II. The Anglo-American Constitutional Experience

Up until the American Revolution, most American colonists thought of themselves as Englishmen, with all of the “rights of Englishmen.” England enjoyed a reputation for constitutional liberty and, while not without its mythological elements, the reputation was well deserved on the whole. All of the principles of Greco-Roman, Judeo-Christian, and medieval constitutionalism contributed to it. Most important, England withstood the challenge of absolutism in the sixteenth and seventeenth centuries, and could celebrate a “Glorious Revolution” in 1688. In the midst of these political and constitutional struggles, England founded colonies in North America where the seeds of liberty struck still deeper roots.

The most popular view of the development of English rights in the period of the American founding was that of primordial Anglo-Saxon liberty. In this story, the Germanic invaders brought their customs of tribal democracy and limited kingship from the forests of Germany to England. These ancient liberties were extinguished when the Norman conquerors of 1066 imposed the yoke of feudalism and Roman law, and the English began to recover it with Magna Carta in 1215. While often exaggerated and distorted, the myth contains a germ of truth, and it certainly had a powerful effect on the Anglo-American imagination for centuries, in ways that influenced their politics.

Magna Carta is the cornerstone of English constitutional liberty, establishing what would come to be known as the “rights of Englishmen.” Its first provision confirmed the freedom of the church. This kept alive the separation of church and state as bulwark against consolidated power. Article twelve provided for consent to taxation. This was probably the most important practical provision of the charter, for nothing more effectively limits government power than limiting government revenues. Other articles provided for trial by a jury of one’s peers, prohibited arbitrary deprivation of liberty or property, and guaranteed certain procedures in criminal prosecutions. Most of these were summarized in article thirty-nine, which said, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” This came to be called “due process of law” or “the rule of law.”

It is true that Magna Carta was concerned only with the particular interests of a small group of people, the nobility of thirteenth century England. And it is true that later politicians and historians often inflated its importance and created something of a myth about the establishment of English liberty in 1215. But ideas often take on a life of their own, far beyond the intent of the men who first give expression to them. The barons at Runnymede were no philosophers, but they were giving concrete, historical form to principles of natural law—the separation of powers, consent, due process. They were interested in specific liberties, not liberty in general—and this was better for liberty in the long run than if they had been speculative about it. One thing more was needed to secure these rights: an institution of government. Magna Carta contained a very complicated procedure for making sure that the king kept his promises, but it was several decades before this developed into the body that would really do the job: Parliament.

Certainly the thirteenth century English already considered themselves an exceptionally free people, comparing themselves favorably with the French. In England the king was limited by law and custom; in France, under Roman law, the king was above the law. Henry of Bracton began to distinguish gubernaculum, or the realm of the kings’ prerogative and discretionary power, from jurisdictio, when the king was limited by legal procedure. Two hundred years later, Sir John Fortescue, chief justice under King Henry VI, directly denied that the Roman principle of imperial sovereignty applied to England. “A king of England is obligated by his coronation oath to the observance of the law,” Bracton wrote. “An English king cannot, by himself or his ministry, lay taxes, subsidies, or impositions upon the subject, of any kind whatsoever. He cannot alter the laws, or make new ones, without the express consent of the whole kingdom in Parliament assembled.”

Fortescue wrote just as the Tudor family was about to consolidate political control of England and face the country with the prospect of continental-style absolutism. It was the Tudor King Henry VIII who set off England’s peculiar religious reformation—not out of any theological convictions, but because he could not have his marriage annulled— bringing the English church as much under royal control as any of the continental churches. It was quite in keeping with the drift toward absolutism in Europe that the Tudors took over the English Church, destroying the ecclesiastical check on secular power that had characterized the Middle Ages.

Though it helped Henry to take over the Church in the sixteenth century, Parliament came to be the main opponent of royal power in the seventeenth century, along with the common law courts and the Calvinist churches. The Calvinists believed that the Church of England was Protestant in name only. The issue came to a crisis, twice, in the seventeenth century, when the English overthrew two kings. When the Tudor line ran out in 1603, James Stuart, king of Scotland, became king of England. James and his son Charles believed that kings were above the law, superior to parliaments, and could govern without them. They were particularly intent on getting money out of their subjects without Parliament’s consent, and created a number of new courts to collect them—courts that used Roman law, without juries. They also attempted to impose a high church Anglicanism on the English, which was offensive to both Catholics and Calvinists, and united them against the Stuarts. As one English historian put it, “The two religious bodies which have done the most to secure the rights of man are those which really cared least about individual liberty—the Roman Catholic Church and the Presbyterian.” That may sound a little harsh and bigoted, but it shows again how liberty and constitutional government has often been an unintended by-product of struggles for power.

