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PART 1: The Constitution’s Deep Roots - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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The Constitution’s Deep Roots
POINTS TO REMEMBER
1. The American Constitution is an evolutionary rather than a revolutionary document. Though written in a revolutionary age, it embraces ideas and principles developed through trial and error that grew out of our colonial experience. Constitutional and legal development in England and the political history of the Greek and Roman republics also influenced the thinking of the Framers.
2. Three important political concepts drawn by the Americans from the Roman experience were the doctrines of republicanism, political virtue, and checks and balances. But it is the English Constitution, including the English charters of liberty and the English legal system, that had the greatest impact on American constitutional development. Representative government, a tradition of well-established civil liberties, and the heritage of the common law are three important political and legal institutions of England that Americans adopted in framing their own constitutions. Certain features of the English Constitution were rejected by the Americans, however, including the monarchy and the principle of legislative supremacy. The American Constitution therefore represents a blending of English and American constitutional traditions.
3. The Framers of the American Constitution had learned from ancient and from British history that republics, like other forms of government, are vulnerable to corruption, and that legislative bodies as well as courts of law can be just as much a threat to liberty as all-powerful monarchs. For this reason they did not place all their trust in any one branch of government, and they established checks on the powers of each.
The Meaning of Constitutional Government
Two centuries ago, fifty-five men met at Philadelphia to draw up a constitution for the United States of America. The thirteen States that once had been British colonies urgently needed a more reliable general government, a better common defense against foreign powers, a sounder currency, and other advantages that might be gained through establishing “a more perfect union” founded on a solemn agreement, or fundamental law, called a constitution.
Today, the fundamental law of the United States of America still is that Constitution of 1787, a written document which is respected and obeyed almost as if it were a living thing. This book examines that Constitution, inquiring how it was developed, what its provisions mean, why it has functioned so well, and how it affects everybody’s life in America today.
What do we mean by this word constitution? As a term of politics, constitution signifies a system of fundamental principles—a body of basic laws—for governing a state or country. A constitution is a design for a permanent political order.
A constitution does its work through what is known as the rule of law: that is, people respect and obey laws, rather than follow their own whims or yield to the force of somebody else. Every country develops a constitution of some sort, because without a regular pattern of basic law, a people could not live together in peace. Lacking a tolerable constitution, they never would know personal safety, or protection of their property, or any reasonable freedom. Even savage tribes may be said to be governed by “constitutional” customs of a simple nature.
The most widely admired of all constitutions is the United States Constitution. It was written in 1787 and took effect in 1789. It was, and is, rooted in the experience and the thought of many generations of people. This is a major reason why the American Constitution still flourishes in our day. Like some great tree, the Constitution of the United States is anchored and nurtured by roots that run deep into the soil of human experience. Those constitutional roots are the political institutions, the laws, the social customs, and the political and moral beliefs of earlier ages and other lands.
Nowadays we tend to think of a constitution as a written document, but actually constitutions may be partly or even wholly unwritten. These unwritten constitutions are not based on a single document but are made up of old customs, conventions, statutes, charters, and habits in public affairs. The British Constitution is an example of this sort of basic body of laws. Until the Constitution of the United States was agreed upon in Philadelphia, all national constitutions were “unwritten” and informal. A few years after the American Constitution was drawn up, written constitutions were adopted in Poland and France. Even the American Constitution is not entirely set down upon paper, however.
For it has been said that every country possesses two distinct constitutions that exist side by side. One of these is the formal written constitution of modern times; the other is the old “unwritten” one of political conventions, habits, and ways of living together in the civil social order that have developed among a people over many centuries. Thus, for instance, certain important features of America’s political structure are not even mentioned in the written Constitution of 1787. For example, what does the written Constitution of the United States say about political parties? The answer is—nothing. Yet political parties direct the course of our national affairs. What does our written Constitution say about the President’s cabinet, with its secretaries of state, of the treasury, agriculture, defense, education, and the like? The answer again is nothing; yet the President could not function without a cabinet.
So it is possible to speak of a “visible” and an “invisible” constitution, and of a “written” and an “unwritten” constitution. In this book we are concerned principally with the written Constitution of the United States, although from time to time we will refer also to aspects of our basic political system that have not been set down in writing.
A constitution is an effort to impose order for the achievement of certain ends. Those ends are often set forth in a preamble to the document, as in the American Constitution, which states that the “People of the United States” have established the Constitution “to form a more perfect union, establish justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
Liberty, order, and justice, it may thus be seen, are the primary objectives of the American political system. They are probably the most important and all-embracing of the many goals we pursue as a nation. The significance of liberty, order, and justice is reflected in other constitutions as well. Thus the constitution of the Republic of Korea (1980) asserts that its purpose is “to consolidate national unity with justice,” “destroy all social vices and injustice,” “afford equal opportunities,” and “strengthen the basic free and democratic order.” Portugal’s constitution (1974) seeks to “safeguard the fundamental rights of citizens,” “secure the primacy of rule of law,” and build a “freer, more just” country. The constitution of Venezuela (1972) states that its purpose is to ensure “the freedom, peace, and stability of its institutions,” and to provide for “social justice” and support of “the democratic order.” Inspired by the nobility of purpose stated in the American Constitution, the preamble to Argentina’s constitution of 1853 claims that the fundamental law of this South American republic aims toward “ensuring justice, preserving the domestic peace, providing for the common defense, promoting the general welfare, [and] securing the blessings of liberty to ourselves, to our posterity. …”
Liberty, order, and justice are all made possible by sound constitutions; but a constitution is only a “parchment barrier,” and even a well-conceived constitution will fall short of its goals if the people fail to support it. Many of the Framers of the American Constitution were of the opinion that constitutional government requires, above all, a “virtuous” citizenry if it is to endure. Certainly a constitution cannot last if it is willfully ignored, or if there is no common understanding among the citizens and their elected leaders as to what the achievement of liberty, order, and justice requires.
What did the Framers mean, then, when they dedicated themselves and their fellow countrymen to the pursuit of these ideals? Let us briefly define these important terms as they have been traditionally understood: liberty (or freedom) means the absence of coercion or force, or the ability of an individual to be a thinking and valuing person and to carry out his own plans instead of being subject to the arbitrary will of another. Order means the arrangement of duties and rights in a society so that people may live together in peace and harmony. By ordered freedom we mean individual freedom that recognizes the need to limit freedom in some respects and rejects the notion that the individual should have absolute freedom to do as he or she pleases irrespective of the rights of others. Without the restraint of law and order, freedom cannot exist. Justice means the securing to persons of the things that rightfully belong to them, and the rewarding of persons according to what they have earned or deserve. Equality of opportunity and equality before the law are normally regarded as attributes of justice in a free society, as distinguished from equality of result or condition, which must be imposed by coercion.
To understand liberty, order, and justice, think of their opposites: slavery, disorder, and injustice. The aim of a good constitution is to enable a society to have a high degree of liberty, order, and justice. No country has ever attained perfect freedom, order, and justice for everyone, and presumably no country ever will. This is because human beings and human societies are both very imperfect. The Framers of the Constitution of the United States did not expect to achieve perfection of either human nature or government. What they did expect was “to form a more perfect union” and to surpass the other nations of their era, and of earlier eras, in establishing a good political order.
Over the centuries, constitutions have come into existence in a variety of ways. They have been decreed by a king; they have been proclaimed by conquerors and tyrants; they have been given to a people by religious prophets such as Moses, who gave the Ten Commandments and laws to the Israelites; they have been designed by a single wise man such as Solon, who gave a new constitution to the people of Athens in ancient Greece six centuries before Christ. Other constitutions have grown out of the decisions of judges and popular custom, such as the English “common law.” Or, constitutions can be agreed upon by a gathering called a convention. The constitutions that have been accepted willingly by the large majority of a people have generally been the constitutions which have endured the longest.
But because people are restless and quarrelsome, few constitutions have lasted for very long. Nearly all of those that were adopted in Europe after the First World War had collapsed by the end of the Second World War a quarter of a century later; many of the newer constitutions proclaimed in Europe, Asia, and Africa not long after the Second World War ended in 1945 have already have been tossed aside or else do not really function anymore. There are today more than one hundred national constitutions in force throughout the world. Nearly all of them were written and adopted after the Second World War. The oldest and most respected constitution is the Constitution of England. It dates back to the beginning of the thirteenth century.
Much of the written Constitution of the United States is derived from the “unwritten” English Constitution—or, to be more precise, from the English Constitution as it stood during the latter half of the eighteenth century. For England’s constitution developed and changed over the centuries. By 1774, when the American struggle for independence began, the fundamental laws of England were very different from what they had been in 1215, the year when King John accepted the constitutional document known as the Magna Charta. All good constitutions change over the years because the circumstances of a nation change. As the great parliamentary leader Edmund Burke put this in the eighteenth century, “Change is the means of our preservation.” But good constitutions also contain many provisions that are permanent. These are principles and rules of law that help prevent rash or hasty changes which might work mischief. Unlike the English Constitution, which can be changed by a mere statute of Parliament, the American Constitution can be formally changed only when a large majority of the people, through their States, approve an “amendment.”
The American Constitution is like the English Constitution in another way. Both are based on the principle that liberty, order, and justice are difficult to achieve and must be preserved through fundamental laws that should be respected and not easily cast aside to serve a temporary expedient or to satisfy the whims of a transient majority that is here today and gone tomorrow.
What is a good constitution supposed to accomplish besides protecting liberty, order, and justice? We may set down below four primary characteristics of a good constitution.
First, a good constitution should provide for stability and continuity in the governing of a country. The subjects or citizens of a political state should be assured by their constitution that the administering of the laws and of major public policies will not change continuously from one day or year to another day or year. What was lawful yesterday must not suddenly be declared unlawful tomorrow unless through a formal amendment to the Constitution. People must be able to live their lives according to certain well-known rules. A good constitution also helps a country to achieve economic prosperity. When a country’s constitution does not guarantee stability and continuity, no man or woman can plan for the future. When we make decisions, it is important that we know with reasonable certainty what the consequences will be.
Second, a constitution should restrain government from assuming powers that rightfully belong to other political entities or to families or individuals. This can be accomplished by limiting and dividing power. A wise constitution may allocate certain powers to a central government and other powers to regional or local governments; or it may assign certain functions and prerogatives to each of the major branches of government—the executive, the legislative, the judicial. Certainly a prudent constitution will provide safeguards against arbitrary and unjust actions by persons who hold power.
Third, a constitution should establish a permanent arrangement that enables public officials and others with political authority to represent the people they govern. To put this another way, with a good constitutional order the people ought not to be ruled by a group or class of persons quite different from themselves who do not have at heart the best interests of the majority of the people. This does not necessarily mean that a constitutional government has to be totally democratic. It also does not mean that a good constitution must necessarily provide for “one man, one vote.” There have been decent constitutional systems that were monarchical, or aristocratic, or under which the right to vote was limited.
Fourth, a good constitution holds public officials directly accountable to the people. This means that the governing class or public officials must be held responsible—under the constitution—for the actions they take while in public office. Under a truly constitutional government, no man or woman can be permitted to exercise arbitrary power—that is, to disregard laws or popular rights whenever it is thought convenient to do so. All officials must be held accountable to established authorities such as the courts of law, to the legislature, and to the voting public, and should not be allowed to exempt themselves from the laws they enact. Public officials should also be held accountable to fiscal inspectors, and should be subject to removal from office through impeachment for “high crimes or misdemeanors,” such as the abuse of power or the misuse of public funds.
Various other characteristics of a sound constitutional system might be named. The four above are particularly important, however, and are now found in one form or another in the constitution of every country that enjoys a high degree of liberty, order, and justice.
These characteristics of a good constitution help us to recognize what can and cannot be achieved through constitutions.
A good constitution, in the first place, ought not to incorporate detailed regulations to cover every contingency. On the contrary, the constitution should be concerned with first principles of government; it should not be an endeavor to provide rules of administration for a multitude of concerns. The longer a constitution is, the fewer people will read it, and the harder it will become to distinguish its major provisions from details of relatively small importance. Respect for a constitution will be diminished if it becomes an entire code of laws dealing with every conceivable subject.
Second, a written constitution ought not to conflict with the “invisible constitution” or long-established patterns of institutions, customs, and beliefs that have strongly influenced a country’s politics for many generations. A constitution invented by radicals, one deliberately designed to break down a people’s traditional ways, must meet with strong resistance or evasion. The framers of a constitution ought to understand the political traditions of their time and country. A good constitution, in other words, should conform to the character, habits, and mores of the people who will live under it. Because civilizations differ, a constitution that is suitable for one country may be unsuitable for another. It would be unrealistic, for example, to suppose that the entire American Constitution can be exported to foreign nations. A country without a strong democratic tradition of self-government and a well-educated population may also have difficulty preserving a constitution, particularly if that constitution presupposes a level of political understanding and maturity to which the people have not risen. For merely creating an idealistic paper constitution will not bring about substantial improvement in liberty, order, or justice. The “paper constitutions” of many new African states that were proclaimed during the 1950s and 1960s collapsed altogether within a very few years.
Third, a good constitution should be neither easy to alter nor impossible to amend. This is because, on the one hand, a constitution is meant to be permanent and to assure a people that the political pattern of their country will not drastically change. On the other hand, the word permanent does not mean eternal. It is simply not possible for people who are living near the end of the twentieth century to draft an unalterable constitution for their great-grandchildren who will be living in a century to come.
This is true because, in the course of a century or two centuries, there may occur significant political, economic, technological, military, or even physical changes in the circumstances of a nation. Therefore a good constitution must be elastic enough to allow for modification of certain of its provisions without the need to abolish the whole constitution.
This understanding of what a constitution should do and cannot do is derived chiefly from the success of the Constitution of the United States. “The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man,” wrote William Gladstone, an English statesman, in 1878. That may seem to be extravagant praise. But surely no body of men has ever achieved a political result more ennobling and more enduring than that which the Framers of the Constitution produced in the summer of 1787.
The following sections of this book explain the historic roots of the American Constitution, the events of the “Great Convention” of 1787, the major political principles of the Constitution, why the Bill of Rights was added to the original articles of the Constitution, the process of ratification, the meaning of the document’s important provisions, how they are to be interpreted, and how they may be changed.
