct narrative of English and north American colonial history; and, thirdly, on a theory that Britain was “an early modern commercial - not industrial - state” and 18th century wage labour was “pre-capitalist”.

He adds that after the American revolution

This Whig polity was further transformed in the political revolution that extended the franchise to all white men, giving rise in the 1830s to the ‘Jacksonian’ system of mass politics that remains at the foundation of the US political regime to this day.

And that there have since then been “accretions” of the growth of the civil and military state bureaucracy, and (since the rise of railways and telegraphs) of oligopolistic commercial mass media.4

As far as the “accretions” are concerned, property qualifications for voting were not a Whig consensus position. In 18th century England they were debated and varied from constituency to constituency, and in immediate post-revolutionary America they varied from state to state.5 Political management through promoting press oligopoly (as a means of preventing what is now called ‘fake news’) began in England in the reign of Queen Anne (1702-14), and commercial advertising was also widespread in the 18th century, and was used as part of newspapers’ funding.6 The expansion of the state bureaucracy is also visible in 18th century England, particularly in connection with taxation (excisemen, etc). In policing, behind the superficial appearance of conscript constables, professional hired ‘substitutes’ and for-reward ‘thief-takers’ began to shift in mid-century London to state-waged ‘Bow Street Runners’.7 The early US state had softer targets (native Americans) for its main enemies, compared to Britain’s ‘long century’ of global wars with France; as US aspirations became more global after the Civil War, so the state bureaucracy also grew - as also happened in Britain, here in response to 19th century struggles over the franchise.8

On the other hand, all three elements of the core argument for ‘antiquity’ are, I think, problematic. Pocock’s methodology and presuppositions are a form of the Tory interpretation of history. The narrative element is (slightly) misleading. The case for ‘commercial, not industrial’ has some basis in Marx’s Capital volume 3, but the idea is actually unhelpful. From this point, it becomes possible to develop what can be a starting point for understanding both transition, and the early and modern roles of ‘ancient constitutionalism’ - which I will do in a third article.


Pocock is a writer on historiography: that is, on the conceptions of history expressed in the writing of past historians. This is the character of his first book, The ancient constitution and the feudal law (1957); it is the character of his six-volume magnum opus, Barbarism and religion on Edmund Gibbon and his Decline and fall of the Roman empire (1999-2015). It is also the character of The Machiavellian moment.

It has to be added that Pocock’s history of historiography is very strongly marked by anti-Whiggism. He chose Herbert Butterfield as his PhD supervisor, presumably on the basis of Butterfield’s famous Whig interpretation of history, and acknowledged in The ancient constitution and the feudal law additional supervision from JH Plumb. At that time Plumb was a communist or recent ex-communist, but also then still a Namierite critic of ‘Whig history’.9 The ancient constitution is a debunking book directed against Edward Coke and against the original Whig history writers of the later 17th century, who are taken to have had less understanding of history than their Tory opponents.

The Machiavellian moment remains within the same frame. What is being done is to debunk Whig/ liberal history, by detaching the early moderns - including the American founders - from liberalism, in turn by attaching them to the ‘virtue-based’ republicanism of Renaissance Italy.

There is also a common methodology. This is to write ‘history of ideas’ by ‘contextualising’ the ideas of the canonical authors studied. (They are ‘canonical’ in the sense that they are or might be included in an undergraduate ‘Western civilisation’ or ‘Plato to Nato’ course.) But ‘contextualising’ here has a narrow and unusual meaning. What Pocock does is to take prior canonical writers as defining a ‘language’ beyond which contemporaries cannot think.10 This is then the ‘context’. Untheorised social practices (like the relative marginalisation of manorial organisation of agricultural production and the increase of wage-dependence in early modern England) are excluded by the conception of linguistic determination from the class of relevant evidence for the interpretation of the author studied. Similarly excluded is the evidence of current ideas in ephemera (newspaper/journal articles; speeches reported in diaries; arguments in reported cases) and in non-canonical writers. The result is a ‘great men’ narrative, which is relatively immune to empirical critique: The ancient constitution continues to be extensively relied on, although later historians have shown that its ‘famous men’ focus and its exclusion of broader contexts produce a misleading closure of the ‘universe of discourse’; and the same is arguably true of The Machiavellian moment.11

This is a general criticism of Pocock’s method. Its relevance to comrade Mayer’s account of the US constitution is that, like Huntington, but by a different route, Pocock’s account pushes the thought of the US founders backwards into the domain of the pre-modern.


