The Constitution An American or an English Constitution? 6-B&C



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The Constitution

An American or an English Constitution?

6-B&C



As Americans, we all know the story of the creation of the United States Constitution. It, along with the Bill of Rights and subsequent Amendments form the political, legislative, and judicial framework in which we live. But what about the English Constitution? What “document” serves the same purpose in the United Kingdom?







?








While England has no formal written Constitution, the Magna Carta (1215) + Petition of Right (1628) + Bill of Rights (1689) collectively make up a kind of Constitution of England.




Unlike the United States Constitution, which is a single written document, the British constitution is made up of all acts of Parliament over the centuries. It also includes documents such as the Magna Carta [1215] and Bill of Rights [1689], as well as unwritten traditions that protect citizens’ rights.”1 A summary of landmark legislation appears below.

Magna Carta – June 15, 1215



King John (r. 1199-1216) signs the Magna Carta (right) or the Great Charter




During the last years of John's reign, the aristocracy "commenced a series of more orderly efforts [than during the wild years of Stephen's reign, 1135-1154] to secure a share in the government."2

Warren Hollister suggests that while the barons could tolerate royal cruelty or ruthlessness (they had with previous kings), they could not tolerate inconsistent policy or weak military performance. It is this that lost John baronial support.

General Background to Signing of Magna Carta







Stephen Langton (c. 1155-1228), Archbishop of Canterbury

Resistance of the Clergy


Langton (left) was the guiding spirit of the baronial movement to check royal absolutism.
John's Renewed Attempts at Overseas Conquest

With relief from the threat of French invasion, John set about to reconquer his territories in France.



At Bouvines (right) in the Flanders marshes, in July 1214, Philip Augustus (1165-1223, above) routed Otto, the ally of King John.




"Philip's victory extinguished John's last hope of recovering the lost continental lands.”3

Failure of John’s French campaign



Not only had John taxed England for financing his wars; he had failed to give the kingdom any glory in return. Map to right shows the regions in western France claimed by John’s royal family, the Plantaganets.



"Ten years of savage taxation had been for nothing, and he [John] returned to England to face a sullen baronage. . . . His prestige had never been lower, and many of his tax-ridden English barons were ready for rebellion." 4



John’s reign is the setting for the Robin Hood legends (above). Walt Disney caricature of John (below):








Barons Occupy London Easter Week in 1215

"Not one of the purely baronial movements secured lasting results, but they helped to pave the way for the rise of Parliament."5





Signing of Magna Carta at Runnymede—June 15, 1215


The Magna Carta


Its 63 articles—a series of demands from the barons— "did not indulge in political philosophy or in sweeping generalizations about the freedom of the people," but "dealt with immediate, specific problems. . . covering a wide range of subjects. The most numerous items centered around questions of feudal dues, law courts, and administrative abuses." In particular, it reflected a concern to "keep the king within reasonable bounds in the matter of reliefs, wardships, aids, scutage, and similar points where he had abused his relations with his vassals."6


King John’s Royal Seal


Magna Carta—A Guarantee of Liberty vs. A Selfish Feudal Document

"Over a third of the sixty-three clauses. . . set out the exact feudal obligations of the king's vassals. . . . Another third was directed against abuses in the royal courts, particularly at John's practice of seizing a defendant's property before judgment was made against him."7



Some historians have described the Magna Carta as "a monument to class selfishness."8

Magna Carta "used to be regarded as the fountainhead of English liberty and the bulwark of constitutional monarchy. Some historians, reacting against this naive view, have described Magna Carta as a reactionary document—an assertion of feudal particularism at the expense of the enlightened Angevin [Plantagenet] monarchy. In reality, the Great Charter was both feudal and constitutional. It looked backward and also pointed forward. It was a step in the transition from the ancient Germanic notion of sacred custom, and the feudal idea of mutual contractual rights and obligations, to the modern concept of limited monarchy and government under the law. . . . Baronial rights and privileges were the chief items of business in Magna Carta."9




The forces that produced Magna Carta included “military misfortune; the rising expenses of government, more effective administration, producing more inventive and ruthless means of collecting taxes; and a growing conception on the part of powerful subjects of their specific legal rights.”10





It appears that the barons were primarily concerned with safeguarding their own selfish interests. . . however, some articles extend privileges to other non-baronial classes.



Magna Carta’s Modern Principles

12th Article—A Germ of Parliament?

"No scutage nor aid shall be levied in our kingdom, unless by common consent of our kingdom."

This was later stretched to imply "no taxation without representation"—but "common consent" here was that of the leading barons and prelate who represented themselves rather than "the people."

39th Article—Right to Jury Trial?

Indicated no freeman could be arrested or molested "unless by lawful judgment of his peers" and "by the law of the land."

Later, people read into this the guarantee of a jury trial for everyone; in fact, it was a reactionary feudal protests against royal courts. Barons did not regard royal judges as peers or social equals.