Presumably, nearly all the people who read this book will continue to live under the protection of the Constitution of the United States, so they may find it worthwhile to understand just what the Constitution does, and how it influences their lives, their family, their community, and their nation.
The Lamp of Experience
The Articles of Confederation, America’s first national constitution, were hastily drafted in 1776 amidst the turmoil of the American Revolution. Because of disagreements among the States, ratification was slow in coming. In fact, the Articles did not actually go into effect until 1781. By 1787 there was widespread agreement throughout the country that the Articles had proved to be unsatisfactory and that it was therefore necessary to change them substantially, or possibly to abandon them altogether and write a new constitution. In the end, as we shall see, the latter view prevailed. The members of the Federal (or “Philadelphia”) Convention who met in Philadelphia in 1787 to “revise” the Articles soon came to the conclusion that the defects were so fundamental that a mere revision would not be practical.
One delegate to the Federal Convention who argued strenuously for a new constitution, and then later led the fight for ratification of the one that was finally drafted, was Alexander Hamilton of New York. After the Convention completed its work on September 17, 1787, Hamilton, joined by John Jay of New York and James Madison of Virginia, wrote a series of essays called The Federalist. Written for New York newspapers, and later distributed in other States, the essays in The Federalist urged the people to support the new Constitution and attempted to explain why it was preferable to the Articles of Confederation. Seeking to present themselves as neutral observers, the authors of The Federalist concealed their identity and wrote under the name of “Publius.” Most other writers, whether favoring or opposing the Constitution, did the same. In New York, for example, one of the most effective critics of the new Constitution was an anonymous writer named “Brutus.” From New Hampshire to Georgia a great “war of pamphlets” erupted in the struggle over ratification of the Constitution. Those favoring adoption called themselves “Federalists,” and those opposing ratification were dubbed “Anti-Federalists.” From their very inception, the 85 essays in The Federalist, or what are commonly known as The Federalist Papers, were immediately recognized as superior to other writings on the Constitution produced during the ratification struggle. Taken together, they constituted a brilliant exposition of the entire Constitution—profound, insightful, and instructive. To this day, The Federalist is universally acknowledged as an American classic, as an indispensable source for an understanding and appreciation of the original meaning and purpose of almost every provision of the Constitution. To his lasting fame and credit, it was Alexander Hamilton who organized the collective effort to publish The Federalist and wrote most of the essays.
Speaking for most of the delegates who attended the Philadelphia Convention, and certainly for many of his countrymen as well, Hamilton confronted the basic dilemma Americans faced in 1787. The Articles of Confederation, he wrote in Federalist No. 15, were an invitation to disaster. “We may indeed with propriety be said to have reached almost the last stage of national humiliation,” wrote Hamilton. Something must be done, he said, “to rescue us from impending anarchy.” The nation was steeped in debt to foreigners and its own citizens; valuable American territories were still in the possession of Great Britain; there were no troops or funds to repel invaders; access to the Mississippi River was impeded by Spain; commerce had declined to its lowest point. So great was “the imbecility of our government,” he complained, that foreign governments would not even deal with it. “The evils we experience,” Hamilton concluded, “do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.”
It was on this basis that the Framers proceeded to construct a new framework of government, casting aside the Articles of Confederation and building a new edifice, from the ground up, on “first principles.” But they did not have to begin from scratch. Before we explore the meaning and substance of those “first principles,” and seek to discover how and why they were incorporated into the Constitution, it is essential that we first examine their origin and historical development. “Not to know what happened before one was born,” as we were reminded long ago by Cicero, the great Roman statesman, “is always to be a child.” American political leaders were hardly ignorant or contemptuous of the past. The Framers respected the wisdom of their ancestors, especially their religious learning. They had been reared on the King James version of the Bible, and at least half of them—being Episcopalians—were well acquainted with the Book of Common Prayer. They also respected the lessons of history and were strongly influenced by historical, legal, and constitutional precedents, both foreign and domestic. They had read a good deal of law and history. They knew something of political philosophy, that great body of learning that seeks to know and understand the first principles of government, and what it takes to establish good government and promote the common good or “general welfare.”
But they were not alienated closet-philosophers trying to found a perfect society or utopian paradise, for they were keenly aware of man’s imperfections as well as his strengths. Almost to a man, the Framers were aware of the intricate process by which human beings had learned to live together, at least in some places and at certain times, in freedom, order, and justice. Those who forget the mistakes of the past, it has been said, are bound to repeat them. The Framers knew of the many mistakes that had been made in the governing of great nations. Above all, they knew the benefits enjoyed in a society in which the claims of authority and the claims of freedom were maintained in a healthy balance. “Power corrupts,” said Lord Acton, the nineteenth-century British political thinker, “and absolute power corrupts absolutely.” The men who wrote the American Constitution would have agreed, but they would have also added: “Yes, but absolute liberty can also corrupt a nation. There is no freedom in anarchy.”
“I have but one lamp by which my feet are guided,” the fiery patriot leader Patrick Henry told his fellow planters of Virginia in 1775, “and that is the lamp of experience. I know of no way of judging the future but by the past.” The confidence and trust expressed by American political leaders in the political principles they applied in making the Constitution and evaluating its merits stemmed not from rootless theories and ideals divorced from experience and reality, but from the conviction that these principles were tried and true—the result of trial and error spanning centuries of political conflict. This was true of both Patrick Henry, the Anti-Federalist leader who opposed the Constitution, and Alexander Hamilton, the Federalist leader who favored it. What divided these gentlemen in 1787, as we shall later learn, was not so much a disagreement over first principles as a difference of opinion over whether those principles had been given proper weight and correctly adapted to the American situation.
The Constitutions of Antiquity
What had the Framers learned about the art of government in 1787? In the first place, it must be kept in mind that the leaders of the founding generation were steeped in classical learning. The study of Greek and Latin literature, and of the ancient world’s history and politics, loomed much larger in American education during the latter half of the eighteenth century than it does in American education today. Indeed, the classical past was a dynamic force in American public life well into the nineteenth century. The last President of the United States with a truly classical education was probably John Quincy Adams, the son of the second President, John Adams. John Quincy Adams even taught the classics at Harvard as a Professor of Rhetoric and Oratory and in 1810 published his lectures on this subject. His administration (1825–1829) marks a turning point respecting the classical influence, however, and after the Jacksonian era few Presidents have been well read in the classics. None was a classicist in the sense that the Adamses and Jefferson were, and certainly none was portrayed, like George Washington in a famous statue by Horateo Greenough, in the character of a Roman senator—nude to the waist, with uplifted arm, draped by a toga, pointing to the heavens. Few statesmen understood, as the Revolutionary and Federal generations had, that classical history had much to teach the nation. Perhaps the last conspicuous surviving remnants of America’s classical tradition in the first half of the nineteenth century were in architecture, which experienced a Greek revival, as seen in the construction and design of great plantation houses in the South; and in oratory, as witnessed in the great senatorial debates and public addresses by John Randolph of Roanoke, John C. Calhoun, Henry Clay, and the most celebrated Ciceronian orator Daniel Webster.
Most of the Framers had read, in translation or in the original Greek and Latin, such ancient authors as Herodotus, Thucydides, Plato, Aristotle, Polybius, Cicero, Livy, and Plutarch—philosophers and historians who described the constitutions of the Greek and Roman civilizations. From their study, the American leaders of the War of Independence and the constitution-making era learned, by their own account, what political blunders of ancient times ought to be avoided by the republic of the United States. “History,” Thomas Jefferson wrote, “informs us what bad government is.” Perhaps he had the ancient republics in mind when he wrote those words.
The Greek city-states of the sixth and fifth and fourth centuries before Christ never succeeded in developing enduring constitutions that would give them liberty, order, and justice. Civil war within those city-states was the rule rather than the exception, pitting class against class, family against family, faction against faction. And when half of those cities went to war against the other half, in the ruinous Peloponnesian struggle—during the last three decades of the fifth century—Greek civilization never wholly recovered from the disaster.
Leading Americans carefully studied the old Greek constitutions. In his Defence of the Constitutions of Government of the United States (published in 1787, on the eve of America’s Great Convention), John Adams, for example, critically examined twelve ancient democratic republics, three ancient aristocratic republics, and three ancient monarchical republics. He found them all inferior to the political system of the new American republics in the several States that were formed after 1776. James Monroe, a hero of the American Revolution, a member of the Virginia Ratifying Convention of 1788, and later the fifth President of the United States, wrote descriptions of the ancient constitutions of Athens, Sparta, and Carthage—finding all of them seriously flawed and therefore not to be trusted by Americans. The authors of The Federalist, in their defense of the Constitution, often referred to “the turbulent democracies of ancient Greece” (Madison’s phrase) and to other ancient constitutions. In general, Hamilton, Madison, and Jay found the political systems of Greece and Rome, as Madison put it, “as unfit for the imitation, as they are repugnant to the genius of America.”
Eighteenth-century Americans did respect Solon, the lawgiver of Athens in the sixth century But Solon’s good constitution for his native city had lasted only some thirty years before a tyrant seized power in Athens. Few American leaders were much influenced by Greek political thought; John Adams wrote that he had learned from Plato two things only, that husbandmen and artisans should not be exempted from military service, and that hiccoughing may cure sneezing. It is true that ancient Greek culture helped to shape education in America, but Greek constitutions had almost no influence in the shaping of the Constitution of the United States—except so far as Greek constitutional flaws suggested what the Framers at Philadelphia ought not to adopt.
There is, nevertheless, much to learn about constitutions from reading Plato and Aristotle. Both of these ancient Greek philosophers wrote about monarchical, aristocratic, and democratic constitutions, about oligarchies and democracies, about tyrannies and kingships, about the origin and nature of government, and about the polity—that regime described by Aristotle as essentially a limited democracy blending the monarchical, aristocratic, and democratic elements of government, in which the greatest political power is exercised by landholders. This was the dream of Greek democracy, but it was not exactly the model the Americans wished to apply to the infant Republic of the United States. This was because Greek politics in ancient times was the politics primarily of “city-states”—compact in territory, very limited in population, and quite unlike the thirteen original States that formed the United States. Also, in the Greek democracies the entire body of male citizens was able to assemble in a forum to make public decisions of the gravest sort—sometimes foolish decisions with ghastly consequences. The United States in 1787, by comparison, was a vast expanse of territory in which there were few cities. Direct democracy of the Greek sort, where the people gathered to represent themselves, would not have been practical, or even possible, in the American republic. Indeed, the sheer size of the United States was almost overwhelming. From north to south the new nation spanned almost twelve hundred miles, and to the west—from the Atlantic Ocean to the Mississippi River—the distance was about six hundred miles. The Greek city-states were mere specks on the map in comparison with almost any of the American states, and England itself could have just about fit within the State of New York. Although there were fewer than four million inhabitants in the thirteen States, the United States in 1787 was already one of the largest nations in the Western world.
The Roman Republic was taken much more seriously by leading Americans in the 1780s. American boys at any decent school in the eighteenth century studied the orations and the life of Marcus Tullius Cicero, the defender of the Roman Republic in its last years. And they read Plutarch’s Lives of the Most Noble Grecians and Romans, which taught them the characteristics and qualities of great statesmen. A classical education was considered essential for all young men, and the better academies for young women also provided classical learning.
The vocabulary of American political culture also reflected the influence of America’s classical heritage. The English word constitution is derived from the Latin constitutio, meaning a collection of laws or ordinances made by a Roman emperor. Among other terms, president and federalism have roots in Roman history; and the Roman term Senate was applied by the Framers of the American Constitution to the more select house of the legislative branch of their federal government, although the method of selecting senators in America was to be very different from what it had been in Rome. Hamilton, Jay, and Madison, the authors of The Federalist, wrote in the name of Publius, a reference to Publius Valerius Publicola, the ancient Roman famous for his defense of the Roman Republic.
Three important political concepts drawn by the Americans from the Roman experience were the doctrines of republicanism, political virtue, and checks and balances. Though theoretically a republic would be any form of government other than a monarchy, it was generally understood by Americans to mean a government in which the people were sovereign. In a small New England town they might rule directly, but on a larger scale the people would have to rule indirectly, through their freely chosen representatives. Advocacy of this form of government in the eighteenth century was a radical idea, and many European thinkers, having grown accustomed to monarchy, looked upon republicanism as a foolish and unworkable relic of the past. Republics might be suitable for a Greek city-state or Swiss canton, but they were too unstable for governing anything larger. The internal collapse of the Roman Republic under the weight of corruption and disorder, resulting in tyranny and the eventual destruction of the nation, seemed to prove the point. In fact, corruption had subverted and toppled almost every republic that had ever existed.
American leaders nevertheless believed that republicanism offered the only hope for preserving liberty, and that republicanism could successfully be revived if the mistakes of the past were understood and not repeated. This goal was within reach, they thought, if a republic could be designed which encouraged public virtue, the animating principle of republican government, and discouraged corruption, the characteristic republican disease. Many of the books that Americans read—Charles Montesquieu’s Considerations on the Grandeur of the Romans and Their Decline, James Harrington’s Oceana (an imaginary commonwealth), the writings of Algernon Sidney, Thomas Gordon’s Cato’s Letters and his translations of Roman historians—emphasized the threat of corruption and provided object lessons on how it might be avoided.
Above all, the Americans valued republican virtue, and the American leader who prized it the most was George Washington. In his own lifetime, Washington came to symbolize republican virtue. The story popularized by Parson Weems that Washington could not “tell a lie” when he was once accused of chopping down a cherry tree was a myth; and yet there was an element of truth in it, for Washington was a true public servant whose honesty and integrity were above reproach. Had he been a lesser man, hungry for power and glory, he might have exploited his enormous popularity among the American people to crown himself king or establish a military dictatorship, as Napoleon Bonaparte did in France. But Washington patterned his conduct in war and politics on that of Cincinnatus, the great Roman patriot and statesman who never sought power for himself, who answered Rome’s call when he was needed and returned to the plow when the crisis had passed. After the Revolution, Washington’s example, the general appeal of Cincinnatus, and the patriotic zeal of American revolutionary war leaders inspired the creation of the Society of the Cincinnati, an organization for officers of the Continental Army. Some politicians expressed concern when the Society first came into existence that it might be part of a military conspiracy to overthrow the government, but Washington’s well-known hostility toward such ideas soon put these fears to rest. The Society still exists as a living memorial to the patriotism of the American revolutionary soldier and as a continuing reminder that the spirit of republican virtue, as represented by the life and career of Cincinnatus, guided Washington and other American leaders in their struggle for freedom.
