Did England Have A Constitution 100 Years Before America?

The US Constitution is often called the world’s first ‘modern’ constitution. It was the first time a group of people came together and determined how they were going to be governed, rather than relying on centuries of tradition and due precedent. As Alexander Hamilton put it in the Federalist Papers: it was down to “the people of this country” to decide whether societies are “capable or not of establishing good government from reflection and choice.” America’s constitution has since become the model for most other constitutions in the world: codified, with the separation of powers clearly laid out in a physical document, to make it especially hard to alter.

Before this, countries had what we call ‘traditional’ constitutions. Their constitutions were built up over time, through law and precedent. This idea of the ‘traditional’ constitution was mainly developed by Edmund Burke, the Anglo-Irish thinker, writing after the French Revolution. He argued that constitutions should be able to change with the feelings and emotions of the country’s people, improved incrementally over time whilst keeping the parts which still had value. When the system of government reflects the people, there is no social upheaval, goes the argument, and it discourages an extreme overhaul of the system overnight (aka revolution), which causes problems.

By the time Burke was writing (in the late 1700s), Britain was firmly in the ‘traditional’ constitution camp, and has remained so to this day, being the only major country in the world not to have a ‘modern’ constitution. Some say this is why the UK came through the revolutions of the 1700s intact. Others, however, say their revolution simply came too early.

The 1600s were a period of profound political change in the British Isles. England endured a crippling civil war between the monarchists on one side and the parliamentarians on the other. In the end Parliament was victorious, and in the 1649 England was declared a republic. England had experienced what it would later come to hate: the revolution. Centuries of precedent were swept aside.

What would replace them?

The new rulers drafted a document setting out their mode of government: The Instrument of Government, 1653. Was this the world’s first written constitution?

The Room Where It Happened

I find the process of its creation fascinating. To me, it looks very similar to what happened in America 120 years later – and might be a good example of what would have happened if the American Revolution failed – as many revolutions ultimately do.

After the end of the monarchy, the victors, much like they did in America, entered a fierce debate over what the new country would look like. This debate was almost exclusively between members of the army.

To win the civil war, Parliament had funded the development of a permanent, powerful and well-equipped standing army: the New Model Army. Once the revolution was over, the army held the balance of power.

The army was split into several factions, all wanting different things. The Levellers wanted universal suffrage and an end to monarchy: they were populists and made great use of newspapers and pamphlets to bring people to their cause, much like the revolutionaries in America would successfully do. Their ideas were put together in a series of manifestos known as ‘An Agreement of The People’. They wanted:

• The supremacy of the House of Commons over the House of Lords and the Monarch.
• Universal suffrage for all men – “one man, one vote.”
• All Englishmen to have freedom of conscience, equality before the law and freedom from impressment [conscription.]
• Parliaments lasting two years.

These revolutionaries would later inspire those who wrote the US Constitution. However, they failed to find a foothold in England. In the crucial Putney Debates, which lasted two weeks, the officers of the army argued over what the country would look like. In the end the Grandees were victorious: they were the most influential officers in the army, and they favoured a more gradual mode of reform. This was probably one of the most important moments in English history. Had the Levellers won, England might have trod the same path as America.

But the Grandees were still reformists, and they intended to charge the king with high treason and execute him. Some in Parliament tried to reinstate the king. In response, Oliver Cromwell, head of the Grandees, barred them from entering the Parliament and only allowed his allies to sit. This became known as the Rump Parliament.

The Rump Parliament laid the foundations of the new state: it abolished the monarchy and the House of Lords in early 1649, then passed an Act declaring England to be a commonwealth – a republic.

The Instrument of Government was passed four years later. It was an attempt to lay out a method of government for the new country:

• The Lord Protector held executive power: they would be elected, but would hold the position for life.
• Law was created in the House of Commons, which had to sit for at least 5 months every 3 years.
• The Lord Protector would be advised by the English Council of State, made up of 20 members elected by Parliament, who would elect a new Lord Protector on their death.
• All men who owned a certain value of property could vote.

Was It A Constitution?

It depends who you ask. One the one hand, it was a document consisting of 42 articles detailing how the new country would be governed, laying out everything from the makeup of Parliament to the money available to the executive to the system of succession. On the other hand, it named Oliver Cromwell specifically as Lord Protector, and named 15 members of the Council of State, all of which were supposed to be electable figures.

