Comments on: Continuities and Divergences in US and English Constitutional History

By: Lex

Lex — Tue, 18 Oct 2005 22:16:59 +0000

Robert, thanks.

I agree, Coke and Blackstone were the main sources for American lawyers. Nonetheless, those worthies cited to earlier English material. There are numerous compendia of English Constitutional documents. It would have been good to go back even farther.

I am well aware of the many remarkable books available from Liberty Press, as well as the wonderful online material available from them. I have many of their books, including the Lord Acton set. Many further books on this topic cry out from my shelves — Stubbs’ Constitutional History; Pollock and Maitlands’s History of English Law; Rene David’s Major Legal Systems of the World; Charles H. McIlwain’s Constitutionalism; A.V. Dicey’s Law of the Constitution — which I read as a child and have largely forgotten –, etc.

The problem is time.

By: Robert Schwartz

Robert Schwartz — Tue, 18 Oct 2005 21:40:15 +0000

Lex: For your reading pleasure, I can highly reccomend: History of England: Volume V, The first two Stuarts By David Hume History of England: Volume VI, The last Stuarts and the Glorious Revolution By David Hume They are $10 ea. in paperback and $20 in hardbound. And yes the author is that David Hume, who was the greatest philosopher to ever live.

By: Robert Schwartz

Robert Schwartz — Tue, 18 Oct 2005 21:29:55 +0000

“But I note that the very valuable multi-volume set entitled the Founders’ Constitution, which I link to above, cites almost exclusively to Colonial era American documents.”

“Yes, as I said American historians and lawyers simply do not study their English roots.”

Their texts were Coke and Blackstone.

By: Lex

Lex — Tue, 18 Oct 2005 01:40:30 +0000

When I read Maitland’s Constitutional History last year one thing that kept jumping out at me was how medieval and early-modern English rules and developments were reflected in our Constitution. But I note that the very valuable multi-volume set entitled the Founders’ Constitution, which I link to above, cites almost exclusively to Colonial era American documents. This is accurate but very incomplete. The Founders, such of them as were lawyers, certainly, were very aware of the development of English law, especially what is known as Constitutional law, i.e. that which pertains to limitations on the power of the Crown. This is an extremely interesting and enlightening area for study, which is too little appreciated. If I didn’t have to work for food like everybody else, I would devote some of my waning time and energy to studying this question further. As it is, I can only point to the odd stray thing that comes to my attention.

By: Robert Schwartz

Robert Schwartz — Tue, 18 Oct 2005 00:57:24 +0000

Before I went to law school, I was a history major at the UofC and earned an MA in History at the U of Michigan. At both institutions I concentrated in American History. However, I did not study English history until I was many years out of school and started reading it on my own. It was only then that I began to understand American Constitutional history.

One of the problems we have with the study of American History in this country is that the specialist method of education does not require students to have a broad understanding of English history, which was the matrix of American society and government in the 17th, 18th and 19th centuries. Nor do they receive a sufficient introduction to the history of religion which has been a dynamic factor in the history of our society.

The issues you mention above are only a few of the issues that can be best understood in light of English history, particularly the 17th century and its revolutions in England. We must remember that the colonies were just that, and that they were dependent on and a part of the English society that was so profoundly changed during that century.

Impeachment, which you mention above, is one example. At the common law it was the criminal process that could be brought against one of the Kings Ministers or a Peer of the realm. In the 17th century it was used to attack some of the ministers that Parliament found obnoxious, most notably Strafford, who was ultimately sent to the chopping block by Bill of Attainder (another term in the Constitution).