For the delegates at Philadelphia, the most interesting feature of the Roman Republican constitution was its system of checks upon the power of men in public authority, and its balancing of power among different public offices. The Americans learned of these devices from the History by Polybius, a Greek statesman compelled to live long in Rome. The two Roman consuls, or executive; the Roman Senate, made up of rich and powerful men who had served in several important offices before being made senators; the Roman assembly, or gathering of the common people—these three bodies exercised separate powers. And the Roman constitution (an “unwritten” one) included other provisions for preventing any one class from putting down other classes, and for preserving the republican form of government. Praised by Polybius as the best constitution of his age, this Roman constitutional system was bound up with a beneficial body of civil law, and with “the high old Roman virtue”—the traditional Roman morality, calling for duty and courage.
The actual forms of checks and balances that the Americans incorporated into their Constitution in 1787, however, were derived from English precedent and from American colonial experience, rather than directly from the Roman model. Instances from the history of the Roman Republic, nevertheless, were cited by the Framers and by other leading Americans of that time as reinforcement for the American concept of political checks and balances.
The Americans’ vision of a great and growing republic, it may thus be seen, owed much to the annals of the Roman Republic. The Roman Republic failed because of long civil wars in the first century , and it was supplanted by the Roman Empire. This Roman experience, and the decadence that fell upon Roman civilization as the centuries passed, were much in the minds of American leaders near the end of the eighteenth century. The grim consequences of political centralization under the Roman Empire convinced many Framers that an American government should be federal rather than central—just as some delegates pointed to the Greeks’ disunity as a warning against leaving the American Republic a weak confederation. Besides, Roman struggles of class against class reminded Americans that they must seek to reconcile different classes and interests through their own constitutional structure.
Thus Rome’s political and moral example was a cautionary lesson to Americans of the early Republic. Edward Gibbon’s great history The Decline and Fall of the Roman Empire had been published between 1776 and 1783, the period of the American Revolution, and its details were vivid in the minds of the delegates at Philadelphia.
Yet it will not do to make too much of the influence of the Roman constitution upon the Constitution of the United States, two thousand years after Polybius wrote in praise of Roman character and institutions. The more immediate and practical examples of constitutional success were the British and the colonial political structures. The American Republic was joined with England and with her own colonial past by a continuity of culture that much exceeded the Americans’ link with old Rome, so distant and so remote in time.
It was the aspiration of the delegates at Philadelphia in 1787 to reconcile the need for a strong federal government with the demand for State sovereignty, local autonomy, and personal liberty. They could not find in the history of the ancient world any model constitution that might achieve this purpose. In 1865, nine decades after the Great Convention at Philadelphia, Orestes Brownson—one of the more interesting of America’s political thinkers—would write in his book The American Republic that America’s mission under God was to realize the true idea of the political state or nation. America’s mission, Brownson believed, was to give flesh to that concept of the commonwealth “which secures at once the authority of the public and the freedom of the individual—the sovereignty of the people without social despotism, and individual freedom without anarchy. … The Greek and Roman republics asserted the state to the detriment of individual freedom; modern republics either do the same, or assert individual freedom to the detriment of the state. The American republic has been instituted by Providence to realize the freedom of each with advantage to the other.”
Certainly such a high ambition, surpassing the political achievements of the ancient world, was the spirit of 1787 at Philadelphia.
English Origins of America’s Constitution
“The American Constitution is distinctively English,” wrote Sir Henry Maine in his book Popular Government (1885). Why should the Americans of 1787, so recently at war with Britain, have drawn up a constitution incorporating among its principal features institutions and principles long established in England? Because they, like their ancestors, were familiar with those British constitutional features and found them desirable; also because colonial charters and the constitutions of the Thirteen States had been framed on the British model, for the most part, and Americans had grown accustomed to their operation. Besides, the great majority of American citizens were British citizens who spoke English, read English books, enjoyed “the rights of Englishmen,” and participated in a culture basically English.
There are, of course, a number of important differences between the English and American constitutions that should be understood. As we noted earlier, the English Constitution is not a “written” constitution. That is, it is not contained in any single document like the American Constitution of 1787. It consists, rather, of (1) certain charters and statutes that are regarded as part of the fundamental law, (2) principles derived from the common law, and (3) a great variety of political and legal customs and traditions. Statutes that enjoy a constitutional status are those which deal with the distribution and exercise of power, and those which guarantee certain freedoms. Three great political documents which are essentially compacts or agreements between the Crown and the Nation (the people and their representatives) stand out as prominent landmarks in English constitutional history. These are Magna Charta (1215), the Petition of Right (1628), and the Bill of Rights (1689), which constitute, in the words of the great parliamentary leader Lord Chatham, “the Bible of the English Constitution.” Many of the individual rights guaranteed in these documents, as we shall later observe, reappear in our first State constitutions, in our Federal Constitution, and in our Bill of Rights. The “law of the land” clause in Magna Charta, for example, which later came to be known as “due process of law,” will be found in the Fifth and Fourteenth amendments of the United States Constitution. Magna Charta is often regarded as the foundation of Anglo-American liberties, because it established the principle that all Englishmen, not just the Lords, are entitled to personal liberty, and that no man, including the King himself, is above the law.
Another and actually more fundamental difference between the English and American constitutions concerns the question of sovereignty. Sovereignty signifies the highest governmental or legal authority. Under the English Constitution, legal sovereignty resides in Parliament. Parliament, in other words, is supreme, and its authority cannot be challenged by the Crown or the judiciary. There is no supreme court, as in the United States, which has the right to declare an act of Parliament unconstitutional. Parliament decides for itself whether its laws are constitutional. Throughout British history, and particularly during the American revolutionary period, certain statutes were challenged on the ground that they were “unconstitutional.” American political leaders, for example, claimed that the Stamp Act, imposing a tax, was “unconstitutional.” By this they meant that in their judgment the statute conflicted with basic English liberties and should be repealed. Their appeal was to Parliament, because the English courts did not have jurisdiction over such a claim. By contrast, sovereignty in the American constitutional system is in the Constitution itself, which is declared to be the supreme law of the land. If a party claims that a certain act of Congress is “unconstitutional,” not only may he seek to persuade Congress to repeal the statute, but also he may be able under certain conditions to take his case to court and obtain a judicial ruling on the question.
The English and American political systems are also distinguishable on the basis of separation of powers. The English have a parliamentary system of government, whereas the Americans have a presidential system. Under both systems, the functions of government are separated into legislative, executive, and judicial branches, but there is no clear separation of personnel under a parliamentary system. The real executive in the English system is not the King but the cabinet, which is made up of the King’s ministers. Members of the Cabinet, however, also hold a seat in Parliament. The Prime Minister, for example, actually holds a seat in the House of Commons (the lower house) and is the leader of the majority party of that body. The President of the United States, on the other hand, is more independent of the legislature. He is elected by the nation at large, not by the members of Congress. He may actually be a member of a political party that is in opposition to the majority party in control of one or both houses of Congress. Unlike in the English system, members of the House of Representatives and Senate are forbidden by the Constitution from serving in the executive branch. How and why the Americans departed from the English example of separation of powers will be the subject of later discussion.
In many other ways, however, the two constitutions are quite similar, and the British influence may readily be discerned. Congress and Parliament are bicameral legislatures, consisting of two houses. Members of the House of Commons, like those of the House of Representatives, are elected from single-member districts for relatively brief terms. A speaker presides over both chambers, though the speaker of the House of Commons is a neutral figure who does not vote or participate in the proceedings. Both houses are regarded as the “lower” houses and have many more members than the “upper” houses. Because they are subject to more frequent elections and represent a smaller constituency, the members of the House of Commons and the House of Representatives are also commonly regarded as “closer to the people.” The House of Lords has ceased to function as an independent body equal to the House of Commons, and nowadays is quite unlike the powerful United States Senate. In 1787, however, there were some similarities. Although the Senate was established to represent the several States rather than an American “nobility,” both the Senate and the House of Lords were regarded as smaller, more exclusive bodies that would serve as a moderating influence on the more populous lower houses. Both were free of direct popular control; many (but not all) members of the House of Lords held their seats by inheritance, and Senators were elected by the State legislatures rather than by the people. Bicameralism was thus favored in both England and America as a device for restraining the legislature. By representing different constituencies, with different interests, in two chambers instead of one, no single interest or single class, it was argued, would dominate the entire legislative branch.
Likewise, the Federal judicial system adopted by the Framers in 1787 bore the stamp of the English Constitution. Under both constitutions, the judiciary has been established as an independent branch, largely though not completely free of legislative and executive control. The judges are appointed by the executive for unspecified terms, remain on the bench as long as they exercise “good behavior,” and may not be removed from office except by impeachment. Their salaries may not be reduced by the legislature while they serve. This strengthens their independence by preventing an angry legislature from attempting to influence the judicial process through manipulation of judicial salaries.
In many other ways, American constitutionalism, written or unwritten, is rooted in British practices and customs. Almost without exception, all of the individual liberties, including political liberty and the right of property, that are guaranteed in the Federal and State constitutions may be traced to English precedents. Representative government, or what we call the republican tradition, is the bedrock of American constitutionalism. But it is a tradition inherited from Great Britain, and American revolutionary leaders generally regarded the right of representation as the most fundamental right they possessed. To be sure, a principal constitutional grievance of the colonists was the lack of American representation in Parliament—“taxation without representation.”
The Growth of Parliament
In contrast to the democracies of the ancient world or of the medieval and renaissance city-states of Italy, there arose in England, by stages, what we now call representative government, through the summoning of an assembly called Parliament. Various forms of representative government had developed in western Europe late in the Middle Ages and down to the late eighteenth century; but of these the English form, with its House of Lords and House of Commons that made up the Parliament, was the most successful and powerful. The origin of Parliament may be traced back to the King’s councils (Witans) under the Anglo-Saxons, who ruled England before the Norman invasion in 1066, but some historians prefer to mark the beginning in 1215. This was the year when the English barons compelled King John to grant them a great charter (Magna Charta), which bound the King to extend certain basic liberties to all “freemen.” A more precise point of origin, however, is the year 1295. On that date, King Edward I summoned what became known as the “Model Parliament” because it served as the model for all succeeding Parliaments. Here, for the first time, the right of all classes to be represented in Parliament was permanently established. The barons (the English nobility) and the Bishops and other high ranking members of the clergy joined together as the “Lords Temporal and Spiritual” to form the House of Lords. Two knights from every shire (county) and two burgesses from every town or borough were also summoned, and these freemen or “commoners” joined together to form the House of Commons. “What concerns all, should be approved by all.” These words appeared in the writs (written orders in the form of letters) sent out by Edward when he summoned the Model Parliament. Edward wanted to raise taxes, and taxation to support Edward’s wars concerned all. The Model Parliament granted him that monetary aid, and from this time forward it was understood that the King could not levy a tax without the approval of Parliament. Here too was the birth of the constitutional principle around which the Americans rallied five centuries later: “No Taxation Without Representation.” Gradually this “power of the purse” passed into the hands of members of the House of Commons. Under the American Constitution, as the English, the power to initiate tax revenue measures is considered to be so important that only the lower houses may propose money bills. “All bills for raising Revenue,” states Article I, Section 7 of the Constitution, “shall originate in the House of Representatives.”
By the middle of the fifteenth century, something like real representative government had taken shape in England. In theory, at least, the law was supreme. The King was bound by oath to respect the laws; he could not change the laws or impose new taxes without Parliament’s consent. Through elections held in county courts and boroughs, the people of England chose individuals from their own number to represent them in the House of Commons, whose members were privileged against interference or even ordinary arrest. The power of impeachment prevented, or at least curbed, arbitrary acts or corrupt practices among the King’s servants. About the middle of the fifteenth century there was no real hostility between the House of Lords and the House of Commons. As the end of medieval times approached, England knew more of liberty, order, and justice than did any other country.
The coming of the strong-willed Tudor sovereigns of England during the sixteenth century delayed for more than a hundred years the growth of Parliament’s powers. By manipulating elections or by threatening to use force, the Tudor kings and queens dominated their Parliaments, even if they respected the outward form of England’s Constitution. After James I became England’s first Stuart king at the beginning of the seventeenth century, the contest between kings and Parliament was resumed.
This struggle led to civil war during the reign of Charles I (James’s son), and to the execution of the King himself by the triumphant forces of Parliament and the Puritan faction in the Church (1649). When the monarchy was restored under Charles II, an uneasy compromise was reached between the Royalists and the champions of Parliament.
The accession to the throne of James II, a Catholic, brought on the opposition of the great landed proprietors of England and of most of the English people, who were overwhelmingly Protestant. In 1688 James was forced to flee abroad. He was succeeded as sovereign by the Protestant William III, from the Netherlands, the husband of James’s daughter, Mary.
To secure the throne, William III was compelled to recognize the supremacy of Parliament. From 1689 forward, the royal influence over government in England tended to diminish, and the power of Parliament—that is, of the English form of representative government—tended to increase.
In 1714, George, King of Hanover, came over from Germany to be enthroned as George I of England. Throughout the eighteenth century Britain was ruled by three Georges, of whom the first two were unfamiliar with English ways, so that political power inclined toward Parliament and parliamentary political parties. George III, hoping to rule as a “Patriot King,” tried to restore much of the royal authority, and in doing so he helped to bring on the American Revolution.