Pocock’s ‘history of ideas’ links the US founders to James Harrington writing in the 1650s - and behind him to Florentine writers of the 15th-16th century. Comrade Mayer in effect adopts this dating by confusing the 1650s Cromwellians with the late 1670s-early 1800s Whigs. To put his points into chronological order, he writes:

The long run of the English revolutionary cycle, and of the century that followed 1688, demonstrate that Whig politics of the 18th century supremacy were an early modern bourgeois politics. That of the Tudors was of a late Baroque feudal polity, a superstructure out of joint with its real social-economic basis emergent after the dissolution of serfdom in the 14th century, followed by the collapse of an independent high aristocracy in the War of the Roses in the 15th century.

The first sentence is clearly correct. The second is problematic. “Late Baroque” is obscure, though I guess the reference is to Perry Anderson’s Lineages of the absolutist state (1974).12 That the early Tudor state was feudal is clear enough; the constitutional effects of the Reformation between 1533 and 1559 undermined the clerical power, which was an essential component of feudalism, but did not abolish it; the Elizabethan and early-Stuart regime retained the broad jurisdiction of the church under monarchical control.

There was also significant persistence of ‘live’ feudal relations in the countryside. Villeinage by blood (serfdom) was dying, but not yet quite dead. Manorial courts were ‘live’ in controlling land management, although in the early Stuart period they required central-state support from Star Chamber. The feudal incidents (relief, wardship, etc) were still live and, in fact, revived - though mainly for the benefit of the crown rather than lesser lords - by virtue of the terms on which former monastic land was granted out after the dissolutions of monasteries in the 1530s and chantries, etc, in the 1540s, and by the Statutes of Uses 1536 and of Wills 1540 and the operation of the Court of Wards.13 Feudal forms of surplus extraction, indeed, persisted in the north of England into the 18th century.14

Comrade Mayer says:

Parliamentary and army-navy Whigs supported the Cromwellian counterrevolution and, when their Caribbean designs failed, sponsored the Restoration - a ‘Whig Restoration’ - of Charles II, who ruled only with their assent. This was demonstrated later by the Shaftesbury Whig deposition of his brother, James II, in 1688, when he sought to abrogate the Restoration settlement.

This is mistaken in several ways. ‘Whigs’ in 1650s is anachronistic (the party took its name - originally an insult from its opponents - from Scots Covenanting rebels of the 1660s-70s). The Whig party that developed in 1679-83 included not only former Cromwellians (notably the Earl of Shaftesbury), but also anti-Cromwellian republicans (eg, Algernon Sidney) and people who fought on the Royalist side in the Civil War (notably the Duke of Buckingham, Prince Rupert).

Secondly, it is problematic to call Cromwell’s coup a ‘counterrevolution’, since its purpose was to prevent the Rump calling elections on a largely unreformed franchise (which would have led to the restoration of the state church), and to pursue a forward Protestant foreign policy (as opposed to the Rump’s commercial-interest war against the Protestant Netherlands). This is not analogous to Stalin: a more analogous idea would be the ‘alternate history’ idea of Trotsky making a military coup in 1923-24.15 Although the failure of the ‘Western Design’ in 1654-55 produced a crisis of confidence, the Cromwellian regime did not fall until Cromwell’s death in 1658 led to a succession crisis, while plebeian unrest revived in the form of Quakerism, pushing the gentry and urban upper classes towards ‘restoration of order’.