When Charles again demanded funds from Parliament in 1628, he was met by the Petition of Right, in which Parliament reminded him that “no [tax] shall be levied by the king or his heirs in this realm, without the good will and assent of Parliament,” and that “No person shall be compelled to make any loans to the King against his will, because such loans are against reason and the franchise of the land.” They continued, “By the statute called the Great Charter of the Liberties of England [Magna Carta] it is declared that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. And of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their homes, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.” Charles didn’t appreciated being lectured to in this fashion, so he dissolved Parliament and did not call another one until 1640.

This Parliament sat until the king was overthrown and executed, the House of Lords was abolished, and England became a republic. England was plunged into a civil war—one that was not as bloody as the wars if religion on the continent, but still traumatic enough. The conflict followed the pattern of most revolutions, with a democracy degenerating into anarchy and then into tyranny, a military dictatorship under Oliver Cromwell. After Cromwell’s death, Parliament invited the deceased king’s son, Charles II, to return from exile and restore the monarchy. Charles agreed to respect the “just, ancient and fundamental rights” of Englishmen, agreed to pardon all offenses committed during the civil war, and to freedom of conscience in religion. Charles was able to maintain the settlement for twenty-five years but his brother, James II, ended up raising suspicions of absolutism and Catholicism again. Parliament again overthrew the king, this time in the bloodless “Glorious Revolution” of 1688-89. Parliament invited William of Orange to be king, provided that he agreed to the terms of the Bill of Rights. The Bill of Rights was the most important statement of the rights of Englishmen for Americans of the colonial period. Many of its provisions are precisely those of our own Bill of Rights. It stated, “Whereas the late James II by the assistance of divers evil counselors, judges, and ministers employed by him did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom, by assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament: By levying money for and to the use of the crown, by pretence of prerogative, for other time and in other manner than the same was granted by Parliament; By raising and keeping a standing army within this kingdom in time of peace, without the consent of Parliament, and quartering soldiers contrary to law; By causing several good subjects being Protestants to be disarmed, at the same time when papists were both armed and employed contrary to law; And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of subjects; and excessive fines have been imposed; and illegal and cruel punishments have been inflicted; all which are utterly and directly contrary to the known laws and statutes and freedom of this realm.” This restated most of the fundamental principles of English constitutionalism—consent to taxation, no standing armies in time of peace, the right to bear arms, due process in criminal procedure—that would appear again in the Declaration of Independence and the American Bill of Rights. Parliament also asserted control over the succession to the crown, so that from this point on no claim of monarchical sovereignty would threaten England again. Rather, it was said that the sovereign in England was “the King in Parliament,” a kind of mixed government that would prevent tyranny and preserve liberty.

In England, as on the continent, people drew two opposite conclusions from the wars of religion—and the English Civil War and Glorious Revolutions were primarily religious wars. These were the absolutist and the libertarian reactions. Thomas Hobbes wrote in response to the Civil War. The war showed Hobbes that men were beasts and would live the lives of beasts—“solitary, poor, nasty, brutish, and short,” as he put it— unless an all-powerful government protected them from one another. This was the origin and nature of government, which needed to be absolutely sovereign, what Hobbes called the “Leviathan.” There were no natural rights, in Hobbes’ view—the law of nature was the law of the jungle. This is the essential argument of modern absolutism. John Locke, on the other hand, looked at government with the experience of the Glorious Revolution in mind and devised a libertarian theory of government. For Locke, men had rights in the state of nature, and formed governments to secure those rights more effectively. They did not surrender their natural rights to that government—such rights were inalienable—and gave that government only limited powers. And if the government abused those powers, the people could alter or abolish it. In essence, Locke was giving a theoretical explanation to justify what had taken place in the Glorious Revolution, a modest, peaceful, basically conservative revolution. Four score and seven years later, Thomas Jefferson would do the same for the American Revolution.