The Challenge of Parliamentary Supremacy
Though not always clearly perceived in England or in the colonies, the English Constitution, it may thus be seen, had changed much since the time of Charles I, and there were often conflicting precedents. The constitutional conflicts of the early seventeenth century centered around a struggle for power between the King and Parliament, whereas the American revolutionary struggle pitted the American colonists and their provincial assemblies against Parliament. The supremacy of the King had been displaced by the supremacy of Parliament, and it was a complicated and confusing task to sort out the arguments against one form of supremacy and apply them to the other. This much the colonists did know: that a legislature could be just as tyrannical as a king, and that in fact it was often more difficult to deal with an entire assembly of tyrants than with one. The reign of Oliver Cromwell following the execution of Charles I in 1649 plunged England into a state of despotic rule that far surpassed the excesses of the Stuart kings and taught the Anglo-Americans the hard lesson that unchecked power can lead to tyranny no matter who wields it.
As we noted earlier, the Glorious Revolution of 1688–89 was an important turning point in English constitutional history. As a result of this bloodless revolt against the monarchy, Parliament became the real sovereign of Great Britain, and parliamentary supremacy became a permanent fixture of the English Constitution. The system adopted was, in effect, a limited or constitutional monarchy. England would thereafter be governed by Parliament and its leaders, or what the English call “the King-in-Parliament” in recognition of the monarch’s titular sovereignty. Parliamentary sovereignty was formally established in the famous Act of Settlement of 1701, which confirmed the right of Parliament to determine the line of succession to the throne. The English Constitution, it must be kept in mind, clings to the legal fiction that it is the “King (or Queen)-in-Parliament” that rules the nation, when in reality the monarch is little more than a figurehead. American revolutionary leaders understood this; and although the grievances against Great Britain enumerated in the American Declaration of Independence in 1776 are directed against King George III, almost everyone on both sides of the Atlantic understood that it was the supremacy of Parliament, speaking through its leaders (the “King’s Ministers”), that was actually being challenged. King George was no innocent bystander, to be sure, but the man in charge was Lord North, the Tory leader of the majority party in Parliament.
During the eighteenth century, it should be noted, there were two political parties competing for power in Parliament, the Whigs and the Tories. These parties came into existence as a result of the constitutional and religious struggles of the seventeenth century, and by 1680 the names Whig and Tory were commonly used to designate respectively those members who opposed the Stuart claim that sovereignty resided exclusively in the Crown and those who supported it. The Whigs found support for their constitutional theories advocating a limited or constitutional monarchy in the writings of John Locke, whereas the Tories tended to rely on the works of Sir Robert Filmer, Thomas Hobbes, and the proponents of royal absolutism to support a doctrine of non-resistance that favored a strong monarchy. The Whigs emerged victorious in the Revolution of 1688 and were able to dominate Parliament until 1760.
In 1763, a new Tory government began enacting “tax reform” legislation designed to tighten the control of the mother country over the American colonies and to increase revenue. These reforms, altering the constitutional relationship between Great Britain and the colonies and weakening the political rights of the colonists, led directly to the American Revolution. The King, the King’s friends, and some Whigs must share the blame with the Tories, however, in causing the colonial rebellion.
There were many British who joined with the Americans and agreed with colonial leaders that Parliament had overstepped its bounds. Though a monarchist, the great English jurist and legal scholar Sir William Blackstone sided with the Americans in the great constitutional debate between the mother country and the colonies. So too did a number of Whigs in the House of Commons, especially the Irish statesman Edmund Burke, who became the most ardent champion of the American cause. Burke’s eloquent speeches were widely read in the American colonies, and his constitutional views had a powerful impact on the American mind. So popular was Burke in America that in 1771 the New York Assembly hired him to represent the colony and defend its interests as its London agent. As a result of his leadership in opposing the doctrines of the French Revolution, Burke would later become the principal architect of the conservative political tradition that came into being in the next century, and the founder of a political movement in Great Britain that led eventually to a major party realignment in which the Whigs and Tories were supplanted by the Liberal and Conservative parties.
In his celebrated Speech on American Taxation (1774), Burke assailed the repressive tax measures enacted by Parliament in retaliation for the Boston Tea Party. The King’s ministers, he charged, had taken the principle of legislative supremacy beyond its constitutional limits. “Revert to your old principles,” he said, and seek peace with the Americans. “Leave America, if she has taxable matter in her, to tax herself.” If parliamentary sovereignty is not reconciled with freedom, he warned, the Americans “will cast your sovereignty in your face. Nobody will be argued into slavery.”
More powerful yet was Burke’s Speech on Conciliation with the Colonies (1775), in which he pleaded for moderation and restraint and warned his colleagues that they had seriously underestimated the Americans’ love of liberty. “This fierce spirit of liberty,” he observed, “is stronger in the English colonies … than in any other people of the earth. … They are therefore not only devoted to liberty, but to liberty according to English ideas and on English principles.” They will not rest until they are given an “interest in the Constitution” and representation in Parliament on an equal basis with other British subjects. Equal representation, he reminded the House, is “the ancient constitutional policy of this kingdom,” and without it there can be no equity or justice in taxing the colonies. Blinded by power, believing they could crush the American insurgents, Lord North and his ministers, as well as most members of Parliament, ignored Burke and his small circle of Whig supporters. Within weeks, the first shots of the war were fired at Lexington and Concord. History, of course, proved Burke right, and as a piece of political and constitutional wisdom his famous Speech on Conciliation has endured down to our time.
The Common Law Tradition
Most of the delegates to the Philadelphia Convention, active in colonial affairs before the Revolution, understood not only the British government of the North American colonies, but also the British legal system; some had occupied public office before the Americans declared their independence. With few exceptions, the fifty-five delegates had paid close attention to the eighteenth-century Constitution of Britain and to English law; and about half of them had been judges or lawyers who were deeply read in Sir William Blackstone’s monumental treatise Commentaries on the Laws of England. A great compendium of learning on constitutional principles, the rights of Englishmen, and the laws of property, the Commentaries were based on Blackstone’s lectures at Oxford University. They soon became the bible of the legal profession. First published in 1765, the work was enormously popular among American lawyers, so much so that as many copies were sold in the colonies as in the mother country. American colonial leaders repeatedly drew from this timely and authoritative source in challenging the policies of the English government and drafting their own fundamental laws. The indictment of George III in the Declaration of Independence is amply supported by Blackstone’s description of the rights of Englishmen, and it was for these rights, among others, that the patriots were contending. Such terms in the American Constitution as “crimes and misdemeanors,” “ex post facto laws,” “judicial power,” “due process,” and “levying war” were used in the same sense in which Blackstone had employed them. In like manner, most of the early State constitutions drafted in 1776 were influenced by the Commentaries, and these in turn were copied in part by the newer States joining the Union. Thus the language of both the Federal and State constitutions in the United States cannot fully be understood without reference to the English common law. And Blackstone’s classic, which is still being reprinted today, has generally been accepted as the best exposition of that law.
Prominent American lawyers such as James Iredell of North Carolina, who later served on the Supreme Court of the United States, and John Dickinson of Pennsylvania (and later Delaware), who received his legal training in England and was a delegate to the Federal Convention, were also acquainted with the judicial opinions and legal writings of Blackstone’s predecessor—the great Sir Edward Coke (pronounced Cook). Before Blackstone’s Commentaries appeared, English and American lawyers relied heavily upon Coke’s Reports and his four-volume Institutes of the Laws of England to learn the principles of the common law; and even after the Commentaries came into use, Coke’s writings were still thought necessary for a complete mastery of property law. What particularly interested American lawyers in the eighteenth century were Coke’s judicial opinions of the early seventeenth century, which supported the supremacy of the law, and his opposition to the King’s interference in judicial affairs in defense of the principle of an independent judiciary. Coke had challenged the claims and pretensions of the Stuart kings and had helped to prepare the way for the independence of both Parliament and the English courts. More than a century later, the Americans found Coke’s arguments useful in challenging the doctrines of legislative supremacy and the claims of Parliament respecting control and domination of colonial affairs. In Dr. Bonham’s Case (1610), for example, Coke asserted that the common law controlled even acts of Parliament—a dictum that would prove useful to James Otis of Massachusetts when he argued in the famous Writs of Assistance Case of 1761 that Parliament had no right to authorize British customs officials to issue general search warrants (without naming any persons). “An Act against the Constitution is void,” declared Otis. “An Act against natural equity is void. … [and the] Courts must pass such Acts into disuse.” Otis repeated this argument in his formal treatise Rights of the British Colonists Asserted and Proved (1764), which contended that parliamentary supremacy was limited by the English Constitution and “the laws of God,” and that taxation without representation was therefore unconstitutional.
“There is no jewel in the world comparable to learning,” wrote Coke, and “no learning so excellent both for prince and subject as knowledge of laws; and no knowledge of any laws (I speak of human) so necessary for all [social classes] and for all causes concerning goods, lands, or life, as the common laws of England.” The common law that Coke so greatly admired had evolved over the centuries as a body of legal principles for determining the rights and duties of individuals respecting their personal security and property. It was judge-made law, developed not by parliamentary statutes or royal edicts of the King but by the King’s judges, through the accumulation of judicial decisions. The American system of property and contract law, to cite just two examples, may be traced back to general rules based on common sense, habit, and custom that gradually evolved in the English courts. Sir Matthew Hale, an eminent English judge of the seventeenth century, boasted that the common law was superior to other legal systems because it is “not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men.”
The different system of jurisprudence called civil law (or Roman law), on the other hand, is derived from legislative enactment. It was based originally upon the system of laws administered in the Roman Empire, particularly as set forth in the compilation of the Emperor Justinian 529. The jurisprudence of continental Europe, Latin America, and many other parts of the free world is based upon the civil law. The ecclesiastical and administrative courts of England, including the infamous Court of Star Chamber, also applied the civil law, which relied upon different rules of evidence and tried cases before a judge without a jury. The legal system of the State of Louisiana is also based in part on the civil law because of the influence of the French in that region before Louisiana became a part of the United States. In 1804 Napoleon Bonaparte, Emperor of France and military dictator over much of Europe, reduced the enormously complex and disorganized body of ancient civil law to a single written code. The Code Napoleon was widely copied or utilized and soon displaced the Justinian Code and other earlier codifications. It serves today as the modern expression of the civil law.
The English common law runs all the way back to Anglo-Saxon days in England, but it did not begin to take shape until late in the twelfth century during the reign of Henry II. It passed into North America with the coming of the first English settlers to the New World, and over the centuries was incorporated into the American system of laws by legislation and judicial decisions.
In England, the common law is an essential part of the English Constitution. In America, the common law is not mentioned in the written Constitution of 1787, but common law principles underlie much of our “invisible” or “unwritten” constitution. Some provisions of the Constitution, such as the one referring to “contract” in Article 1, Section 10, presume the existence of the common law and cannot be understood properly without reference to it. Although most of Anglo-American common law has been superseded by State constitutions and laws, it is still recognized in courts of law and may even serve as a rule of decision.
This is more true in State courts than in those at the Federal level, because Federal courts are not courts of general or common law jurisdiction. At the time of the Constitutional Convention in Philadelphia, and for some forty years later, Americans debated whether England’s common law should remain effective in the United States. Opponents of the common law argued that the Revolution had terminated application of English legal concepts to America. In the period immediately following the American Revolution, there was much opposition to everything English, including the common law; and in the early nineteenth century some American lawyers favored legislative codification of the common law along the French model. Much of this opposition stemmed from the fact that American law reports and legal treatises were scarce, and it was difficult even for lawyers to know what the law was and what features of the English common law had been adapted to American circumstances. The impetus to abandon the common law collapsed in the early nineteenth century, however, when great American legal scholars and jurists such as Joseph Story and James Kent began publishing books on American law.
Sir Francis Bacon, Coke’s great political rival, was another important English jurist and legal writer who had a great following in the American colonies. In addition to his famous Essays and philosophical works, Bacon published a number of books on the law, including Elements of the Common Law and Maxims of the Law. Among lawyers, Bacon was probably best known for his genius at stating the principles and philosophy of the law in concise, memorable, and quotable aphorisms, and for his efforts as Lord Chancellor to strengthen equity jurisprudence and check the power of the common law judges. Equity, or chancery as it is sometimes called, denotes fairness, and consists of a body of rules outside of the common law that are intended to produce justice. It begins where the law ends; it supplements the common law. Under the common law, for example, there could be no relief in the way of compensation for a wrong committed against an individual until the injury had actually occurred. This worked a hardship in some cases, however, if an individual was permitted to engage in dangerous activity or was in possession of hazardous property or material likely to produce injury. Equity courts in England, like ecclesiastical and administrative courts, were separate from the common law courts, and were empowered to grant relief where the courts of law were unable to give it or had made the law so technical that it failed to promote the “King’s justice.” Equity courts thus had the power to issue injunctions (orders forbidding a party to do some act) in order to prevent an injury from occurring. In some instances they were allowed, in effect, to circumvent rulings of the common law courts by providing remedies that the common law courts could not give. As Lord Chancellor under James I, Sir Francis Bacon presided over the equity courts as the “Keeper of the King’s Conscience.” In this role he frequently came into conflict with Sir Edward Coke, who headed up the common law courts.
After the American colonies gained independence, most of the States, with the notable exception of New York, combined law and equity in one court, abolished separate courts of chancery, and extended the judicial power to both law and equity. The Framers modeled the Constitution along the same lines. Since 1789, when the first Judiciary Act was passed by Congress, Federal judges have thus been required to have some knowledge of Anglo-American equity law in order to carry out their duties. Because the equity power is not defined in the Constitution and tends to expand the power and jurisdiction of the Federal courts, it has played a significant role in the growth of judicial power, especially in recent times. Indeed, some Anti-Federalists warned that the fusion of law and equity in the Supreme Court might degenerate into arbitrary judicial discretion, allowing the judges to exceed their powers and ignore the law in the name of “justice.” The equity jurisprudence we inherited from England is limited by general rules, however, and it does not authorize the judges to rule as they please. Its proper application thus requires judicial self-restraint.