The Restoration was not Whig, though some later Whigs were included on the ‘winning side’; it is better seen as creating a sort of ‘dual power’. Charles II lost the feudal revenue (paid for by the excise duties on alcohol) and the right to unilaterally create new courts, but was given back the right to summon and dismiss parliaments and control how long they sat for, and parliament definitely did not sit all the time under him; and the ‘Cavalier’ parliament (elected 1661, with the next election in 1679) attempted to give him back the full apparatus of church power.16 He aspired to more, as did his brother, and a full restoration of feudal power, by internal action with French backing, was certainly possible down to 1688.

And 1688 was the common action of both Tories and Whigs - but actually effected by a full-scale invasion by the Dutch regular army, being part of a ‘cold war’ between Catholic-feudal France and Protestant-capitalist Netherlands.17 (Going back to 20th century analogies like Trotsky as a possible Soviet Cromwell, we might imagine James II as Alexander Dubček, William III as Leonid Brezhnev and ‘Williamite Tory’ leader the Earl of Danby as Gustáv Husák - but the analogy would need an ‘alternate history’ of eventual Soviet victory, rather than the collapse of 1989-91.)

These may seem like ‘picky’ points. But the overall conclusions from them are twofold. First, though 1640-60 is important, 1688 is decisive for the creation of a capitalist constitution. Second, we should not be too quick to ‘flatten’ the transition, thereby creating a solid intermediate stage between feudalism and capitalism, in which feudalism is over, but capitalism properly so-called not yet present (as, for example, a “commercial capitalism” in the style of Mikhail Pokrovsky’s narrative of Russian history).18 Rather, the social transition is, I would argue, a prolonged period of interpenetrated presence of both feudal and capitalist modes of action. During this transition the overthrow of the old state constitutional order is decisive as blocking regression as much as, to paraphrase Marx, setting free the elements of the new bourgeois society, with which the old collapsing feudal society itself is pregnant.19

Free labour

Comrade Mayer writes:

Together with the state, [the constitution and Jacksonian democracy] both predate the emergence of industrial capitalism and its mass working class, and to this extent also form an ancien régime in a different kind of historical disjuncture today, between a majority non-white and feminised working class social economy, and a superstructure established and originally governed by a now archaic class alliance of slave-owning British-American merchants and European settler farmers. Crucially this disjuncture is not a contradiction with a residual, late feudal Tudor state and regime, but with an early modern commercial - and not industrial - bourgeois state and regime.

A footnote adverts to the “the still ‘pre-capitalist’ status of wage labour in the colonial period and early republic”, citing RJ Steinfeld’s 1991 The invention of free labor. Both these points involve the issue of the nature of capitalism.

The ‘free labour’ point opens a large can of worms - the debate about how far ‘free labour’ is a developmental product of capitalism as such or is rather a result of class and political struggles, which have at various times and to various extents limited capital’s right to use forced labour.20 In this connection, though not as part of this debate, I attempted in 2006 to address free movement of labour as involving contradictory imperatives for capital.21

Capital is the circuit, money-commodity-production-commodity-money (M-C-P-Cʹ-Mʹ). Capitalism in the sense in which Marx described it in Capital (arguably actually a counter-factual ‘purified’ capitalism22) involves the ‘production’ stage conducted using wage-labour. It is then a presupposition of the capital relation that there should be, somewhere in the system within which capital operates, some free labour: that is, labour that is freely available to capital.

This means labour which in the first place is not owned outright by the members of some other ruling class (in which case the capitalist would have to pay for the rent of labour-power at a monopoly price), secondly, which cannot be simply forcibly enslaved (which would again result in the slave-owners charging a monopoly price for the rent of labour-power), and, thirdly, which has been freed from pre-capitalist peasants’ and artisans’ individual and collective proprietary control of means of production.