It was also never really followed: Cromwell was able to exert control over the state through his influence with the army (proving, I suppose, the American Revolutionaries’ fears of a standing army.)

It did little to end the unrest amongst all branches of the government. Following the Naylor Case, the House of Commons also took on the role of the judiciary – the Supreme Court in the US. This worried many in the government, including Cromwell.

The system wasn’t working. The legislature held the same power as the judiciary and the Lord Protector, the executive, was way too powerful.

People wanted change: they wanted something that looked a little bit more like the system they had before, with a weaker executive.

Parliament drafted a new constitution, the Humble Petition and Advice in 1657, which contained restrictions on the Lord Protector’s power over taxes, reduced the size of the army, created an Upper House to act as a judiciary (basically re-founding the House of Lords), and offered Cromwell the crown. Cromwell refused to become a monarch, so they amended it, making the Lord Protector able to nominate his own successor instead.

Things fell apart quickly after Cromwell’s death in 1658. The new country had a huge deficit, largely because of its standing army, and owed millions to the military in back pay. Cromwell’s son was a civilian and didn’t have the support of the army, which in itself betrayed how weak the new Parliament was and that the army held an unacceptable amount of power.

Cromwell’s son was forced to abdicate and Parliament was nominally put in charge. Several generals battled it out foractual control of the country.

The King and The Monck

Cromwell’s son was effectively forced into retirement, with the popular general John Lambert asserting control over the country. He was a firm republican, having already destroyed one attempt to invite King Charles back to take the throne. When Parliament baulked at the general’s power, he forced its closure and prevented MPs from taking their seats. He created a new ‘Committee of Safety’ to govern the country until order was restored. England was on the brink of military dictatorship.

But Lambert was opposed by George Monck, the governor of Scotland. He marched south with an army, intent on capturing London. His objective was a mystery.

Lambert’s army melted away as Monck kept them in suspense, refusing to engage. He seized London without firing a shot, being hailed at the time for winning “without shedding blood.”

He wrote a secret letter to King Charles II, who was in exile, and the two agreed that Charles would return to be king of England.

In the Declaration of Breda, Charles promised that any who accepted him as king would be forgiven of any crimes committed during the ‘Interregnum,’ as England’s experimental republican period was to be known. Any who had bought property in that time would be allowed to keep it. Crucially, he promised to pay the army all the money they were owed, and all religions would be tolerated, provided they did not disturb the peace of the kingdom. Charles returned to England, being welcomed by ecstatic crowds in the streets of London.

The Restoration put an end to nineteen years of political upheaval and devastation almost overnight – so abruptly that contemporaries called it a “divinely ordained miracle.” Historian Tim Harris describes it as: “constitutionally, it was as if the last nineteen years had never happened.”

Which throws the status of the constitution into question. Charles restored the old order in practically every way, including by returning to the ‘traditional’ constitution England had used before: the document used by the Commonwealth had been declared null, as though it had never had authority. But of course it did have authority: for years England was governed by it.

It exists in a kind of limbo in England’s legal history: it happened, but there’s no trace of it at all in the country’s laws.

Sorry, America

So, yes, unfortunately, it might be the case that England had the world’s first written constitution, not the US. But the Yanks can take comfort, because it was an awful constitution that didn’t work. It’s a good thing the world’s constitutions aren’t modelled on it. America’s was much better.

But hey, at least America can still claim to be the site of the world’s first liberal revolution, right?

Well, no. Because England’s 1600s woes didn’t end there. Charles was a decent king, but his son, James II, caused all kinds of problems.

He was a catholic.

People worried he would try to bring the kind of absolutist monarchy which was prevalent across mainland Europe to England. Parliament wrote to William of Orange, the protestant ruler of the Netherlands, inviting him to be co-king with his wife (and James’s daughter), Mary.

They agreed. In return, they would accept the Bill of Rights of 1689, which confirmed Parliament’s sovereignty over the monarch after decades of dispute. It laid out the freedoms of individuals and the roles of Parliament and the monarch and is a cornerstone of the British constitution today.

William and Mary landed with an army. James would have fought them, but his army promptly deserted him and he fled into exile. The Glorious Revolution – as it became known – was the first modern liberal revolution, and it happened without a shot being fired.

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