It is noteworthy that the first great constitutional quarrel between the English and the Americans, prompted by the Stamp Act of 1765, was based on a claim that the statute violated both constitutional and common law rights. The Act provided a stamp tax on the issuance of college diplomas, licenses, commercial paper, deeds of property, leases, and land grants, and on sales of newspapers, pamphlets, and printed advertisements. Even sales of playing cards and dice were subjected to the tax. The Act further stipulated that prosecutions for violations of the law would be tried not at common law, as constitutional custom dictated, but in vice-admiralty courts. These were administrative courts which relied on the civil law and did not use juries. Lord North’s administration was persuaded that the Act would not be enforced in the regular courts of law because local juries would sympathize with colonial defendants.
The Stamp Act was repealed before it could be enforced, but not before Americans loudly protested. Among the most cherished common law rights in both England and America was the right of trial by jury, which had traditionally provided an essential check on government and protected the rights of property and individual liberty. Trial without jury, Maryland legislators argued during the Stamp Act crisis, “renders the Subject insecure in his Liberty and Property.” The New York assembly asserted that trial by jury was “essential to the Safety” of the “Lives, Liberty, and Property” of British subjects, and the Virginia House of Burgesses echoed these sentiments, insisting that it was “the surest Support of Property.” Speaking for the citizens of Braintree, Massachusetts, John Adams declared that the Stamp Act was “unconstitutional” because “we have always understood it to be a grand and fundamental principle of the Constitution that no freeman should be subject to any tax to which he has not given his own consent, either in person or by proxy.” But, said Adams, “the most grievous innovation of all is the alarming extension of the power of courts of admiralty. In these courts, one judge presides alone. No juries have any concern there.” The denial of jury trials, he concluded, “is directly repugnant to the Great Charter itself; for, by that charter, ‘no freeman shall be taken, or imprisoned, or disseized of his freehold … but by the lawful judgment of his peers, or by the law of the land.’ ”
Thus the Stamp Act, here at the outset of the constitutional struggle that led to the American Revolution and the Philadelphia Convention, threatened two basic constitutional rights—the right to be taxed only by consent and the right to trial by jury. More than any other law of Parliament, this Act eroded the colonists’ faith in British rule, and from this point on relations between the mother country and her rebellious colonies steadily deteriorated; and with each new statutory effort by Parliament to discipline and subdue the colonies came another assault on the common law and the constitution. Seeking not new rights but merely the preservation of those threatened or denied by a headstrong Parliament, the Americans slowly and reluctantly came to the conclusion that only by declaring their independence and establishing their own constitutions, laws, and bills of rights could they enjoy the constitutional and common law “rights of Englishmen.”
The Republican Tradition and the Struggle for Constitutional Liberty
In responding to the radical policies and innovative constitutional doctrines of King George and his Tory ministers, the Americans were also much attracted to John Hampden and Algernon Sidney, whose names were virtually synonymous with constitutional liberty. Hampden was the leader of a local tax revolt that shook the foundations of royal absolutism in seventeenth-century England. In the Petition of Right of 1628, the King had bound himself never again to imprison any person except by due process of law, never again to circumvent the regular courts through court martial trials by commissions, never again to quarter soldiers in private homes without the consent of the householder, and never again to raise money without the consent of Parliament.
There was, however, a potential loophole concerning the limitations imposed on the King’s power to levy a tax by virtue of a longstanding practice which permitted the throne to issue special writs calling for a tax in time of emergency. These writs, however, had been imposed only on the port towns of England because their purpose was to raise money for ships of the Royal Navy. Charles I, anxious to build more ships, issued a writ in 1636, clearly in violation of the spirit of the Petition of Right, extending the system inland—to all of the counties. There was no national emergency, but Charles declared the existence of one anyway, and argued that the inland counties should pay because they too enjoyed the protection of His Majesty’s Navy.
Many declined to pay, declaring that the King’s writ was a tax levied without parliamentary authority. A member of the House of Commons, John Hampden had vigorously opposed the arbitrary rule of the crown for many years. In the famous Ship Money Case of 1637, he was tried for refusing to pay the small sum of twenty shillings assessed upon his land, claiming that Charles had no authority to declare a national emergency on his own, and that the writ itself violated his property rights. Although Hampden lost his case, the judges’ decision was later stricken from the rolls. Hampden became a popular hero in both England and the American colonies, and a symbol of resistance to oppressive taxation and arbitrary government. A monument memorializing Hampden’s courageous stand against the ship money tax remains to this day in his native village of Great Kimble: “Would 20s. Have Ruined Mr. Hampden’s Fortune? No, But The Payment of Half 20s. On the Principle it was Demanded Would Have Made Him a Slave.”
The Ship Money Case was cited by American lawyers in their battle with Parliament over the latter’s taxing powers, and the constitutional doctrine that the executive has a special prerogative, or reserved power, to rule by decree in times of crises was rejected by the Framers. The American constitutional tradition has never embraced the doctrine of royal absolutism that emergencies create power. Unfortunately, not all nations of the world have learned the lessons of history as well as the Americans. Invoking so-called “emergency powers” has been a favorite executive device for seizing “temporary”—and then permanent—dictatorial control of government in modern democracies, and to this day there are foreign constitutions which confer this dangerous power on the chief executive.
Algernon Sidney, beheaded on a London scaffold in 1683 for the crime of treason, left a different mark on the American mind. Falsely accused of participating in a plot to murder the King, he was arrested and brought to trial by his political opponents before the infamous Chief Justice George Jeffreys, whose cruelty and misconduct on the bench were a disgrace to the English judiciary. Throughout much of the seventeenth century, the courts of England were subjected to political manipulation and control. The Stuart kings had begun the policy of removing judges who disagreed with them, but the Puritans under Cromwell went further by filling the bench with subservient judges, Jeffreys being the worst of the lot.
The Puritans treated Magna Charta, parliamentary government, and the rule of law with contempt, acting in a far more arbitrary fashion than any English king had ever dared to attempt. In the trial of Sidney, principles of due process and established rules of criminal procedure were deliberately violated by the court. The indictment charging Sidney with treason was issued without a grand jury proceeding. He was refused a copy of the indictment. The jury was handpicked to exclude jurors who might declare him innocent. Perjured testimony and hearsay (second-hand) evidence were introduced against him. Sidney had committed no overt act against Charles II, but the court devised a farfetched interpretation of the treason statute to gain a conviction. An unpublished manuscript found among Sidney’s personal papers was then produced in court as proof of his treasonous behavior. This was the Discourses Concerning Government, a treatise on liberty which praised limited and “mixed” government, denied the divine right of kings, and asserted that “power is originally in the people” and that “the king is subject to the law of God.” These and similar non-treasonous statements were interpreted by the court as proof that Sidney was involved in a plot against the King’s life, and he was convicted on that fraudulent basis.
The Discourses were later published in 1698 and again in 1763 and 1772. The work was hailed in America by Jefferson and other colonial leaders. The two-volume book, though less coherent or profound than John Locke’s political writings on the same subjects, served along with Locke’s Two Treatises of Government as an inspiration to Whigs in the colonies and as one of the main arsenals from which the American revolutionary writers drew their arguments. But Sidney’s life, trial, and martyrdom probably had greater influence on American thinking, and many a patriot who had never even read the Discourses appealed to Sidney’s memory as a symbol of defiance to tyrants. Sidney’s trial in particular served as a glowing reminder to American constitution-makers of the need for an independent judiciary that respected rule of law and judicial restraint. Both Hampden and Sidney were held in such high esteem that in 1776, under the leadership of Patrick Henry, James Madison, and other prominent figures, a school was founded in Virginia bearing the name Hampden-Sydney College.
It should be borne in mind, however, that not all of the American colonists were persuaded that a monarchy was necessarily a bad form of government, or that Sidney’s Discourses were politically or philosophically sound. It has been estimated that at least one-third of the Americans were Tories or Loyalists, who opposed independence. Many believed that a limited constitutional monarchy was preferable to a republican form of government, or what was then often called a commonwealth. Their position was not wholly untenable, or so absurd as Thomas Paine made it appear in his famous tract Common Sense. King George III was no Henry VIII or Charles I. In 1776, royal absolutism was a thing of the past, and the English Constitution had changed much since the days of Hampden and Sidney. Besides, the English experiment with republicanism, when Cromwell and the Puritans tyrannized Britain, had been a catastrophic failure. Why blame the King, they asked, when it was the leaders of Parliament who were really at fault for the deprivation of American rights. Parliamentary sovereignty, not the monarchy, was the problem. The French Revolution that began in 1789, far exceeding the crimes and human atrocities of Cromwellian England, would later show that radical republicanism, if unrestrained, might degenerate into anarchy and mob rule. Under the rule of Robespierre, the French actually lapsed into a period of totalitarian democracy, the first the world had ever seen, followed by the rise of a young army captain named Napoleon Bonaparte, who became the first modern dictator, crowned himself Emperor, and plunged all of Europe into nearly two decades of war, death, and destruction. In retrospect, then, it may be seen that the case for a limited constitutional monarchy was not as weak as some maintained. Even today we are struck by the fact that Great Britain, the Netherlands, Sweden, and other regimes that have kept the throne and have evolved into a limited constitutional monarchy have been among the freest and most stable democracies of modern Europe.
A few Americans entertained the notion that perhaps George Washington should be crowned the American king; and there were rumors that John Adams and Alexander Hamilton harbored monarchist sentiments. But Washington never took it seriously, and the charges against Adams and Hamilton were false. Many American political leaders, especially Hamilton, did greatly admire the English Constitution, however, even though they agreed with the great majority of their countrymen that American society, lacking a permanent aristocracy or class system like that of England, was not suited for a monarchy. No proposal to establish such a system was ever made at the Philadelphia Convention, the Framers being unanimously agreed that a republican form of government, though difficult to maintain, was the best system for the people of the United States.
The extent to which the writings of Sidney and Locke contributed to the increasing disenchantment with monarchy and the growing popularity of republicanism among the American people cannot easily be measured. Among the educated class, however, their works were read widely and often discussed. Although James I had published a defense of monarchical government early in the seventeenth century, the principal book was Sir Robert Filmer’s Patriarcha (1680), a learned treatise which argued nevertheless that the King ruled by divine right and could trace his line of authority back to Holy Scripture. Sidney denied the validity of the theory in his Discourses, and Locke repudiated it in his First Treatise of Civil Government. With the notable exception of Jonathan Boucher, a Tory preacher from Maryland who published a defense of Filmer and ridiculed the doctrines of Locke, few Americans seem to have been much persuaded by Filmer. With many other Loyalists, Boucher eventually fled the colonies, never to return. What sentiment there was for monarchical government effectively vanished with the massive emigration of the Loyalists to Canada and the mother country during the Revolution.
Far more influential than any of these writings, however, was Locke’s Second Treatise of Civil Government, which sought to provide a theoretical justification for the Glorious Revolution, and presented a view of government based on the theory that all men possess certain “natural rights” which government has a duty to protect. Though Locke’s understanding of the origin and purpose of civil society was unhistorical and logically unsound, as Boucher and the Scottish philosopher and historian David Hume were quick to point out, his natural rights philosophy was sometimes invoked by American revolutionary leaders to buttress their arguments against the legitimacy of British colonial policies. Americans were entitled not only to the rights of Englishmen, some maintained, but to the “natural rights of life, liberty and estate” (Locke’s phrase) common to all mankind.
The Influence of Continental Thinkers
It should come as no surprise that only a handful of contemporary European thinkers on the continent had much influence in the colonies. Most European states were governed by powerful monarchs who were strangers to constitutional government. Germany and Italy, divided into principalities, did not even exist as sovereign nations. Although the Europeans had experimented with confederation government, political power was almost everywhere centralized, and there was no tradition, as in the American colonies, of local self-government to serve as a model for building a modern federal system with two levels of government. The predominant view in Europe, as expressed by Jean Bodin in his De Republica (1576), was that national sovereignty could not be divided and was “unrestrained by laws.” The European legal system, based on the civil law of ancient Rome, but differing from one nation to the next because of the infusion of local customs and practices, differed substantially from Anglo-American common law. It was far less hospitable to the kinds of civil liberties that the English-speaking peoples had come to expect, and as we have already seen did not even allow for jury trials.
A few educated Americans were familiar with the works of some of the great international law jurists—Jean Jacques Burlamaqui, Emmerich Vattel, Samuel Pufendorf, and Hugo Grotius—who wrote on the law of nations and had much to say about the meaning of justice and ethical practices in international relations; but probably the bulk of their influence in America came later, after the United States had become an independent country, adopted the Constitution, and entered into diplomatic relations with foreign governments.
There was considerable intellectual activity in France, which in the eighteenth century had become the center of radical political theory; but the Americans showed little interest, and when they did, as in the case of John Adams, they often expressed profound disagreement. Few American leaders embraced the wild and visionary doctrines of Jean Jacques Rousseau (the patron saint of French revolutionaries), or subscribed to the views of Helvetius, Turgot, or Condorcet. Holbach’s System of Nature (1773), an attack on religion and government anticipating in many respects the ideas of Karl Marx, seems to have had few if any followers in the American colonies. Many of the French works, in fact, had not been translated into English.
The single great exception was Charles Montesquieu’s Spirit of the Laws (1748), one of the most widely read and frequently cited authorities relied upon by the Americans in framing a new system of government. Montesquieu did not advocate utopian solutions to the problem of despotism in his age. He favored constitutional reform. His practical aim was to analyze the constitutional conditions upon which freedom depends, in the hope of restoring the ancient liberties of Frenchmen. The Spirit of the Laws provided a learned, though not always correct, analysis of governments of all ages and nations. Montesquieu admired the English Constitution in particular, and argued convincingly that the preservation of liberty required a separation of powers.
American constitution-makers were much attracted to his separation of powers doctrine but had difficulty applying it. It was based, in part, on an erroneous interpretation of the English Constitution, and Montesquieu’s treatment of the subject lacked clarity and precision. The separation of powers system that he advocated only vaguely acknowledged the need for an accompanying check and balance system, and there was some doubt whether the system could be implemented in America, because Montesquieu believed that a republican form of government could work only in a small territory. The Anti-Federalists were therefore critical of the proposed Constitution of 1787 because it departed from Montesquieu’s ideas. Ingenious at adapting Old World ideas to the American situation and revising them to suit their needs, the Framers argued on practical and theoretical grounds that Montesquieu’s principles, though basically sound, required some modification. The State constitutions written between 1776 and 1780, particularly the Massachusetts Constitution, showed that a system of checks and balances actually strengthened the separation of powers. Montesquieu’s assumption that only small territories were suited for republican government was brilliantly challenged by James Madison in Federalist No. 10. Montesquieu’s ideas, while serving as an inspiration and catalyst for constitutional change before the Revolution, thus lost some of their purity when the Framers got down to the business of putting them into practice.
