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  • Continuities and Divergences in US and English Constitutional History

    Posted by Chicago Boyz Archive on October 17th, 2005 (All posts by )

    Constitutional history in the Anglosphere is a unity, and an ancient unity:

    … there is an absolute continuity between medieval and modern constitutionalism. When President Nixon got into his helicopter and left the White House lawn and his office, he did so because he was afraid he would be impeached. Impeachment in the American constitution does not bear an accidental or trivial relationship to that which brought down Michael de la Pole, earl of Suffolk, chancellor of England in 1386. It was the same procedure and the descent can be traced without any shadow of doubt.

    James Campbell, The Anglo-Saxon State.

    F.W. Maitland noted as long ago as 1888 that impeachment in England had effectively died out. He noted that there had been only one impeachment in the 19th Century, and that back in 1805. The English procedure was akin to that provided in the U.S. Constitution. The House of Commons initiated an action against one of the kings officers, who was then tried by the full House of Lords, sitting as a court. Unlike impeachment under the U.S. Constitution, which expressly restricts the penalty to removal from office, the English impeachment allowed any penalty the Lords saw fit to impose, including death. As we saw in the Clinton impeachment, the U.S. Senate acted in the unusual capacity of a court, as provided for by the Constitution, a vestige of its origins as an analog of the House of Lords, as the Founders intended.

    Maitland noted that:

    It seems highly improbable that recourse will again be had to this ancient weapon unless we had a time of revolution before us. If a statesman has really committed a crime then he can be tried like any other criminal: if he has been guilty of some misdoing not a crime, it seems far better that it should go unpunished than that new law should be invented for the occasion, and that by a tribunal of politicians and partisans; for such misdoings disgrace and loss of office are now-a-days sufficient punishments. Lastly a modern House of Commons will hardly be brought to admit that in order to control the kings advisers it needs the aid of the House of Peers. However, there the old weapon is an accusation by the commons of England at the bar of the House of Lords.

    (Maitland, The Constitutional History of England.) I do not believe there has been any other impeachment in Britain since. So, this old weapon has most likely fallen into permanent desuetude. I suppose there is the remote prospect that an appointed House of Lords might be considered a more appropriate venue for an impeachment than a hereditary one, making a reappearance of this practice theoretically possible. Of course, if Britain were to go to an elective House of Lords, any power of impeachment would probably be expressly provided for by the enabling statute or written Constitution, whichever was employed. Retention of the right to summarily impose the death penalty on erring officers of the Crown is unlikely to be provided for, if the current soft-hearted attitudes continue to prevail. Not that there is anything wrong with that.

    Our written American Constitution has allowed us to retain more of these ancient vestiges than the English one, curiously enough. The Second Amendment is a good example. The provision in the Bill of Rights of 1689 which it was based on holds that those “…subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law” — is now a dead letter. There is no way for a provision to “drop out” of the U.S. Constitution, short of amendment. A court may say that a provision is obsolete, but a later court may find a use for anything which is still there. “Young” America has a more “Ancient” Constitution than “Old” England, and has retained more of its freedom as a result.

    (Cross-posted on Albion’s Seedling.)

     

    5 Responses to “Continuities and Divergences in US and English Constitutional History”

    1. Robert Schwartz Says:

      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).

    2. Lex Says:

      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.

    3. Robert Schwartz Says:

      “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.

    4. Robert Schwartz Says:

      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.

    5. Lex Says:

      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.