Features of English Constitutionalism

Features of English Constitutionalism

Medieval

Magna Carta (1215)

The best known document of English constitutional history was issued by King John under compulsion by a powerful nobility eager to insure feudal rights and privileges. It also guaranteed respect for certain customs of the towns and implied laws protecting the rights of subjects through references that vaguely hint at a right to trial by jury, habeas corpus, and a right of resistance for abridgement of the other provisions. Common law (see below) magnified the impact of these provisions by treating them as precedents to be followed by later kings, judges, and legislators.

Taxes and the House of Commons, 1530-1550

The reign of Henry VIII (1509-1547) was marked by bold policies and big expenses. The House of Commons had long been consulted when English monarchs needed money but more as a courtesy than for specific approval. The massive scale of Henry VIII’s projects raised questions about their acceptability, however, and the king came to depend on endorsement by parliamentary statute as evidence of a higher form of authority than royal proclamation. Ultimate sovereignty, especially in financial matters, thus came to rest with the “king in parliament.”Huge government debt at the start of Elizabeth I’s reign required her to depend heavily upon support by the Commons and become adept at responding to its concerns.

Common Law

A system of law based on custom and precedent established by court decisions. It was called “common” to distinguish it from vague and varied local custom. Crown accredited judges worked to codify wide-spread custom in the 15th century. Hardships resulting from more uniform application of precedents were mitigated by royal judges who were empowered to preserve fairness by issuing writs (mandamus, injunction, habeas corpus, certiorari, quo warrento) that became the basis for equity law. Leading lawyers of the 16th century, including Coke (see below), repeatedly confirmed the “fundamental” or constitutional authority of common law.

Early Modern

Sir Edward Coke, Dr. Bonham’s Case, & Judicial Review

After being awarded a medical degree from Cambridge, Dr. Bonham refused to recognize the authority of the College of Physicians to control medical practice in London, an authority given to it by both Crown and Parliament. When Dr. Bonham continued to practice without College approval, he was thrown into jail in 1607. He sought relief from Chief Justice Edward Coke, who ordered his release and restored his right to practice medicine. Coke’s opinion in Dr. Bonham’s case is the earliest precedent for judicial review: “for when an act of parliament is against common right and reason, or repugnant, or impossible to perform, the common law will controul it, and adjudge such act to be void.”

Petition of Right of 1628

Sir Edward Coke was dismissed by King James I for insisting on the supremacy of law and refusing to consult with royal advisors before deciding cases. Coke moved from his judicial bench to a parliamentary one and quickly emerged as a leader in the struggle between king and Parliament over royal power to collect taxes without prior approval by Parliament. Acutely short of funds, the King sought savings elsewhere by quartering soldiers in private homes and discouraging resistance by martial law, including arrests without showing cause. Parliament responded by passage of the Petition of Right, which declared illegal all efforts to collect money without Parliament’s approval, to quarter troops in homes, to arrest without cause, and to apply martial law in peacetime. The American Bill of Rights follows the precedent set by Coke. The king ignored Parliament, which then organized an army, took the king captive, and executed him in 1649.

Glorious Revolution of 1688 and the Bill of Rights of 1689

A change of rulers (James II was forced to flee from England; William and Mary were brought in from Holland) was accomplished by an act of Parliament, which then confirmed its supremacy by a series of statutes that guaranteed annual meetings of Parliament, that judges would hold office during good behavior instead of at the king’s pleasure, and that the rights of subjects to assembly and worship would be respected. The writing and publication of Locke’sSecond Treatise of Government was closely tied to the Glorious Revolution and was taken as a philosophical consecration of its achievements. The distinction between statutory and constitutional or fundamental law virtually disappears in the late 17th and early 18th centuries and does not reappear in England until Edmund Burke’s defense of complaints by American colonists at unconstitutional treatment by Parliament.

On the Eve of American Independence: Edmund Burke

As a member of Parliament and a leading defender there of the American colonies, Edmund Burke led a group of Whigs who sought to preserve constitutional principles of accountability and representation in tax and trade policy that Locke and Coke had so vigorously defended. George III and his parliamentary advisors were determined to break constitutional limitations put upon the king and his government. Their colonial policy was but the first effort to provide unlimited power to the crown, as Burke emphasized in his writings and speeches on American affairs of the 1760’s and 1770’s. Burke’s devotion to 17th century British constitutionalism and his association of Americans with it guaranteed that he would be isolated and despised by his parliamentary peers but also insured that he would have a huge impact in America. The argument made by Adams, Madison, and many others that Americans were merely standing up for traditional rights of English citizens was founded on Burke’s meticulous analysis of the damage done to English constitutionalism by the grand schemes in behalf of absolute power popular among leaders of the royal court and parliament in the closing decades of the 18th century. Included in Burke’s analysis is a clear, strong defense of checks and balances and the separation of powers in a free, limited government under law. American constitutionalism thus took up where British constitutionalism left off, thanks to Burke’s appreciation for the principles essential to constitutional government. Burke’s influence upon Madison’s famous 10th Federalist was especially profound, though rarely acknowledged except by a few scholars.