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.

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Escape!

By Michael Paul Hurd

Charles II’s Royalist army was defeated by Oliver Cromwell’s New Model Army at Worcester on 3 September 1651. Following the defeat, Charles II became a fugitive for the next six weeks, before he successfully escaped to Normandy, France, on the morning of 15 October 1651. During his fugitive period, Charles II covered a circuitous 625-mile (1006 km) route from Worcester to Shoreham and were almost captured on several occasions. The route of Charles II’s escape is known as “The Monarch’s Way” and is signposted as a Public Footpath in its entirety. Charles II himself recounted the exact details of his escape to the Earl of Clarendon, Samuel Pepys (pronounced “peeps”), and his personal physician, Doctor George Bate. There were few discrepancies in the accounts recorded by each of the three men.

During his time as a fugitive, Charles II apparently gained a new appreciation for the life of the common man in England and how badly the populace had been affected by the English Civil Wars. Traveling in disguise most of the time and without a significant entourage, he relied on loyal subjects and Catholic noblemen for concealment. The subterfuge was elaborate: Charles was at times dressed as a common field hand, had his coiffure changed to match the locals, and even had what would have been the equivalent of a “dialect coach” to teach him how to speak and walk like a local laborer instead of an educated royal. At other times, he adopted an alias.

One of his most notable situations was his brief stay at Boscobel House in Shropshire, on 6 and 7 September 1651. There, Charles spent all day hiding – and even sleeping -- in a nearby oak tree while Parliamentary forces searched nearby. This tree later became known as the “Royal Oak” and a descendant of that tree still stands on Boscobel grounds. The King’s companion at the time, a Colonel Charles Careless, hid with Charles inside the oak tree and was responsible for alerting the King to imminent danger. Meanwhile, Boscobel House caretakers were detained and questioned by Parliamentary forces at the local militia headquarters but somehow managed to convince their interrogators that the King had never been on Boscobel House grounds, nor the White Ladies priory in particular.

So loyal were the Boscobel caretakers that they did not surrender Charles’s location to the Parliamentarian militia, even when reminded that there was a £1,000 reward for information leading to the arrest of the King and that the penalty for harboring the royal fugitive was “death without mercy.” However, the proximity of the militia to Charles’s location of concealment emphasized the importance of getting Charles out of England as quickly as possible.

Boscobel House - Image Attribution

Once again, Charles was on the move. His next exploits involved assuming the identity of a servant accompanying a woman who had a travel pass from the Parliamentarian military to visit a friend who was about to have a baby in Abbots Leigh, Somerset. Charles rode with the woman on a single horse, which threw a shoe during the journey. Because Charles had assumed the identity of a servant, it was his responsibility to take the horse to a local blacksmith; there, he engaged in a conversation with the blacksmith. In Charles’s own dictation of the escape to Samuel Pepys, he claimed to have told the blacksmith that “the rogue, Charles Stuart… deserved to be hanged more than all the rest…” Later, the King continued the ruse as a servant and was put to work in the kitchen, tending to a joint of meat roasting in the fireplace. He was inept at winding up the apparatus, and even claimed that he came from such poor beginnings that his family rarely ate meat, hence the inability to operate the roasting jack.

The exploits of the escape became even more elaborate over the next couple of weeks. His loyal accomplices tried to locate available ships to depart from Bristol; there were none available for at least the next month. Finding a hiding place in Trent while two Royalist officers tried to find a ship to sail from Lyme Regis or Weymouth, Charles himself witnessed a celebration by the local villagers who believed that he had been killed at Worcester. No one had recognized him. He later traveled with Juliana Coningsby, a niece of Lady Wyndham (who was the wife of accomplice Colonel Wyndham), pretending to be an eloping couple. They reached the market town of Bridport but found that the town was filled with Parliamentary troops. Charles boldly walked through the town to the best inn and arranged for rooms. He was almost recognized at the inn, but deflected and convinced the ostler that they had been servants together in the employ of a Mr. Potter in Exeter.

After the encounters in Bridport, the escape became much more complicated, but eventually Charles and his longtime traveling companion, Lord Wilmot, reached Brighthelmstone (now known as Brighton). There, the King was recognized by a former servant of the royal household under Charles I. This recognition was immediately problematic for the King; the captain of the vessel that was to transport him and Wilmot to France demanded an additional £200 as “danger money” before he would set sail. On the morning of 15 October 1651, Charles and Wilmot boarded the “Surprise”, sailing at the next high tide, around 7 a.m. A mere two hours later, Parliamentarian cavalry arrived in the village of Shoreham with orders to arrest the King.

Lord Wilmot

The previous narrative is an extreme oversimplification of Charles II’s escape to France. However, throughout the journey, Charles II repeatedly crossed paths with commoners and even assumed the identities of common servants; this is believed to have given him a thorough appreciation for their plight. When he returned to England nine years later at the request of Parliament following the death of Richard Cromwell, England was in political turmoil and the religiously divided House of Commons welcomed the Declaration of Breda in mid-1660. In this declaration, Charles II promised tolerance and liberty. He even promised not to exile past enemies nor confiscate their wealth.

Some historians have characterized Charles II as a popular King and a legendary celebrity in British history. Others have cited his ineptitude and poor judgment as contributing to a series of poorly prosecuted wars in the latter half of the 17th Century. Regardless of the bifurcated opinions, Charles II managed to guide Great Britain out of a period of extended political turmoil and towards the evolution into a constitutional monarchy under the Bill of Rights (1689) and the Acts of Settlement (1701).  These documents actually formed the basis for the United States Constitution, ratified approximately 100 years later.

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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. Genealogical research indicated that he is a distant relative of Jane Giffard, wife of Sir John Giffard, MP (1466-1556) and their line, which at one time owned Boscobel House. 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. 

Connect:

https://lineage-publishing.com/

Buy:

https://amazon.com/author/hurdm