Principle of King Being Subject to the Law

"Political philosophers of the twelfth and thirteenth centuries were drawing sharp distinctions between the king who abided by the law and the tyrant who abused and ignored it. In Magna Carta these notions received practical expression."11 See box below.




"It was with practical building blocks such as these that the structure of the English limited monarchy was built. . . . The search for some institutional means of incorporating the nobility into the royal government was to occupy England for centuries to come. . . . In later centuries [after the 17th] it came to be regarded as a document fundamental to the protection of individual liberty. This was far from the intention of its original drafters, but it is a tribute to the quality of their work. 'It was adaptable.'"12


John signs Magna Carta


Magna Carta supports the notion that:

  • Certain laws and customs are greater than the authority of the king

  • If the king failed to observe these laws, the people reserved the right to make him do so



Notion of "Community of the Realm"


"John's assent to this document was an acceptance of the principle that he and all Englishmen belonged to a community of law and that the law governed the ruler as well as the ruled. . . . . It was in the years 1189 to 1327 that England became the first European power to work out a concept of government, the 'community of the realm,' which significantly broadened participation in government and altered relationships between king and subject. . . . Should a king not satisfy the norms of good government, he could be restrained by the community."13


"Regarded in that general light, Magna Carta quite rightly ranks among the most important documents of history."14
John's Abrogation of Magna Carta

About three months after Runnymede, war between John and the barons broke out. John buttressed his position by securing two main sources of aid:

1) Papal Support



The most powerful of all medieval popes, Innocent III (c. 1161-1216, left and right), absolved John from obeying the terms of Magna Carta.



2) French Support

John gained additional assistance from across the English Channel.




The coronation of Philip Augustus, 1165-1223


John allied with French king Philip Augustus who sent a French force that occupied London and part of southeastern England while John managed his campaign.


Philip receiving guests


"The sole reason and justification for [baronial revolt against the king] died with John [right]."15



"The dissident barons were fighting not against the traditions of Angevin kingship but against a single man. . . . This fact is dramatically demonstrated by the speed with which the baronial insurrection dissolved in the wake of John's death."16

French forces were eventually compelled to leave England in 1217.



In 1272, John's reign ended in full-scale insurrection. While John experienced some good successes in his war with the barons, he met a setback while campaigning in the area of Wales. "Furious and disheartened, he overindulged in peaches and cider" and died as a result.17



Subsequent History of Magna Carta

"In time the rule of law would prevail, and Magna Carta would be vindicated as the fundamental precedent."18 However:

The Tudor Dynasty – 1485-1603




Henry VII, r. 1485-1509



Henry VIII, r. 1509-1547


Edward VI, r. 1547-1553




Mary I, r. 1553-1558



Elizabeth I, r. 1558-1603

Strong Tudor rule led to the Magna Carta’s dropping from sight. It is not even mentioned in Shakespeare's play about King John.



The Stuart Dynasty – 1603-166019




James I, r. 1603-1625



Charles I, r. 1625-1649

The Puritan Interregnum (1649-1660) during which Oliver Cromwell exercised strict control over the national government.




Charles II, r. 1660-1685



James II, r. 1685-1688

The years of Stuart rule over England witnessed a lively struggle between Crown and Parliament over who would have the final say in English politics and financial affairs.

Petition of Right – May-June 1628


The Petition of Right (1628)

This historical landmark document set forth the rights and liberties of English subjects in contrast to the prerogatives of the Crown. The Petition, passed by the Third Parliament of Charles I (May 1628), aimed particularly at controlling the king’s arbitrary fiscal methods.

Specifically, it:

  • Affirmed the principle of no taxation without Parliamentary consent

  • No imprisonment of subjects without due legal cause

  • No billeting (quartering) of soldiers in private houses without payment

  • No declarations of martial law in peacetime

King Charles I


While Charles accepted the Petition of June 7, 1628, he later disregarded it. The Petition nevertheless became a central element in the evolving English Constitution.

Sixteenth century judge, Sir Edward Coke, 1552-1634


Coke, known as the greatest common lawyer of all time, was a champion of the principles articulated in the Petition.


The Glorious Revolution of 1688




In 1688, Parliament offered the Stadtholder of the Dutch Republic, William of Orange (1650-1702, left), the English throne.


William’s royal claim came through his marriage (1677) to Mary, the Protestant daughter of the recently fled Roman Catholic English king, James II.



Those who implemented the Glorious Revolution of 1688 sought an historical precedent to justify: the establishment of Parliamentary supremacy. Parliament found that precedent in the story of King John and Magna Carta. Revolutionaries rescued the venerable but long neglected document from the dustbin of history,20 reading into Magna Carta various exaggerations. Since that time, it "has been regarded as one of the bulwarks of English liberty."21




The resurrection of Magna Carta as a pivotal document in English political history demonstrates an interesting truth regarding the nature of history. Magna Carta appeared, in its own time, as an aberration—a departure from the norm. Four hundred and seventy-three years later, it undergoes a veritable apotheosis. Why? Because Englishmen—wittingly or not—began a process of democratization that subsequently extended across the next three centuries. In historiographical contrast, Pharaoh Akhenaton (c. 1379-1362, right) scandalized 14th century B. C. Egypt by instituting monotheism. Since his theological innovation was short-lived, it appears in Egyptian history as a brief , heretical, and futile foray away from traditional polytheism. Akhenaton’s theological revolution failed to evolve into an agogic, precedent-setting breakthrough on a par with monotheistic Judaism, Christianity, and Islam.