The Education of the Founders
American political leaders, it may be seen, drew upon a wide range of philosophers, historians, lawyers, and political thinkers in formulating their constitutional principles. This body of knowledge, combined with their solid grasp of British institutions, their experiences under colonial government and the new State constitutions, to say nothing of American writings on the subject of government, provided a wealth of information for drafting a new constitution. Indeed, the men of the founding generation seemed to love books as much as they loved liberty. We get a glimpse of these American values from the last will and testament of Josiah Quincy, a brilliant Boston lawyer who fought at the side of John Adams against British tyranny: “I leave to my son, when he shall have reached the age of fifteen, the works of Algernon Sidney, John Locke, Francis Bacon, Gordon’s Tacitus and Cato’s Letters. May the spirit of liberty rest upon him.”
A letter written by Thomas Jefferson in 1771, when he was twenty-eight years old, gives us yet a better insight into the kinds of books the educated class of Americans read and valued. Robert Skipwith, a friend of Jefferson’s, asked Jefferson to draw up a list of the books that a Virginia gentleman should have in his personal library. Jefferson obliged his friend with a lengthy list divided into numerous sections, including “Fine Arts” (including poetry, drama, art, and gardening), “Politics and Trade,” “Religion” (which included what we would call philosophy today), “Law,” “History,” and “Natural Philosophy and Natural History” (what we now call the sciences). Works on poetry and fiction, such as those of John Dryden, Alexander Pope, and Jonathan Swift, were included, he said, because “every thing is useful which contributes to fix us in the principles and practice of virtue.” Most of the basic works on Greek and Roman history—Tacitus, Livy, Sallust, and Plutarch—gave detailed accounts of the corruption in Roman politics. Works on English politics and political history focused on the constitutional conflicts of the seventeenth century, but included later works too—Locke, Sidney, Montesquieu, and Bolingbroke. Under religion Jefferson included the writings of Cicero, Seneca, Xenophon, Epictetus, and Hume. Blackstone’s Commentaries, Lord Kames’s Principles of Equity, and a law dictionary were the only entries under the heading “Law.” The Bible also appeared on the list, as did Samuel Johnson’s Dictionary and some of the writings of Edmund Burke and the Scottish economists Adam Smith and Sir James Steuart. Almost all of these works, in one degree or another, were read widely by the educated class of Americans who directed the affairs of the American Republic in the formative years. They provided American political leaders with a deep sense of history, an understanding of liberty and constitutional government, and a system of values, both personal and political, that are reflected in their political behavior and in the constitutions they drafted for their countrymen. No generation of political leaders has been better prepared or better educated for writing a constitution and assuming the reins of government than the Framers of the American Constitution.
The French and American Revolutions Compared
Representative government, a tradition of well-established civil and political liberties, and the heritage of the common law are only three of the more important examples of English political and legal institutions that passed into the civil social order of the United States. The Congress, the Bill of Rights, and the American system of law and justice today are all the products of British experience and political thought going back more than seven centuries.
Although the Framers of the American Constitution declared that they were creating a new political order for a new age, they never thought of repudiating their American past, their British past, or their classical past. On the floor of the Federal Convention, and in the State ratifying conventions, the leading men repeatedly appealed to examples from ancient times and from English history, and a few even relied upon philosophers of earlier centuries to support their views. They were seeking to preserve their ancestral America.
The wisdom of the Framers and their attachment to the political and moral heritage of Hebraic, classical, and British cultures, combined with the American experience, prevented them from falling into the ruinous political errors that, only two years after the Constitution was written, French reformers would begin to commit. Initially, the French Revolution that began in 1789 with the storming of the Bastille (a prison in Paris that had come to symbolize the oppression of the “ancient regime”) was hailed by many in Europe and America as the dawn of a new era and the triumph of liberty over tyranny and injustice. Not a few, including many Frenchmen, likened it to the American Revolution, which was said to have set the example and provided the inspiration. But as time passed and political developments in France indicated that limited constitutional government was not the aim of the Jacobin revolutionaries, public opinion began to turn against the French. As early as 1790, Edmund Burke warned in his famous Reflections on the Revolution in France that the revolution was doomed to failure because its leaders sought a radical break with the past and were attempting to create a whole new society based on visionary theories of government. The French, he asserted, were attempting not to restore their ancient liberties, but to set up a new order for all mankind based on what the French called the Rights of Man. Unfamiliar with constitutional government, lacking experience in parliamentary institutions and practices, having no solid grasp of the meaning and substance of the rights the English and Americans had come to know, the French naively believed they could leap over centuries of historical development and instantaneously create an enlightened political system never before experienced by any civilization. The whole scheme of things, thought Burke, was hopelessly idealistic and dangerous.
Not the least of his concerns was the Declaration of the Rights of Man, which lacked any constitutional base of support and therefore amounted to little more than words on paper. As interpreted by revolutionary leaders, the rights themselves—“liberté, egalité et fraternité”—called for a complete leveling of society, the abolition of all social classes and distinctions, including the elimination of the clergy, and a redistribution of the wealth. In pursuit of these goals, the Jacobins plunged the nation into what came to be called the Reign of Terror. Death stalked the countryside. Mass executions, murder, cruelty, and human atrocities of every description became the order of the day. France, once the pride of Europe and the hallmark of Western civilization, plummeted into a state of barbarism—on a scale never before thought possible. Thus was born the first modern revolution, the dress rehearsal, it is sometimes said, for the Russian Revolution of 1917.
During the Reign of Terror, Gouverneur Morris of Pennsylvania, who had been a leading member of the Constitutional Convention of 1787, was the American Minister to France. Shocked by what he saw, he began sending home reports to American political leaders. Writing in 1792 to Robert Morris, another Pennsylvania delegate to the Convention, he related on one occasion that the owner of a French quarry had demanded damages because so many corpses had been dumped into his quarry that they “choked it up so he could not get men to work in it.” These victims, he continued, were “the best people,” killed “without form of trial, and their bodies thrown like dead dogs into the first hole that offered.” Other accounts of the Revolution by Gouverneur Morris were equally alarming: “(September 2, 1792) the murder of the priests … murder of prisoners. … (September 3) The murdering continues all day. … (September 4) And still the murders continue.”
Eyewitness accounts such as these, and tales of unspeakable horror and brutality told by other foreign visitors to France, confirmed the darkest suspicions of Edmund Burke, and as news about the fate of the French Revolution spread across Europe and North America, so also did Burke’s fame and influence. That Burke, who had defended the claims of the American colonists and steadfastly opposed all policies calculated to reduce private liberties or centralize the authority of the crown, should turn against the French Revolution puzzled many of his contemporaries when his Reflections first appeared. Had he not sided with American revolutionaries and argued that Americans were entitled to the rights of Englishmen? How, then, could he oppose the French claim for liberty? There seemed to be an inconsistency. Those who thought so misunderstood Burke, however, and, unlike Burke, also misunderstood the French and American revolutions.
Much of this confusion over the similarities and differences between the two revolutions was laid to rest by Friedrich Gentz, a German diplomat who served as an advisor to Clemens von Metternich, the great chancellor of the Hapsburg Empire. It was Metternich who presided over the Congress of Vienna, the famous international peace conference of 1815 that succeeded in restoring lasting peace in Europe after the Napoleonic wars. Gentz was one of Burke’s most ardent admirers on the continent, and in 1794 translated Burke’s Reflections into German. In 1800, Gentz published an important essay of his own, The French and American Revolutions. That same year, John Quincy Adams translated this work into English and arranged for its publication in Philadelphia.
Picking up where Burke had finished, Gentz defended the American Revolution as a constitutional struggle for political independence, the restoration of the rights of Englishmen, and the establishment of self-government. The American Revolution, he observed, was not an internal conflict, pitting Americans against Americans, but a military effort to throw off the yoke of foreign oppression. “The American revolution,” he concluded, “had more the appearance of a foreign than a civil war,” or what we would today call a rebellion. Moreover, the war was limited primarily to military engagements between British and American militia. There was no war against the general population, although many Americans lost their lives and property; and neither British nor American forces engaged in wholesale acts of savage brutality, mayhem, and murder. “If in America,” said Gentz, “single families and districts felt the heavy hand of the revolution and of war, never at least, as in France, were confiscations, banishments, imprisonments, and death decreed in a mass.” Having driven the British from American soil, “the country proceeded with rapid steps to a new, a happy, and a flourishing constitution” that enjoyed popular support throughout the country. In retrospect, it could be seen that “the revolution altered little in the internal organization of the colonies, as it only dissolved the external connection, which the Americans must always have considered rather as a burden.”
In contrast, the French Revolution was a true civil war. Its goal was not to expel a foreign enemy, but to overthrow the government of France and establish a new political order for all of Europe. As the Revolution progressed, its Jacobin rulers thought it necessary to erase all vestiges of the past and abolish the ancient institutions of France without any clear understanding of what would replace them. They even abolished the calendar and renamed the days of the week. Professing equality and fraternity, they addressed each other as “citizen.” In a mad frenzy, they set out to destroy the entire social fabric of France, including all traces of the Christian religion. Following the execution of King Louis XVI and Marie Antoinette in 1793, they turned on the aristocracy and the clergy. Those who escaped capture fled the country. The rest were marched to the guillotine, a new and efficient decapitating device first conceived by a French doctor to reduce extended suffering and speed up mass executions. Eventually all classes, including the peasants, fell victim to the Revolution. During the Reign of Terror in 1793, when Maximillian Robespierre was in charge of the Committee of Public Safety, it is estimated that 4,554 persons were put to death by revolutionary courts. In 1794, Robespierre himself felt the executioner’s blade. In this bloody revolution, it has been said, France was at war not only with itself but with Western civilization. “With regard to the lawfulness of the origin, character of the conduct, quality of the object, and compass of resistance,” Gentz concluded, “every parallel” drawn between the French and American revolutions “will serve much more to display the contrast than the resemblance between them.”
What is the significance of these distinctions in understanding the origin and nature of the American Constitution? Above all, they help us put in proper perspective the political values and aspirations of American revolutionary leaders. This is important to know, because the men who led the “revolution” also wrote the Constitution, with George Washington at the helm not only as the Commander-in-Chief of the Continental Army but also as President of the Constitutional Convention. The American Constitution was, in effect, the culmination of the American Revolution, and it is through the Constitution that the goals of the revolution were finally achieved.
The American Revolution, viewed in historical perspective, was a constitutional revolt in the English tradition. From virtually every standpoint, the American republic founded in 1787 was really more like the constitutional monarchy of Great Britain than any of the early republics of France. And the French have attempted five since 1789, as well as virtually every other form of government—the Fifth Republic, founded by Charles De Gaulle in 1958 being the first to establish stable government and show real promise, and that because it incorporates some key features of the American Constitution, including judicial review. But in the eighteenth century the French and the Americans had very different ideas about the role and limits of government, about democracy and republicanism, and especially about constitutionalism.
Probably the widest gulf between them, however, concerned the question of individual rights. The Americans fought for and secured the common law rights of Englishmen, whereas the French, much influenced by Jean Jacques Rousseau and other radical French philosophers of the Enlightenment, dreamed of the Rights of Man. Deemed to be the natural rights of all mankind but having no practical base in human experience, let alone that of France, they were reduced by the French revolutionaries to the political slogan of “liberté, egalité et fraternité.” Assuming that all individuals are “by nature” good but have been “corrupted” by man’s institutions, the French believed that by eradicating the monarchy, the aristocracy, and the church, and by erasing the past, this natural goodness would surface and everyone would enjoy a perfect state of strifeless equality. There would then be no need for limited government, or as some believed, for any government at all, because there would be no need to be protected against naturally virtuous citizens. Nor would there be rich and poor, or social classes based on economic distinctions, because all property would be held in common once man reverted to a natural state of equality—“natural,” they said, because the state of nature, antedating the first government in prehistorical times, was thought to be the original and true condition of mankind.
The system thus envisioned by French revolutionary leaders approximated a form of philosophical anarchy and glorified a communal system of collective living in a “classless society,” a theory that later achieved a more sophisticated expression in the writings of Karl Marx and the Russian revolutionaries of the twentieth century. This utopian scheme never came to fruition, of course, because it was wholly at odds with the true nature of man. The French Revolution, lacking any sensible direction, rapidly degenerated into chaos. A national madness gripped the country, which eventually gave rise to totalitarianism and military dictatorship. With the French Revolution of 1789 we enter upon modern European history. To understand that revolution is to understand the history of the modern world. To understand the American Revolution is to understand why the American Constitution has survived and so many others, much influenced by the ideas and events of Jacobin France, have failed.
The American revolutionaries suffered none of the delusions of their unfortunate counterparts in France. There were a few Americans and British, notably Thomas Paine and the English Unitarian minister Dr. Richard Price, who championed the French Revolution, but they were part of a small and shrinking minority. Seeking to refute Burke, Paine published The Rights of Man in 1791, insisting that Burke’s view of rights was contrary to reason and that his misgivings were unfounded. “Notwithstanding Mr. Burke’s horrid paintings,” said Paine, “when the French Revolution is compared with that of other countries, the astonishment will be that it is marked by so few sacrifices.” Traveling to Paris to join the Revolution, Paine was at first honored by the revolutionists as “Citizen Tom Paine,” only to be thrown into prison, barely escaping France with his life.