Then the consequence is that particular capitals have very clear interests in restricting labour mobility - but other capitals have interests in promoting it. Capital itself is inherently mobile in the money form; but the ‘production stage’ may be tied down, and this is all the more true for small businesses and farmers. And so on. There is as a result probably a long-term trend towards wage-labour replacing labour, for which capital has to pay a capital sum upfront or share value extracted with an exploiting owner; but this trend may locally or for a significant period be overridden by circumstances which either cheapen forms of labour coercion (like immigration controls as supporting ‘modern slavery’), or make the ‘pure’ wage mechanism unattractive to capital for one reason or another.23


Were the American revolutionaries in confrontation with Britain as an “early modern commercial - and not industrial - bourgeois state and regime”? There is a Marxist basis for this contrast, but it is, in fact, unhelpful. It is derived from Marx’s casual comments about ‘merchant capital’, especially in Capital volume 3, chapter 20.24

Marx’s argument here is that merchant capital, by organising exchange between ‘undeveloped’ countries and regions, stimulates handicraft production and later manufacture at both ends of the transaction; as a result, industry emerges in these countries and regions, and merchant capital finally become subordinated to industrial capital. In England Marx dates this subordination to the repeal of the Corn Laws (1846). In the context of this argument there is a great deal of talk about the unproductive character of merchant capital, its connection with cheating, coercion, etc.

At the very beginning of the argument, however, Marx says that “nothing could be more absurd than to regard merchant’s capital ... as a particular form of industrial capital, such as, say, mining, agriculture, cattle-raising, manufacture, transport ...” (emphasis added). These are productive activities. Merchant capital, in contrast, is concerned specially with circulation.

But, when we consider “merchant capital” down to the modern era, it is precisely connected with transport, whether by pack-train, wagons or - most importantly - ships. This is true down to the era of the steamship lines, which required more capitalisation than mercantile shipping could supply. And transport is indeed - as Marx indicates in the quote - a productive activity. It moves material goods from places where they have no use-value to places where they do, quite irrespective of the exchange-value aspect of the operation. The same is true of warehousing, which moves goods for times where they have no use-value to times where they do. The circuit of the shipper-merchant or warehouser-merchant’s capital is not, as Marx suggests in places in the chapter, M-C-M', but M-C-P-C'-M'.

The question, then, is what is new about the impact of commerce-shipping in the later medieval to early modern period. The answer is at least partly a question of scale. The luxury trade supported by the surplus available to the varied medieval elites of Eurasia was small-scale and could be transported and warehoused by family and domestic slave-labour. Larger-scale transportation remained a state activity. In contrast, late medieval and early modern shipping begins to move bulk raw materials to be worked up elsewhere.

In doing so, it reshaped the economies both of the raw material producer ‘periphery’ (towards plantation slavery in the Atlantic and ‘second serfdom’ in eastern Europe), and of the handicraft or manufacturing ‘core’ (toward ‘putting out’ or the ‘formal subsumption of labour to capital’). What made this possible was larger ships, built by and sailed by wage-labourers engaged in cooperative activity under capitalist managers: a ‘real subsumption of labour to capital’. Capitalism in its modern sense, accompanied by proletarianisation, spreads outwards from - mainly - the shipping industry.25

When the Earl of Shaftesbury was reported to have said in 1682 that he had the backing of 10,000 “brisk boys” from Wapping to fight Charles II’s crackdown on the opposition, what he meant was (waged) dockers and seamen. The ‘not industrial’ 18th century British state was then characterised by a large shipping industry.26 Related was a significant arms industry, as Priya Satia has recently shown.27 Small-arms could perhaps be ‘artisanal’; cannon-founding had to be industrial in scale. I have left aside here the question of the movement into wage-labour more generally, and from agriculture into industry; a recent account argues that in England

Structural change accelerated from before the middle of the 17th century and by the early 18th century only around 45% of the male labour force were still in agriculture - a remarkably low share compared to other countries in that period.28

I revert here to the point made earlier, in connection with the late persistence of aspects of feudalism. It is a mistake to construct an intermediate stage, in which feudalism is over and capitalism ‘proper’ has not yet begun. Rather, the transition takes the form of a prolonged period of interpenetrated, conflicting, forms: elements of both persisting feudalism and full capitalism. It is only at the moment of apogee of a mode of production that we can really speak of pure forms, and even then with considerable caution. The point was already made by Friedrich Engels in 1895:

Did feudalism ever correspond to its concept? Founded in the kingdom of the West Franks, further developed in Normandy by the Norwegian conquerors, its formation continued by the French Norsemen in England and southern Italy, it came nearest to its concept - in Jerusalem, in the kingdom of a day, which in the Assises de Jerusalem left behind it the most classic expression of the feudal order. Was this order therefore a fiction, because it only achieved a short-lived existence in full classical form in Palestine, and even that mostly only on paper?29

Analogously, Evgeny Preobrazhensky argued on the basis of the Russian experience of the 1920s that what would follow the creation of the dictatorship of the proletariat would be a contradictory combination of features of remaining-capitalism and beginning-socialism - a point which Hillel Ticktin has also developed.30

A more or less prolonged period of transition, involving a contradictory combination of elements of the old declining order and of the rising new, which begins before a state overthrow and continues for a considerable time after it, necessarily raises the question why the state overthrow - and hence the creation of a new constitution - is relevant to the social transition at all.

It is, in fact, fundamental to it; but to this issue we will have to return in the third article.

  1. ‘Constitutions ancient and modern’, September 2:↩︎

  2. D Lazare, ‘Trump’s “march on Rome”’ Weekly Worker January 14 (↩︎

  3. ; B Mayer, ‘Old regime is cracking apart’ Weekly Worker January 28 (↩︎

  4. Ibid.↩︎

  5. Varied in England: see, for example, Debated in England:; cf also Olive v Ingram (1738-39) 7 Mod 263, 2 Stra 1114 (women’s suffrage debated). Varied in the post-revolutionary US states:↩︎

  6. Press: R Deazley Origin of the right to copy Oxford 2004, chapter 2. Advertising: eg, Jill Campbell, ‘Domestic intelligence: newspaper advertising and the 18th century novel’ Yale Journal of Criticism Vol 15 (2002), pp251-91; preceded by 17th century Netherlands: (April 2020).↩︎

  7. Tax and bureaucracy: eg, J Brewer The sinews of power: war, money and the English state 1689-1783 [1989] Abingdon 2014. Policing: eg, J Beattie Policing and punishment in London 1660-1750: urban crime and the limits of terror Oxford 2001.↩︎

  8. See M Macnair, ‘On reducing undue trust in judges’ King’s Law Journal Vol 31 (2020), pp41-58.↩︎

  9. JGA Pocock The ancient constitution and the feudal law: a study of English historical thought in the 17th century: a reissue with a retrospect Cambridge 1987, preface to the first edition, pxiv; on Plumb’s evolution, see D Cannadine, ‘Plumb, John Harold, 1911-2001’ ( ‘Namierite’ from Lewis Namier (1888-1960) and in particular his Structure of politics at the accession of George III (1929), which argued (to simplify) that 18th century politics was dominated by non-ideological aristocratic patronage networks. It was perfectly possible to be a leftwinger and an opponent of ‘Whig history’ in the 1950s, since leftism was widely thought of in terms of expert planning rather than political democracy.↩︎

  10. Eg, JGA Pocock, ‘The reconstruction of discourse: towards the historiography of political thought’ MLN Vol 96 (1981), pp959-80; for a critique of this line (among several), see, for example, M Bevir, ‘The errors of linguistic contextualism’ History and Theory Vol 31 (1992), pp276-98.↩︎

  11. Exposures of limits in The ancient constitution: eg, H Pawlisch Sir John Davies and the conquest of Ireland Cambridge 1985, chapter 9; CW Brooks Law, politics and society in early modern England Cambridge 2008. In The Machiavellian moment: eg, MP Zuckert Natural rights and the new republicanism Princeton 1998.↩︎

  12. NLB. Cf also B Stollberg-Rilinger, ‘The Baroque State’ in JD Lyons (ed) The Oxford handbook of the Baroque Oxford 2019, pp824-841 (cited here from Oxford Handbooks Online).↩︎

