The fundamentals of British law reside in the American Constitution. Historian Nancy Milton describes the English influence.
Lloyd Dobyns: Hi, welcome to Colonial Williamsburg: Past & Present on history.org. This is "Behind the Scenes" where you meet the people who work here. That's my job. I'm Lloyd Dobyns, and mostly I ask questions.
This week, we continue our look at Revolutionary documents – the words that defined the character of our emerging nation.
It's an unfamiliar idea, but it's true: the American colonists had a constitution long before Philadelphia. They were English subjects, and they labored under the protection of the British Constitution.
Historian Nancy Milton is here with me now to tell us more about the principles of the British Constitution, and how they informed America's.
Nancy Milton: Unlike the American Constitution where you had a group of men meeting for three to four months in Philadelphia in 1787 who actually set down, argued, debated, and wrote out a plan of government for the new United States, the British Constitution has evolved over a period almost of 1,000 years.
So they have what is called an "unwritten constitution." They did not have a group of British men coming and sitting down at Westminster and planning a form of government for the English nation, like America. But, they had a number of documents which date, many of them dating back centuries, that form what they call a British Constitution.
Lloyd: What part or parts of those became part or parts of what we know as the American Constitution?
Nancy: Well, we took bits and pieces of many of those documents. The Magna Carta, for example, which is one of the oldest documents that the British consider as part of the Bible of their constitution, dates to 1215.
I think we all know the story of a group of nobles under King John forced him to meet with them at a meadow at Runnymeade on the Thames about 20 miles from London. They had a document that comprised 63 articles that basically went over some of the grievances they had with the king at that time.
From reading or interpreting that document through the ages, two major principles have come out of that. One, that no freemen can be arrested or otherwise molested without a lawful judgment of his peers. Through time, people have analyzed that to mean the right to a jury trial, which is something that America has incorporated into her system.
Another part said that no feudal dues – with certain reasonable exceptions – shall be levied unless by the common consent of our kingdom. Many legal historians translated to mean "no taxation without representation," another bulwark of the American government. Also the germ of parliament, because what does the common consent of the people mean?
So this document, even though when it was first issued by the nobles and signed forcibly by King John, was mostly for the nobles. It was not for any grand plan of rights of the people. Through time, these two things have become the standard for British government and for American government.
Other documents, such as the Petition of Right, which was issued in 1628, basically against Charles I by parliament, stating that he had overstretched his bounds as far as the kind taking the law into his own hands, so to speak. They were laying out things that they did not want him to do, like billeting troops without their consent, and not allowing free debate in parliament. So this was another standard document.
Then we get to 1689, when William and Mary come on the throne before they were allowed to take the throne, they agreed to a bill of rights. Many of the parts of the English Bill of Rights are in now the American Bill of Rights.
So there's a lot of influence that came with America. The founding fathers had in their minds, they knew these documents, and they used these documents to help create an American Constitution – a written document.
Lloyd: Has there ever been a document that a king signed that was principally for the ordinary man and woman?
Nancy: I don’t think so, at least not until recently. More until basically the 19th century. You're getting also a little bit into the 18th century, because even the word "commons," when you have the House of Commons, the evolution of Parliament, which they think officially began in 1295 with the House of Lords and House of Commons, "commons," for them, did not mean "peasants," or the everyday man. It meant those who had some standing in the community, and those who had accumulated property over time. They were the ones being elected to serve in the House of Commons.
They were sort of the rising upper middle class who were not nobles and who were not members of the church. It was a different class. They were not representing the poor. They said that they did represent the poor. Generically speaking, a member of parliament would represent everyone in their district, even though their interest in the earlier years were for the wealthy: their own class.
Lloyd: In our Bill of Rights, if I have read it correctly, most of the 10 items are covered somewhere in the British Constitution, except perhaps for freedom of religion.
Nancy: I think you're exactly correct. Things like the right to bear arms is in the Bill of, the English Bill of Rights. The "no excessive bail" is in the English Bill of Rights. Trial by jury is in the English Bill of Rights. As far as I can determine, there were no religious protections in the English Bill of Rights. They were Church of England.
Lloyd: After they were Roman Catholic.
Nancy: After they were Roman Catholic. They had religious toleration; they had the Toleration Act that was passed late 17th, early 18th century. They tolerated other religions, but you still had to pay your taxes to the Church of England, even though you might be a dissenter. That's one of the unique features of the American Constitution and the Bill of Rights.
Lloyd: Anything else that I've missed? Something that Americans did that the British hadn’t done?
Nancy: I think one thing is actually writing it out, which makes it available to the common people – to anybody who wants to look at the Constitution. The British Constitution's a little harder, because you've got all these documents like the Magna Carta, the Act of Settlement, which determines who's going to be on the throne of England, and saying "no Catholics are allowed on the throne of England." They have a number of parliamentary laws, English Common Law, which is case law or law in courts.
We got bits and pieces of this, but the English Constitution, because it's made of such a variety of documents, is a little harder to get into and to understand and to study. Whereas we have a document, and we have a Bill of Rights that anybody can look at.
Lloyd: But we're still arguing about what it means.
Nancy: We're still arguing about what it means, exactly, and probably will go on. Each generation has a new look at it, and says, "It really meant this. The founders really meant this." We're taking the language that they wrote over 200 years ago and making it applicable for the 21st century.
Lloyd: If you consider that the English Bill of Rights probably began, as we understand it, in the 13th century, then we're actually arguing about a document that isn't 200 years old, it's closer to 800 years old. It's remarkable that it works at all, isn't it?
Nancy: It is. The English have had a lot more time and a lot more practice at government than we have. They've had almost, as you said, almost 1,000 years of evolving their government, of trial and error.
The two main things of the British Constitution is the rule of law and the supremacy of parliament. We see that evolving as they try to take away the rights of the king or queen. Parliament, finally, at the end of the 17th century, emerges triumphant. They are supreme over the king, saying even the king is not above the law. The law is supreme. It's interesting to note that many of the founding democracies that are coming out now, the newer democracies around the world, are not as often adopting our federalist plan, but are going with the parliamentary plan of Great Britain. You see this a lot more than you see the American form of government replicated in the world, which is an interesting thought.