The French Revolution left the nation bitter and divided for more than a century. The American people, however, emerged from their struggle united and free. Thus from the beginning American Constitution-makers had the general support of their countrymen. The principles of government they espoused during the Revolution and implemented after the British surrender at Yorktown were widely shared in every town and village. It was on the basis of this remarkable consensus, this serene moment of creation, this fertile ground of American political experience, that the new Constitution was established. Had the Americans fought their revolution a decade later and followed the French rather than the English example, it may be doubted whether the American Constitution, or any other, would have long endured. But history smiled upon the American people. Time and circumstance and the political wisdom of the Founders combined fortuitously to rescue them from the fate of the French republic. No tree of liberty has ever enjoyed a greater chance of survival than the Constitution that germinated in Philadelphia in the summer of 1787. This is because it was deeply rooted in a constitutional tradition favorable to liberty, order, and justice more than five hundred years in the making.
Relevant Chapters of Magna Charta (1215)
THE GREAT CHARTER OF KING JOHN, GRANTED JUNE 15, 1215.
John, by the Grace of God, King of England, Lord of Ireland, Duke of Normandy, Aquitaine, and Count of Anjou, to his Archbishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, Sheriffs, Governors, Officers, and to all Bailiffs, and his faithful subjects, greeting. Know ye, that we, in the presence of God, and for the salvation of our soul, and the souls of all our ancestors and heirs, and unto the honour of God and the advancement of Holy Church, and amendment of our Realm, by advice of our venerable Fathers, Stephen, Archbishop of Canterbury, Primate of all England and Cardinal of the Holy Roman Church; Henry, Archbishop of Dublin; William, of London; Peter, of Winchester; Jocelin, of Bath and Glastonbury; Hugh, of Lincoln; Walter, of Worcester; William, of Coventry; Benedict, of Rochester—Bishops: of Master Pandulph, Sub-Deacon and Familiar of our Lord the Pope; Brother Aymeric, Master of the Knights-Templar in England; and the noble Persons, William Marescall, Earl of Pembroke; William, Earl of Salisbury; William, Earl of Warren; William, Earl of Arundel; Alan de Galloway, Constable of Scotland; Warin FitzGerald, Peter FitzHerbert, and Hubert de Burgh, Seneschal of Poitou; Hugh de Neville, Matthew FitzHerbert, Thomas Basset, Alan Basset, Philip of Albiney, Robert de Roppell, John Mareschal, John FitzHugh, and others, our liegemen, have, in the first place, granted to God, and by this our present Charter confirmed, for us and our heirs for ever:
RIGHTS OF THE CHURCH
That the Church of England shall be free, and have her whole rights, and her liberties inviolable; and we will have them so observed that it may appear thence that the freedom of elections, which is reckoned chief and indispensable to the English Church, and which we granted and confirmed by our Charter, and obtained the confirmation of the same from our Lord and Pope Innocent III, before the discord between us and our barons, was granted of mere free will; which Charter we shall observe, and we do will it to be faithfully observed by our heirs for ever.
GRANT OF LIBERTY TO FREEMEN
We also have granted to all the freemen of our kingdom, for us and for our heirs for ever, all the underwritten liberties, to be had and holden by them and their heirs, of us and our heirs for ever: If any of our earls, or barons, or others, who hold of us in chief by military service, shall die, and at the time of his death his heir shall be of full age, and owe a relief, he shall have his inheritance by the ancient relief—that is to say, the heir or heirs of an earl, for a whole earldom, by a hundred pounds; the heir or heirs of a baron, for a whole barony, by a hundred pounds; their heir or heirs of a knight, for a whole knight’s fee, by a hundred shillings at most; and whoever oweth less shall give less according to the ancient custom of fees.
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NO TAX (SCUTAGE) EXCEPT BY THE GENERAL COUNCIL
No scutage or aid shall be imposed in our kingdom, unless by the general council of our kingdom; except for ransoming our person, making our eldest son a knight, and once for marrying our eldest daughter; and for these there shall be paid no more than a reasonable aid. In like manner it shall be concerning the aids of the City of London.
LIBERTIES OF LONDON AND OTHER TOWNS
And the City of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we will and grant that all other cities and boroughs, and towns and ports, shall have all their liberties and free customs.
GENERAL COUNCIL SHALL CONSENT TO ASSESSMENT OF TAXES
And for holding the general council of the kingdom concerning the assessment of aids, except in the three cases aforesaid, and for the assessing of scutages, we shall cause to be summoned the archbishops, bishops, abbots, earls, and greater barons of the realm, singly by our letters, and furthermore, we shall cause to be summoned generally, by our sheriffs and baliffs, all others who hold of us in chief, for a certain day, that is to say, forty days before their meeting at least, and to a certain place; and in all letters of such summons we will declare the cause of such summons, and, summons being thus made the business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned come not.
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COURTS SHALL ADMINISTER JUSTICE IN A FIXED PLACE
Common pleas shall not follow our court, but shall be holden in some place certain.
LAND DISPUTES SHALL BE TRIED IN THEIR PROPER COUNTIES
Trials upon the Writs of Novel Disseisin, and of Mort d’ancestor, and of Darrein Presentment, shall not be taken but in their proper counties, and after this manner: We, or if we should be out of the realm, our chief justiciary, will send two justiciaries through every county four times a year, who, with four knights of each county, chosen by the county, shall hold the said assizes in the county, on the day, and at the place appointed.
KEEPING THE ASSIZE COURTS OPEN
And if any matters cannot be determined on the day appointed for holding the assizes in each county, so many of the knights and freeholders as have been at the assizes aforesaid shall stay to decide them as is necessary, according as there is more or less business.
FINES AGAINST FREEMEN TO BE MEASURED BY THE OFFENSE
A freeman shall not be amerced for a small offence, but only according to the degree of the offence; and for a great crime according to the heinousness of it, saving to him his contentment; and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his wainage, if he falls under our mercy; and none of the aforesaid amerciaments shall be assessed but by the oath of honest men in the neighbourhood.
SAME FOR NOBLES
Earls and barons shall not be amerced but by their peers, and after the degree of the offence.
SAME FOR CLERGYMEN
No ecclesiastical person shall be amerced for his tenement, but according to the proportion of the others aforesaid, and not according to the value of his ecclesiastical benefice.
23. Neither a town nor any tenant shall be distrained to make bridges or embankments, unless that anciently and of right they are bound to do it.
24. No sheriff, constable, coroner, or other our bailiffs, shall hold “Pleas of the Crown.”
25. All counties, hundreds, wapentakes, and trethings, shall stand at the old rents, without any increase, except in our demesne manors.
26. If any one holding of us a lay fee die, and the sheriff, or our bailiffs, show our letters patent of summons for debt which the dead man did owe to us, it shall be lawful for the sheriff or our bailiff to attach and register the chattels of the dead, found upon his lay fee, to the amount of the debt, by the view of lawful men, so as nothing be removed until our whole clear debt be paid; and the rest shall be left to the executors to fulfil the testament of the dead; and if there be nothing due from him to us, all the chattels shall go to the use of the dead, saving to his wife and children their reasonable shares.
27. If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest relations and friends, by view of the Church, saving to every one his debts which the deceased owed to him.
COMPENSATION FOR THE TAKING OF PRIVATE PROPERTY
No constable or bailiff of ours shall take corn or other chattels of any man unless he presently give him money for it, or hath respite of payment by the good-will of the seller.
29. No constable shall distrain any knight to give money for castle-guard, if he himself will do it in his person, or by another able man, in case he cannot do it through any reasonable cause. And if we have carried or sent him into the army, he shall be free from such guard for the time he shall be in the army by our command.
NO TAKING OF HORSES OR CARTS WITHOUT CONSENT
No sheriff or bailiff of ours, or any other, shall take horses or carts of any freeman for carriage, without the assent of the said freeman.
NO TAKING OF TREES FOR TIMBER WITHOUT CONSENT
Neither shall we nor our bailiffs take any man’s timber for our castles or other uses, unless by the consent of the owner of the timber.
32. We will retain the lands of those convicted of felony only one year and a day, and then they shall be delivered to the lord of the fee.
33. All kydells (wears) for the time to come shall be put down in the rivers of Thames and Medway, and throughout all England, except upon the sea-coast.
34. The writ which is called prœcipe, for the future, shall not be made out to any one, of any tenement, whereby a freeman may lose his court.
UNIFORM WEIGHTS AND MEASURES
There shall be one measure of wine and one of ale through our whole realm; and one measure of corn, that is to say, the London quarter; and one breadth of dyed cloth, and russets, and haberjects, that is to say, two ells within the lists; and it shall be of weights as it is of measures.
NOTHING FROM HENCEFORTH SHALL BE GIVEN OR TAKEN FOR A WRIT OF INQUISITION OF LIFE OR LIMB, BUT IT SHALL BE GRANTED FREELY, AND NOT DENIED.
37. If any do hold of us by fee-farm, or by socage, or by burgage, and he hold also lands of any other by knight’s service, we will have the custody of the heir or land, which is holden of another man’s fee by reason of that fee-farm, socage, or burgage; neither will we have the custody of the fee-farm, or socage, or burgage, unless knight’s service was due to us out of the same fee-farm. We will not have the custody of an heir, nor of any land which he holds of another by knight’s service, by reason of any petty serjeanty by which he holds of us, by the service of paying a knife, an arrow, or the like.
38. No bailiff from henceforth shall put any man to his law upon his own bare saying, without credible witnesses to prove it.
GUARANTEE OF JUDGMENT BY ONE’S PEERS AND OF PROCEEDINGS ACCORDING TO THE “LAW OF THE LAND.”
No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land.
GUARANTEE OF EQUAL JUSTICE (EQUALITY BEFORE THE LAW)
We will sell to no man, we will not deny or delay to any man, either justice or right.
FREEDOM OF MOVEMENT FOR MERCHANTS
All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there and to pass as well by land as by water, for buying and selling by the ancient and allowed customs, without any unjust tolls; except in time of war, or when they are of any nation at war with us. And if there be found any such in our land, in the beginning of the war, they shall be attached, without damage to their bodies or goods, until it be known unto us, or our chief justiciary, how our merchants be treated in the nation at war with us; and if ours be safe there, the others shall be safe in our dominions.
FREEDOM TO LEAVE AND REENTER THE KINGDOM
It shall be lawful, for the time to come, for any one to go out of our kingdom, and return safely and securely by land or by water, saving his allegiance to us; unless in time of war, by some short space, for the common benefit of the realm, except prisoners and outlaws, according to the law of the land, and people in war with us, and merchants who shall be treated as is above mentioned.
43. If any man hold of any escheat as of the honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which be in our hands, and are baronies, and die, his heir shall give no other relief, and perform no other service to us than he would to the baron, if it were in the baron’s hand; and we will hold it after the same manner as the baron held it.
44. Those men who dwell without the forest from henceforth shall not come before our justiciaries of the forest, upon common summons, but such as are impleaded, or as sureties for any that are attached for something concerning the forest.
APPOINTMENT OF THOSE WHO KNOW THE LAW
We will not make any justices, constables, sheriffs, or bailiffs, but of such as know the law of the realm and mean duly to observe it.
46. All barons who have founded abbeys, which they hold by charter from the kings of England, or by ancient tenure, shall have the keeping of them, when vacant, as they ought to have.
47. All forests that have been made forests in our time shall forthwith be disforested; and the same shall be done with the water-banks that have been fenced in by us in our time.
48. All evil customs concerning forests, warrens, foresters, and warreners, sheriffs and their officers, water-banks and their keeper, shall forthwith be inquired into in each county, by twelve sworn knights of the same county chosen by creditable persons of the same county; and within forty days after the said inquest be utterly abolished, so as never to be restored: so as we are first acquainted therewith, or our justiciary, if we should not be in England.
49. We will immediately give up all hostages and charters delivered unto us by our English subjects, as securities for their keeping the peace, and yielding us faithful service.
50. We will entirely remove from their bailiwicks the relations of Gerard de Atheyes, so that for the future they shall have no bailiwick in England; we will also remove from their bailiwicks the relations of Gerard de Atheyes, so that for the future they shall have no bailiwick in England; we will also remove Engelard de Cygony, Andrew, Peter, and Gyon, from the Chancery; Gyon de Cygony, Geoffrey de Martyn, and his brothers; Philip Mark, and his brothers, and his nephew, Geoffrey, and their whole retinue.
51. As soon as peace is restored, we will send out of the kingdom all foreign knights, cross-bowmen, and stipendiaries, who are come with horses and arms to the molestation of our people.
52. If any one has been dispossessed or deprived by us, without the lawful judgment of his peers, of his lands, castles, liberties, or rights, we will forthwith restore them to him; and if any dispute arise upon this head, let the matter be decided by the five-and-twenty barons hereafter mentioned, for the preservation of the peace. And for all those things of which any person has, without the lawful judgment of his peers, been dispossessed or deprived, either by our father King Henry, or our brother King Richard, and which we have in our hands, or are possessed by others, and we are bound to warrant and make good, we shall have a respite till the term usually allowed the crusaders; excepting those things about which there is a plea depending, or whereof an inquest hath been made, by our order before we undertook the crusade; but as soon as we return from our expedition, or if perchance we tarry at home and do not make our expedition, we will immediately cause full justice to be administered therein.
53. The same respite we shall have, and in the same manner, about administering justice, disafforesting or letting continue the forests, which Henry our father, and our brother Richard, have afforested; and the same concerning the wardship of the lands which are in another’s fee, but the wardship of which we have hitherto had, by reason of a fee held of us by knight’s service; and for the abbeys founded in other fee than our own, in which the lord of the fee says he has a right; and when we return from our expedition, or if we tarry at home, and do not make our expedition, we will immediately do full justice to all the complainants in this behalf.
54. No man shall be taken or imprisoned upon the appeal of a woman, for the death of any other than her husband.
55. All unjust and illegal fines made by us, and all amerciaments imposed unjustly and contrary to the law of the land, shall be entirely given up, or else be left to the decision of the five-and-twenty barons hereafter mentioned for the preservation of the peace, or of the major part of them, together with the foresaid Stephen, Archbishop of Canterbury, if he can be present, and others whom he shall think fit to invite; and if he cannot be present, the business shall notwithstanding go on without him; but so that if one or more of the aforesaid five-and-twenty barons be plaintiffs in the same cause, they shall be set aside as to what concerns this particular affair, and others be chosen in their room, out of the said five-and-twenty, and sworn by the rest to decide the matter.