Legislation of the Glorious Revolution – Its Relationship

to the English Constitution

Declaration of Rights – February 13, 1688




Presentation of Declaration of Rights to William and Mary in the Banqueting Hall on February 13, 1688

Main Components of the Declaration of Rights:

  • An indictment of James II and his misdeeds22

  • A declaration of the rights of citizens23

  • A declaration naming William and Mary as the King and Queen regent of England with William’s rule being lifelong


Bill of Rights – December 16, 1689







William of Orange

The English Bill of Rights (1689) laid down the rights and liberties of English subjects. This list was not, however, exhaustive. Rather it sought to justify the Glorious Revolution through explaining the political and religious crimes of the former king, James II.


King James II





The English Bill of Rights—An Act of Parliament, December 16, 1689:

  • Asserted rule of law under which all the people, including the rulers, had to obey the law of the land

  • Limited the power of the monarch

  • Established Parliamentary Supremacy—gave Parliament the dominant power of governing

  • Insured the establishment of the Church of England (particularly over and against the Roman Catholic faith)

  • Articulated the principle of government by contract and consent—the idea that government is based upon a contract between the rulers and the ruled; that the contract can be broken if rulers violate the terms of that contract

  • Established a balance of powers between the legislative and executive branches of government with judges independent of both (a concept that in principle moves in the direction of “separation of powers” and “checks and balances”)



England


  • The English Bill of Rights was a law passed by Parliament; it could also be changed by Parliament

  • The English Bill of Rights intended mainly to limit royal power and increase the power of Parliament; it prohibits the monarch from violating the rights of Parliament.



Comparison & Contrast


The English Bill of Rights (1689) vs. the American Bill of Rights (1789)
While the two are not identical, England provided America with an important model.

America

  • The American Bill of Rights was adopted by Congress and then ratified or approved by the people; it can only be changed with consent of the people through duly established Constitutional processes

  • The American Bill of Rights seeks to prevent the government from violating individual rights as well as protecting the rights of the minority from the majority.



Toleration Act – May 24, 1689


The Toleration Act became law on May 24, 1689.

Contemporary apologist for the Glorious Revolution,24 John Locke (1632-1704, right) argued in favor of religious freedom in A Letter Concerning Religious Toleration, 1690.




The Toleration Act granted freedom of worship to most Dissenters (excluding those who did not believe in the Trinity).





1 Elisabeth Gaynor Ellis and Anthony Esler with Burton F. Beers, World History: Connections to Today, Upper Saddle River, New Jersey: Prentice Hall, 1999, p. 467.

2 Hall, History of England, p. 89.

3The disintegration of the Angevin [Plantagenet] Empire in 1204 was confirmed by the decisive French triumph at Bouvines in 1214." Warren Hollister, Making of England, 6th ed. Lexington, Massachusetts: D. C. Heath and Company, 1992, pp. 174-175.

4Hollister, Making of England, p. 175.

5Walter Phelps Hall, et. al., A History of England, Malabar, Florida: Robert E. Krieger Publishing Co., 1984, p. 89.

6 Hall, History of England, p. 90. “Scutage” was a feudal tax paid in place of rendering military service.

7Youngs, English Heritage, p. 50.

8Winston S. Churchill, Island Race, p. 51.

9 Hollister, Making of England, pp. 175-176.

10 Hollister, Making of England, p. 176.

11 Hollister, Making of England, p. 176.

12 Hollister, Making of England, pp. 176-177.

13 Youngs, English Heritage, pp. 47, 52.

14 Hall, History of England, p. 92.

15 Churchill, Island Race, p. 51.

16 Hollister, Making of England, p. 177.

17 Hall, History of England, p. 92.

18 Youngs, English Heritage, p. 52.

19 The Stuart dynasty was interrupted in 1649 when Puritan rebels executed king Charles I. Thereafter ensued the Interregnum or period between the two reigns, lasting until the Stuart Restoration in 1660 when Charles II was invited to take back the Crown.

20 With apologies to Karl Marx.

21 Hall, History of England, p. 92.

22 Specifically, the claims against James II included 1) abuse of suspending/dispensing powers, 2) violating the right of Petition, and 3) use of the illegal Court of High Commission.

23 Rights declared included 1) no taxes levied without Parliamentary approval, the abolition of the Court of High Commission, establishment of free elections, free speech in Parliament, and an end to excessive bail or cruel punishment.

24 John Locke’s Second Treatise of Civil Government, published in 1690, was an eloquent defense of the Glorious Revolution.

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