Features of English Constitutionalism
Medieval
Magna Carta (1215)
The best known document of English constitutional history was issued by King John under
compulsion by a powerful nobility eager to insure feudal rights and privileges. It also guaranteed
respect for certain customs of the towns and implied laws protecting the rights of subjects through
references that vaguely hint at a right to trial by jury, habeas corpus, and a right of resistance for
abridgement of the other provisions. Common law (see below) magnified the impact of these
provisions by treating them as precedents to be followed by later kings, judges, and legislators.
Taxes and the House of Commons, 1530-1550
The reign of Henry VIII (1509-1547) was marked by bold policies and big expenses. The House
of Commons had long been consulted when English monarchs needed money but more as a
courtesy than for specific approval. The massive scale of Henry VIII’s projects raised questions
about their acceptability, however, and the king came to depend on endorsement by parliamentary
statute as evidence of a higher form of authority than royal proclamation. Ultimate sovereignty,
especially in financial matters, thus came to rest with the “king in parliament.” Huge government
debt at the start of Elizabeth I’s reign required her to depend heavily upon support by the
Commons and become adept at responding to its concerns.
Common Law
A system of law based on custom and precedent established by court decisions. It was called
“common” to distinguish it from vague and varied local custom. Crown accredited judges worked
to codify wide-spread custom in the 15th century. Hardships resulting from more uniform
application of precedents were mitigated by royal judges who were empowered to preserve
fairness by issuing writs (mandamus, injunction, habeas corpus, certiorari, quo warrento) that
became the basis for equity law. Leading lawyers of the 16th century, including Coke (see
below), repeatedly confirmed the “fundamental” or constitutional authority of common law.
Early Modern
Sir Edward Coke, Dr. Bonham’s Case, & Judicial Review
After being awarded a medical degree from Cambridge, Dr. Bonham refused to recognize the
authority of the College of Physicians to control medical practice in London, an authority given to
it by both Crown and Parliament. When Dr. Bonham continued to practice without College
approval, he was thrown into jail in 1607. He sought relief from Chief Justice Edward Coke, who
ordered his release and restored his right to practice medicine. Coke’s opinion in Dr. Bonham’s
case is the earliest precedent for judicial review: “for when an act of parliament is against
common right and reason, or repugnant, or impossible to perform, the common law will controul
it, and adjudge such act to be void.”
Petition of Right of 1628
Sir Edward Coke was dismissed by King James I for insisting on the supremacy of law and
refusing to consult with royal advisors before deciding cases. Coke moved from his judicial
bench to a parliamentary one and quickly emerged as a leader in the struggle between king and
Parliament over royal power to collect taxes without prior approval by Parliament. Acutely short
of funds, the King sought savings elsewhere by quartering soldiers in private homes and
discouraging resistance by martial law, including arrests without showing cause. Parliament
responded by passage of the Petition of Right, which declared illegal all efforts to collect money
without Parliament’s approval, to quarter troops in homes, to arrest without cause, and to apply
martial law in peacetime. The American Bill of Rights follows the precedent set by Coke. The
king ignored Parliament, which then organized an army, took the king captive, and executed him
in 1649.
Glorious Revolution of 1688 and the Bill of Rights of 1689
A change of rulers (James II was forced to flee from England; William and Mary were brought in
from Holland) was accomplished by an act of Parliament, which then confirmed its supremacy by
a series of statutes that guaranteed annual meetings of Parliament, that judges would hold office
during good behavior instead of at the king’s pleasure, and that the rights of subjects to assembly
and worship would be respected. The writing and publication of Locke’s Second Treatise of
Government was closely tied to the Glorious Revolution and was taken as a philosophical
consecration of its achievements. The distinction between statutory and constitutional or
fundamental law virtually disappears in the late 17th and early 18th centuries and does not
reappear in England until Edmund Burke’s defense of complaints by American colonists at
unconstitutional treatment by Parliament.
On the Eve of American Independence: Edmund Burke
As a member of Parliament and a leading defender there of the American colonies, Edmund
Burke led a group of Whigs who sought to preserve constitutional principles of accountability and
representation in tax and trade policy that Locke and Coke had so vigorously defended. George
III and his parliamentary advisors were determined to break constitutional limitations put upon
the king and his government. Their colonial policy was but the first effort to provide unlimited
power to the crown, as Burke emphasized in his writings and speeches on American affairs of the
1760’s and 1770’s. Burke’s devotion to 17th century British constitutionalism and his association
of Americans with it guaranteed that he would be isolated and despised by his parliamentary
peers but also insured that he would have a huge impact in America. The argument made by
Adams, Madison, and many others that Americans were merely standing up for traditional rights
of English citizens was founded on Burke’s meticulous analysis of the damage done to English
constitutionalism by the grand schemes in behalf of absolute power popular among leaders of the
royal court and parliament in the closing decades of the 18th century. Included in Burke’s
analysis is a clear, strong defense of checks and balances and the separation of powers in a free,
limited government under law. American constitutionalism thus took up where British
constitutionalism left off, thanks to Burke’s appreciation for the principles essential to
constitutional government. Burke’s influence upon Madison’s famous 10th Federalist was
especially profound, though rarely acknowledged except by a few scholars.