56. If we have disseised or dispossessed the Welsh of any lands, liberties, or other things, without the legal judgment of their peers, either in England or in Wales, they shall be immediately restored to them; and if any dispute arise upon this head, the matter shall be determined in the Marches by the judgment of their peers; for tenements in England according to the law of England, for tenements in Wales according to the law of Wales, for tenements of the Marches according to the law of the Marches: the same shall the Welsh do to us and our subjects.
57. As for all those things of which a Welshman hath, without the lawful judgment of his peers, been disseised or deprived of by King Henry our father, or our brother King Richard, and which we either have in our hands or others are possessed of, and we are obliged to warrant it, we shall have a respite till the time generally allowed the crusaders; excepting those things about which a suit is depending, or whereof an inquest has been made by our order, before we undertook the crusade: but when we return, or if we stay at home without performing our expedition, we will immediately do them full justice, according to the laws of the Welsh and of the parts before mentioned.
58. We will without delay dismiss the son of Llewellin, and all the Welsh hostages, and release them from the engagements they have entered into with us for the preservation of the peace.
59. We will treat with Alexander, King of Scots, concerning the restoring of his sisters and hostages, and his right and liberties, in the same form and manner as we shall do to the rest of our barons of England; unless by the charters which we have from his father, William, late King of Scots, it ought to be otherwise; and this shall be left to the determination of his peers in our court.
LIBERTIES TO BE GRANTED TO ALL SUBJECTS
All the foresaid customs and liberties, which we have granted to be holden in our kingdom, as much as it belongs to us, all people of our kingdom, as well clergy as laity, shall observe, as far as they are concerned, towards their dependents.
OATH TO OBSERVE RIGHTS OF THE CHURCH AND THE PEOPLE
And whereas, for the honour of God and the amendment of our kingdom, and for the better quieting the discord that has arisen between us and our barons, we have granted all these things aforesaid; willing to render them firm and lasting, we do give and grant our subjects the underwritten security, namely, that the barons may choose five-and-twenty barons of the kingdom, whom they think convenient; who shall take care, with all their might, to hold and observe, and cause to be observed, the peace and liberties we have granted them, and by this our present Charter confirmed in this manner; that is to say, that if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstance have failed in the performance of them towards any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and, laying open the grievance, shall petition to have it redressed without delay: and if it be not redressed by us, or if we should chance to be out of the realm, if it should not be redressed by our justiciary within forty days, reckoning from the time it been notified to us, or to our justiciary (if we should be out of the realm), the four barons aforesaid shall lay the cause before the rest of the five-and-twenty barons; and the said five-and-twenty barons, together with the community of the whole kingdom, shall distrain and distress us in all the ways in which they shall be able, by seizing our castles, lands, possessions, and in any other manner they can, till the grievance is redressed, according to their pleasure; saving harmless our own person, and the persons of our Queen and children; and when it is redressed, they shall behave to us as before. And any person whatsoever in the kingdom may swear that he will obey the orders of the five-and-twenty barons aforesaid in the execution of the premises, and will distress us, jointly with them, to the utmost of his power; and we give public and free liberty to any one that shall please to swear to this, and never will hinder any person from taking the same oath.
62. As for all those of our subjects who will not, of their own accord, swear to join the five-and-twenty barons in distraining and distressing us, we will issue orders to make them take the same oath as aforesaid. And if any one of the five-and-twenty barons dies, or goes out of the kingdom, or is hindered any other way from carrying the things aforesaid into execution, the rest of the said five-and-twenty barons may choose another in his room, at their discretion, who shall be sworn in like manner as the rest. In all things that are committed to the execution of these five-and-twenty barons, if, when they are all assembled about any matter, and some of them, when summoned, will not or cannot come, whatever is agreed upon, or enjoined, by the major part of those that are present shall be reputed as firm and valid as if all the five-and-twenty had given their consent; and the aforesaid five-and-twenty shall swear that all the premises they shall faithfully observe, and cause with all their power to be observed. And we will procure nothing from any one, by ourselves nor by another, whereby any of these concessions and liberties may be revoked or lessened; and if any such thing shall have been obtained, let it be null and void; neither will we ever make use of it either by ourselves or any other. And all the ill-will, indignations, and rancours that have arisen between us and our subjects, of the clergy and laity, from the first breaking out of the dissensions between us, we do fully remit and forgive: moreover, all trespasses occasioned by the said dissensions, from Easter in the sixteenth year of our reign till the restoration of peace and tranquility, we hereby entirely remit to all, both clergy and laity, and as far as in us lies do fully forgive. We have, moreover, caused to be made for them the letters patent testimonial of Stephen, Lord Archbishop of Canterbury, Henry, Lord Archbishop of Dublin, and the bishops aforesaid, as also of Master Pandulph, for the security and concessions aforesaid.
63. Wherefore we will and firmly enjoin, that the Church of England be free, and that all men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, truly and peaceably, freely and quietly, fully and wholly to themselves and their heirs, of us and our heirs, in all things and places, for ever, as is aforesaid. It is also sworn, as well on our part as on the part of the barons, that all the things aforesaid shall be observed in good faith, and without evil subtilty. Given under our hand, in the presence of the witnesses above named, and many others, in the meadow called Runingmede, between Windsor and Staines, the 15th day of June, in the 17th year of the reign.
Petition of Right (1628)
The Petition exhibited to his Majesty by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, concerning divers Rights and Liberties of the Subjects, with the King’s Majesty’s royal answer thereunto in full Parliament.
to the king’s most excellent majesty,
Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons in Parliament assembled, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward I., commonly called Statutum de Tallagio non concedendo, that no tallage or aid shall be laid or levied by the king or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm; and by authority of Parliament holden in the five-and-twentieth year of the reign of King Edward III., it is declared and enacted, that from thenceforth no person shall be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land; and by other laws of this realm it is provided, that none should be charged by any charge or imposition, called a benevolence, nor by such like charge; by which the statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in Parliament:
II. Yet nevertheless of late divers commissions directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their refusal so to do, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound and make appearance and give utterance before your Privy Council, and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace and others, by command or direction from your Majesty or your Privy Council, against the laws and free customs of the realm.
III. And whereas also by the statute called “The Great Charter of the liberties of England,” it is declared and enacted that no freeman may be taken or imprisoned or be disseised of his freeholds 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.
IV. And in the eight-and-twentieth year of the reign of King Edward III., it was declared and enacted by authority of Parliament, that no man, of what estate or condition that he be, should be put out of his lands or tenements, nor taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law.
V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices, by your Majesty’s writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty’s special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.
VI. And whereas 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 houses, 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.
VII. And whereas also by authority of Parliament, in the five-and-twentieth year of the reign of King Edward III., it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter, and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm or by acts of Parliament: and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late time divers commissions under your Majesty’s great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.
VIII. By pretext whereof some of your Majesty’s subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been, judged and executed.
IX. And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissioners, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.
X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament; and that none be called to make, answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the foresaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchise of the land.
XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom.
[Which Petition being read the 2nd of June, 1628, the King’s answer was thus delivered unto it.
The King willeth that right be done according to the laws and customs of the realm; and that the statutes be put in due execution, that his subjects may have no cause to complain of any wrong or oppressions, contrary to their just rights and liberties, to the preservation whereof he holds himself as well obliged as of his prerogative.
This form was unusual and was therefore thought to be an evasion; therefore on June 7 the King gave a second answer in the formula usual for approving bills: Soit droit fait comme il est désiré.]
The English Bill of Rights (1689)
Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did upon the Thirteenth day of February, in the year of our Lord One Thousand Six Hundred Eighty-eight, present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain Declaration in writing, made by the said Lords and Commons, in the words following, viz.:—
“Whereas the late King James II., by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom:—
(1.) By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament.
(2.) By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power.
(3.) By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes.
(4.) 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.
(5.) By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law.
(6.) By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.
(7.) By violating the freedom of election of members to serve in Parliament.
(8.) By prosecutions in the Court of King’s Bench for matters and causes cognizable only in Parliament; and by divers other arbitrary and illegal causes.
(9.) And whereas of late years, partial, corrupt, and unqualified persons have been returned, and served on juries in trials, and particularly diverse jurors in trials for high treason, which were not freeholders.
(10.) And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.
(11.) And excessive fines have been imposed; and illegal and cruel punishments inflicted.
(12.) And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied.
All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.
And whereas the said late King James II, having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from Popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons to represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws, and liberties might not again be in danger of being subverted; upon which letters elections have been accordingly made.
And thereupon the said Lords Spiritual and Temporal, and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done), for the vindicating and asserting their ancient rights and liberties, declare:—
(1.) That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal.
(2.) That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath assumed and exercised of late, is illegal.
(3.) That the commission for erecting the late Court of Commissioners for Ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.
(4.) That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal.
(5.) That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.
(6.) That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.
(7.) That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.
(8.) That election of members of Parliament ought to be free.
(9.) That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.
(10.) That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.
(11.) That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.
(12.) That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.
(13.) And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, Parliament ought to be held frequently.
And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example.
To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.
Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties,
II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve, that William and Mary, Prince and Princess of Orange, be, and be declared, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark, and the heirs of her body; and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly.
III. And that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.
“I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to their Majesties King William and Queen Mary:
“So help me God.”
“I, A. B., do swear, That I do from my heart abhor, detest, and abjure as impious and heretical that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare, that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, preeminence, or authority, ecclesiastical or spiritual, within this realm:
“So help me God!”
IV. Upon which their said Majesties did accept the Crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration.
V. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties’ royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly.
VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in Parliament assembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of Parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every of the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.
VII. And the said Lords Spiritual and Temporal, and Commons, seriously considering how it hath pleased Almighty God, in his marvellous providence, and merciful goodness to this nation, to provide and preserve their said Majesties’ royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto Him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly, and in the sincerity of their hearts, think, and do hereby recognize, acknowledge, and declare, that King James II, having abdicated the Government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, in and to whose princely persons the royal state, crown, and dignity of the same realms, with all honours, styles, titles, regalties, prerogatives, powers, jurisdictions, and authorities to the same belonging and appertaining, are most fully, rightfully, and entirely invested and incorporated, united, and annexed.
VIII. And for preventing all questions and divisions in this realm, by reason of any pretended titles to the Crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquility, and safety of this nation doth, under God, wholly consist and depend, the said Lords Spiritual and Temporal, and Commons, do beseech their Majesties that it may be enacted, established, and declared, that the Crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties, and the survivor of them, during their lives, and the life of the survivor of them. And that the entire, perfect, and full exercise of the regal power and government be only in, and executed by, his Majesty, in the names of both their Majesties, during their joint lives; and after their deceases the said Crown and premises shall be and remain to the heirs of the body of her Majesty: and for default of such issue, to her Royal Highness the Princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of his said Majesty: And thereunto the said Lords Spiritual and Temporal, and Commons, do, in the name of all the people aforesaid, most humbly and faithfully submit themselves, their heirs and posterities, forever: and do faithfully promise, that they will stand to, maintain, and defend their said Majesties, and also the limitation and succession of the Crown herein specified and contained, to the utmost of their powers, with their lives and estates, against all persons whatsoever that shall attempt anything to the contrary.
IX. And whereas it hath been found by experience, that it is inconsistent with the safety and welfare of this Protestant kingdom, to be governed by a Popish prince, or by any king or queen marrying a Papist, the said Lords Spiritual and Temporal, and Commons, do further pray that it may be enacted, That all and every person and persons that is, are, or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded, and be for ever incapable to inherit, possess, or enjoy the Crown and Government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said Crown and Government shall from time to time descend to, and be enjoyed by, such person or persons, being Protestants, as should have inherited and enjoyed the same, in case the said person or persons so reconciled, holding communion, or professing, or marrying, as aforesaid, were naturally dead.
X. And that every King and Queen of this realm, who at any time hereafter shall come to and succeed in the Imperial Crown of this kingdom, shall, on the first day of the meeting of the first Parliament, next after his or her coming to the Crown, sitting in his or her throne in the House of Peers, in the presence of the Lords and Commons therein assembled, or at his or her coronation, before such person or persons who shall administer the coronation oath to him or her, at the time of his or her taking the said oath (which shall first happen), make, subscribe, and audibly repeat the declaration mentioned in the statute made in the thirteenth year of the reign of King Charles II., intituled “An act for the more effectual preserving the King’s person and Government, by disabling Papists from sitting in either House of Parliament.” But if it shall happen, that such King or Queen, upon his or her succession to the Crown of this realm, shall be under the age of twelve years, then every such King or Queen shall make, subscribe, and audibly repeat the said declaration at his or her coronation, or the first day of meeting of the first Parliament as aforesaid, which shall first happen after such King or Queen shall have attained the said age of twelve years.
XI. All which their Majesties are contented and pleased shall be declared, enacted, and established by authority of this present Parliament, and shall stand, remain, and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled, and by the authority of the same, declared, enacted, or established accordingly.
XII. And be it further declared and enacted by the authority aforesaid, that from and after this present session of Parliament, no dispensation by non obstante of or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament.
XIII. Provided that no charter, or grant, or pardon granted before the three-and-twentieth day of October, in the year of our Lord One thousand six hundred eighty-nine, shall be any ways impeached or invalidated by this Act, by that the same shall be and remain of the same force and effect in law, and no other, than as if this Act had never been made.
The institutions of America, which were a subject only of curiosity to monarchical France, ought to be a subject of study for republican France. Though it is no longer a question whether we shall have a monarchy or a republic in France, we are yet to learn … whether it shall be … pacific or warlike, liberal or oppressive, a republic that menaces the sacred rights of property and family, or one that honors and protects them both. … Let us look to America … less to find examples than instruction; let us borrow from her principles, rather than the details, of her laws. The laws of the French republic may be, and ought to be in many cases, different from those which govern the United States; but the principles on which the American constitutions rest, those principles of order, of the balance of powers, of true liberty, of deep and sincere respect for right, are indispensable to all republics.
Alexis de Tocqueville, Democracy in America (12th ed., 1848)