Wednesday, February 5, 2020

British Documents’ Influence on Cornerstone Texts for Other Countries

By Michael Paul Hurd

Unlike most other countries with formal, written constitutions, the United Kingdom’s “constitution” is not one single document; rather, it is the system of rules that shapes the political governance of the United Kingdom of Great Britain and Northern Ireland. The system is the evolution of documents such as Magna Carta (1215), the Petition of Right (1628), the Habeas Corpus Act (1640; 1679), and the Bill of Rights (1689). Each of those documents were a counter to perceived illegal or unreasonable activities by the Crown. In separation, any of the aforementioned documents could have resulted in the dissolution of both the British Empire and the Monarchy; instead, the offending monarch generally modified their behavior to prevent a total collapse of British society. The result, with the interdependencies of the documents, is that the British system of government and its constitutional monarchy have been preserved.

Magna Carta - Public Domain Image

Magna Carta, written in Latin and signed by King John in 1215, was an effort to make peace between the Crown and rebel factions. It was unsuccessful and actually contributed to the outbreak of the First Barons’ War. Regardless, the precepts of the document countered the Crown presumption that the King was above the law. For the “people,” generally defined at the time to mean only those who owned land, Magna Carta attempted to provide religious rights, protection from illegal imprisonment, and limits on taxation.

King John's Tomb, Worcester Cathedral, Public Domain Image

In 1628, Parliament presented Charles I with the Petition of Right. In it, the Members complained that the Crown had violated the principles of Magna Carta through taxation without the consent of Parliament, imprisoning people without cause, and illegal quartering of troops among the populace, and the establishment of martial law during peacetime. Charles rejected the original proposal from the House of Commons, threatened to dissolve Parliament altogether, and deferred to the House of Lords, where he expected to have some protection. He was mistaken; the House of Lords passed the Commons proposal and demanded that the King ratify the petition. However, the Petition marked a new phase in the ongoing constitutional crisis that ultimately led to the English Civil War and Charles I losing his head.

Charles I - Public Domain Image

Moving ahead to 1640 under Charles I and again in 1679 under Charles II, the Habeas Corpus Acts reaffirmed Magna Carta’s assertion that no one could be imprisoned unlawfully or without due process of the law. This meant that the Crown could not simply command that someone be imprisoned arbitrarily. The 1679 version of the law is still in effect in the United Kingdom, but has been suspended in times of national emergency or in cases involving terrorism. The original Act was passed by the Long Parliament following the impeachment, detention and execution of Thomas Wentworth, First Earl of Strafford in 1641. It was amended under Charles II in 1679 and included language that, in criminal matters other than treason and felonies, prisoners had the right to challenge their detention. For his part, Wentworth was accused of high misdemeanors for his alleged tyranny as administrator of Ireland. Because he was supposedly acting at the will of the Crown, Charles I was very reluctant to sign the death warrant issued by Parliament.

The British Bill of Rights 1689 further limited the powers of the monarch. It was presented to William III and Mary II as they were invited to be joint sovereigns of England. In their coronation, the co-regents swore an oath to uphold the laws made by Parliament. The British Bill of Rights included twelve key points that guaranteed “certain ancient rights and liberties.” It also addressed the alleged wrongdoings of James II of England (James VII of Scotland and James II of Ireland) and declared his flight to France an abdication. Coupled with the Act of Settlement 1701, the two documents contributed to the establishment of the concept of a constitutional monarchy. It is also interesting to note that noted jurist, Sir William Blackstone, described the cornerstone documents as fundamental rights of Englishmen.

Regardless of their intent at the time they each were written, the cornerstone documents are the foundation of not only Her Majesty’s Government but also of other governments around the world, both inside and outside the Commonwealth. Even Alexander Hamilton, one of the United States’ “Founding Fathers,” believed that the British system was the best form of government because its precepts fostered national unity, permitted the people to participate in government through their representatives, and centralized power under a monarch. Hamilton was derided as a monarchist or royalist for these beliefs, but nothing could have been further from the truth. Hamilton was simply advocating for a strong, centralized, efficient government – with the British system being the best model of the day.