It was during the tumultuous seventeenth century that the English established their first colonies in the New World. It is easy today to see that the seeds of rebellion were sown very early, that America was conceived in liberty long before 1776. Edmund Burke was among the few English statesmen to recognize it in the eighteenth century. The same forces of Protestantism and parliamentary government that drove the English civil wars were planted along the Atlantic coast.

Almost all of the settlers were reformed Protestants, and even those who were Anglican became accustomed to a high degree of self-government in their churches. There were no bishops in America, just as there was no secular aristocracy. The first constitutions in America reflected this. The Mayflower Compact simply transferred the covenant that made a congregation into a constitution for civil government. Other colonies that were established as business corporations turned their charters into constitutions. This is how the Massachusetts Bay Company, a project undertaken by religious dissenters in England, evolved. The General Court (originally a meeting of stockholders) became a civil representative body, with membership based on membership in a Puritan congregation. In Virginia, the House of Burgesses was used as a promotional device to attract settlers, to assure Englishmen that they would have a say in the government of the colony. The charter of the Massachusetts Bay Company granted that every settler and his descendants “shall have and enjoy all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions, and purposes whatsoever, as if they and every one of them were born within the realm of England.”

Every colony had a charter from the king, and all of them guaranteed the settlers that they retained their rights as Englishmen in the New World. Every colony had a popular assembly that looked like a little parliament, most of which actually exercised more real power than the Parliament in London. Every American constitution also provided a great deal of local self-government. Most political action took place at the county and town level. There already was a great deal of “federalism” within the colonies. The word itself reflects these origins, derived from the Latin foedus, or “compact.”

The colonists were the most highly educated people in the world, and legal knowledge was especially widely diffused among them. Lawyers were especially important in politics, and every liberally educated man in America was familiar with legal principles and constitutional history. The colonies were also prosperous. They were little republics, and were also commercial republics. This made the common English hostility to taxation even more intense in America. Property rights were especially important in a country where property was widely held, and where business was not disdained as it was in the Old World, where deference to nobility of blood and office remained strong. Even in that part of British North America where these traits were least evident, among the great plantation owners of the South, the spirit of liberty was just as intense, because slaveholders had first-hand experience with tyranny.

All of this was reinforced by the fact that the British had largely left their American colonies to fend for themselves for a century and a half. The whole issue of the American Revolution was really laid out in the Glorious Revolution of 1689. The question was whether the principles of the Glorious Revolution, expressed in the Bill of Rights and Locke, applied to the colonies. Americans believed that they did. Americans had participated in the Glorious Revolution themselves, overthrowing King James’ governors who, they believed, were going to establish “popery” and arbitrary government in America. They believed that they had vindicated the right to govern themselves by their assemblies just as Englishmen had established the supremacy of their Parliament in England. The British, on the other hand, never gave a direct answer to the question of whether colonial self-government was a right or a privilege. The charters and assemblies that James had dissolved were restored, but it was not clear whether this was a British gift or a colonial right. And for the next seventy years the British maintained their policy of salutary neglect, and the colonists continued to govern themselves. As long as no crisis brought the issue up, both sides were happy to let it alone.

In the meantime, the American colonists were developing a distinctly modern political culture. They certainly maintained a great many features of traditional political thought: acceptance of monarchy, hierarchy, and deference; a belief that it is government’s role to inculcate virtue and piety in the people; and a suspicion of democracy and faction or party. At the same time, American politics exhibited many traits of modern interest-group competition. With fifty perfect of adult white males enfranchised, the colonies were the most democratic polities in the history of the world. The popular branches of their legislatures were the dominant ones, able to control finances especially and to resist the royal governors. And these assemblies were often arenas for contests among a multitude of ethnic, cultural, religious, and economic groups. While the American Revolution would evoke the language of traditional republicanism, and while Americans would never be fully comfortable with partisanship, the latter was the prevailing trend in the 18th century. While these internal cleavages in American politics often threatened discord within and among the colonies, their common constitutional culture, expressed in their charters, institutions, traditions, and principles, united them more than these differences divided them.

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