  13. Villeinage: JH Baker, ‘Personal liberty under the common law, 1200-1600’ in The common law tradition London 2000, chapter 18, pp329-33. Manorial courts: J Goodacre, The transformation of a peasant economy London 1994, chapter 3. Feudal incidents: HE Bell An introduction to the history and records of the court of wards and liveries Cambridge 1953.↩︎

  14. CE Searle, ‘Custom, class conflict and agrarian capitalism: the Cumbrian customary economy in the 18th century’ (1986) Past & Present No110, pp106-33.↩︎

  15. For the background to the coup, see B Worden The rump parliament 1648-1653 Cambridge 2008.↩︎

  16. Western Design: CG Pestana, ‘English character and the fiasco of the Western Design’ Early American Studies Vol 3 (2005), pp1-31. Restoration: R Hutton The Restoration Oxford 1985; and compare T Harris Revolution: the great crisis of the British monarchy, 1685-1720 London 2007.↩︎

  17. On France, D Parker Class and state in ancien regime France Abingdon 1996; on the Netherlands, J De Vries and A van der Woude The first modern economy: success, failure and perseverance of the Dutch economy, 1500-1815 Cambridge 1997; cf also S Pincus 1688: the first modern revolution Yale 2009.↩︎

  18. I have discussed Pokrovsky in reviewing Boris Kagarlitsky’s Empire of the periphery: ‘Studying the past to grasp the future’ Weekly Worker April 2 2009 (, and ‘Marxism and the inequality of nations’, April 9 2009 (, and in a different way in ‘Against the state, not just the ruling class’ Weekly Worker June 10 2010 ( There is an alternative approach in J Banaji A brief history of commercial capitalism London 2020.↩︎

  19. The phrase I have modified here is in The civil war in France:↩︎

  20. A recent intervention, with a lot of the extensive literature cited, is T Brass, ‘Twisted trajectories, curious chronologies: revisiting the unfree labour debate’ (2021) Critical Sociology Onlinefirst:↩︎

  21. ‘Fortress the west’ Yürükoğlu Memorial lecture, 2006:↩︎

  22. John Harrison in Marxist economics for socialists London 1978, chapter 2, argued that this was the character of the treatment of simple commodity production in the early part of Capital. But, since the rest of Capital is built on this treatment, it would logically follow that the whole text is to be read in this way; and this certainly avoids some problems of interpretation.↩︎

  23. See, for example, T Brass, ‘Some observations on unfree labour, capitalist restructuring, and deproletarianization’ International Review of Social History Vol 39 (1994), pp255-75; C Brown and M van der Linden, ‘Shifting boundaries between free and unfree labor: introduction’ International Labor and Working Class History No78 (2010), pp4-11.↩︎


  25. For a relatively late stage of the process, cf P Linebaugh and M Rediker The many-headed hydra London 2002. A parallel source of ‘real subsumption of labour to capital’ was the building trade, reflected among other features in the very early piece of anti-trade union legislation, the Confederacies of Masons Act 1425. Cf J Janssen, ‘On construction in the rise of wage labour 1349-1563’: But stonemasonry (as opposed to carpenter-built buildings) was in the late Middle Ages a luxury or state (fortifications) product, not one apt to reshape other sectors, as shipping did.↩︎

  26. R Davis The rise of the English shipping industry Newton Abbot 1962.↩︎

  27. P Satia Empire of guns: the violent making of the industrial revolution London 2019.↩︎

  28. P Wallis, J Colson and D Chilosi, ‘Structural change and economic growth in the British economy before the Industrial Revolution, 1500-1800’ Journal of Economic History Vol 78 (2018), pp862-903 (↩︎

  29. Engels to Conrad Schmidt, March 12 1895:↩︎

  30. RB Day, ‘Preobrazhensky and the theory of the transition period’ Soviet Studies Vol 27 (1975), pp196-219; H Ticktin, ‘The problem is market socialism’ in D Schweickart, J Lawler, H Ticktin and B Ollman Market socialism: the debate among socialists Abingdon 1998, chapter 3.↩︎