One shining example of using “the British model” is the United States Bill of Rights, a series of ten amendments to the original Constitution, ratified in 1789, that guaranteed certain individual liberties. However, the package was not uniquely American in its tone, tenor, and composition. In fact, some of it was modeled after the variety of British documents that make up the essence of the unwritten British Constitution. Not surprisingly, a definite similarity in language appears in the United States’ Bill of Rights when it is laid side-by-side with similar British documents. Had the cornerstone British documents been equitably imposed on the Thirteen Colonies by George III, there might never have been a War for American Independence.

Alexander Hamilton - Public Domain Image

It is enough to say that, despite the pervasive American perception that the American Constitution is unique, nothing could be further from the truth.  We Americans might like to think that our forefathers were profound thinkers and eloquent authors who devised the concepts for our government on their own, but they really were reliant on relatively ancient British documents, some of which were over 500 years old.

Among Commonwealth Countries, the roots of Canada’s constitution also date back to the 13th Century and includes aspects of Magna Carta and the first Parliament of 1275. However, Canada’s constitution contains specific provisions for the entrenchment of statutes from its cornerstone documents, where the American constitution does not specifically mention any of them. Canada’s constitution, like that of the United States, includes Magna Carta (1215), the English Bill of Rights (1689) – plus the Act of Settlement (1701), the Proclamation of 1763, and the Colonial Laws Validity Act (1865). One key difference, however, between Canada’s constitution and the United States Constitution is that Canada’s document, ratified in 1982, is written in modern, unambiguous language. It evolved over time as Canada separated itself from the protection of the Crown and became an independent country.

Australia, on the other hand, does not include a detailed description of individual rights in its constitution, preferring instead to suggest that the rights are included by implication and did not need to be specified, as it was felt in the Constitutional Convention of 1898 that, as British subjects, rights were already guaranteed by Parliament. Australia has repeatedly been chided for this lack of inclusion. However, the Australian constitution does expressly guarantee the right to trial by jury, the right to just compensation, and freedom of religion.

United States Bill of Rights - Public Domain Image

A relatively new arrival in the constitutional discussion is South Africa. Its newest constitution was implemented in 1997 with the end of apartheid under President Nelson Mandela. However, the constitution of South Africa not only codifies numerous individual rights, but defines the rights in a way that is unambiguous and relevant to the 20th Century. In its twenty-seven points, it even guarantees the rights of workers to unionize. Reading through Chapter 2 of the Constitution of South Africa, its parallels with some aspects of the British Bill of Rights, the Habeas Corpus Acts and even Magna Carta quickly become obvious.

Most unique of the major Commonwealth affiliates is New Zealand. It is perhaps the closest to the British model, with its “unwritten constitution” being an amalgamation of both written and unwritten sources. It recognizes the sovereignty of the current British monarch, with power delegated to ministers of the Crown.

The following table summarizes the implementation of British cornerstone documents in the governments of the United States, Canada, Australia, and South Africa. Because of the way New Zealand implemented its constitutional law, there is no written document that embodies separate listings of rights as applied to individuals. It should be assumed that the British cornerstone documents and New Zealand’s implementation are one in the same.


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Michael Paul Hurd retired from full-time employment in 2018 and began writing his first historical fiction novel in August of that year. His “Lineage Series” of novels projects the touchpoints of his family onto events in history on both sides of the Atlantic. Married to his wife, Sandy (daughter of a British emigrant to the United States), for nearly 40 years, he spent over a decade working in the United Kingdom, from 1983-1994. There he took an interest in British history, studying under Dr. Sid Brown of Leeds University. Fourteen novels are planned for Hurd’s “Lineage Series,” several of which will involve topics relevant to British history as they evolve out of the vignettes of the first book in the series. The Hurds have two sons (one deceased) and are doting grandparents to their three grandchildren.

Connect:
https://lineage-publishing.com/
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https://amazon.com/author/hurdm

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