A History of the Constitution — English Common Law, Parliament, Civil War, and Revolution (7/30)
The Long Road to Liberty — English Common Law, Parliament, Civil War, and Revolution (1265–1688)
“The law makes the king” — Sir John Fortescue, 1460
If Magna Carta planted the seed of constitutional liberty in 1215, the next 450 years were the long, brutal, often chaotic process of that seed growing into a recognizable political tradition — the tradition the Founders later believed they were recovering, not inventing. Americans tend to leap from Magna Carta straight to the English Bill of Rights, but the real story is everything that happened in between: the rise of Parliament, the sharpening of due process, the birth of habeas corpus, the English Civil War, and the Glorious Revolution that produced Locke’s political masterpiece.
This entry fills that gap — the centuries during which “the rule of law” slowly replaced “the rule of kings,” and the English began constructing what many of the Founders called “the ancient constitution.” It was a constitution written not in parchment, but in battles, statutes, blood, petitions, and arguments.
This is the story the Founders knew by heart — the story of how liberty fought its way into law.
After Runnymede — Building the Legal Skeleton (1215–1351)
Magna Carta was not a one-and-done victory. Kings ignored it, reinterpreted it, or reissued it with revisions. But over time, a crucial thing happened: the Charter began to harden into custom, and custom into law.
The period from 1215 to 1351 saw three major developments: the reconfirmation of Magna Carta, the rise of Parliament, and the codification of due process and treason law.
Confirmatio Cartarum (1297) — The Charter Becomes Law
Edward I needed money for wars. Parliament refused unless he confirmed Magna Carta.
The result was Confirmatio Cartarum (1297), which did two world-changing things:
Reaffirmed Magna Carta as binding statute law
Declared that taxation required Parliament’s consent
This wasn’t symbolic. It permanently tied money to representation.
When the Founders later insisted on “no taxation without representation,” they were quoting a 1297 English statute.
Rise of Parliament — From Royal Council to Constitutional Force
Parliament did not appear overnight. It evolved. By 1265, Simon de Montfort summoned what is considered the first English Parliament with representatives from towns and shires — a revolutionary step.
Over the next century, Parliament developed into a bicameral body:
House of Lords, composed of nobles and clergy
House of Commons, representing counties and boroughs
The Commons became the most important new institution in Western political history. It was the first durable assembly of non-noble representatives with real political power.
By the 14th century, Parliament had two essential functions:
Consent to taxation
Participation in legislation
This was the germ of what became the American Congress, rooted in the consent of the people.
The Statute of Treason (1351) — A Limit on Royal Accusation
Before 1351, “treason” meant whatever the king wanted it to mean. The nobles forced Edward III to codify treason in statute law:
Levying war against the king
Helping his enemies
Violating certain oaths and protections
Treason was no longer an elastic excuse for political repression. The Founders drew heavily on this tradition when defining treason narrowly in the Constitution.
Due Process Takes Shape — “By the Law of the Land”
Magna Carta had promised no free man would be deprived of rights except “by the law of the land.” Edward III’s statutes clarified this in the 1350s as a recognizable form of due process:
No arrest without warrant
No imprisonment without charge
Trials required lawful procedure
The Fifth Amendment’s Due Process Clause is a direct descendant of this medieval development.
The Birth of Habeas Corpus — The Crown Meets Its First Real Leash (1350–1640)
Habeas corpus — “you may have the body” — evolved slowly through case law, but by the 1300s to 1600s it became a powerful remedy against unlawful detention.
Its essential promise:
The king’s jailer must give legal justification for holding a prisoner — and a court may release the prisoner if the justification is inadequate.
By the early 1600s, habeas corpus had become the symbol of English liberty. The 1679 Habeas Corpus Act formalized the writ’s power. Without habeas corpus, the American legal system makes no sense. The Founders cited it repeatedly as the greatest safeguard of personal freedom.
The Constitution preserves it in Article I, Section 9 — and only allows suspension in rebellion or invasion. That’s how sacred this medieval principle had become.
Parliament vs. Crown — The Long Fight Over Sovereignty (1400–1600)
From the late Middle Ages into the Tudor dynasty, Parliament grew stronger while the monarchy grew more centralized. The struggle between them sharpened the constitutional principles the Founders absorbed.
The Tudor Moment — Strong Kings, Stronger Law
Henry VIII and his daughter Elizabeth I were powerful monarchs, but they depended heavily on Parliament for revenue. Over time, Parliament weaponized this dependence.
By the 1500s:
The Commons was asserting itself aggressively
The idea that Englishmen had ancient rights became widespread
The doctrine of the “ancient constitution” began solidifying: the belief that liberties were old, not granted by kings
This idea — liberty as inheritance, not privilege — became central to the American Revolution. And Americans would learn that references to an “ancient constitution” were useful, but not as useful as writing down those promises.
The Stuart Crisis — Petition of Right (1628) and the Road to Civil War
The early 1600s were the crucible of modern constitutionalism. Here are a few critical events.
Charles I and the Abuse of Royal Power
Charles I began ruling without Parliament in 1629, raising taxes illegally, using martial law, and imprisoning critics without charge. This was the exact kind of behavior the Founders later accused George III of.
Petition of Right (1628)
Before Charles dissolved Parliament, they extracted a constitutional concession:
No taxation without parliamentary consent
No imprisonment without cause
No quartering of soldiers
No martial law in peace
This document became, for the Founders, the highest symbol of English constitutional liberty prior to 1689. John Adams quoted it frequently. Jefferson considered it an essential precursor to the Declaration.
The English Civil War — When Liberty and Power Collided (1642–1651)
The Civil War wasn’t just a conflict between king and Parliament. It was a clash over the ultimate source of political authority:
Does sovereignty rest in the king?
Or in the people, through Parliament?
The Levellers and the Putney Debates (1647)
This is where “An Agreement of the People” emerged. The Levellers were radical (for their time) republicans arguing for:
Universal male suffrage
Written constitution
Equality before the law
Religious toleration
Parliamentary supremacy
In the Putney Debates of 1647, soldiers and intellectuals openly challenged the entire medieval order. For the first time in English history, people argued that political legitimacy derives from the people as individuals.
This is the birth of popular sovereignty. The Founders were fascinated by these debates. Madison owned Leveller texts. Jefferson praised their radicalism privately. We will discuss the Levellers more in the next entry.
Cromwell and the Instrument of Government (1653)
Cromwell’s Instrument of Government became the first written constitution in European history.
It established:
A Lord Protector (executive)
A unicameral Parliament
Regular elections
A guaranteed “fundamental law”
This experiment collapsed, but its idea endured. America succeeded where Cromwell failed — but the blueprint was there.
The Restoration — Charles II and the Final Showdown (1660–1688)
When the monarchy returned in 1660, England learned something important: You cannot turn back the clock on liberty. That bell, as some say, cannot be unrung.
Charles II attempted to reassert royal authority, but Parliament — particularly the Commons — was too strong at this point. They had tasted political power and weren’t giving it back, which became a blueprint for every liberty movement that followed.
Habeas Corpus Act (1679)
The Act prevented:
Imprisonment without quick presentation in court
Transfer of prisoners to evade judges
Delays in trial
This was the final blow against arbitrary detention. The Founders viewed it as one of the highest achievements of English liberty. Kings could no longer use the legal system as their own personal defense against criticism. No, laws stood even above kings.
The Glorious Revolution — The Liberty Earthquake (1688–1689)
When James II began ruling as an open Catholic absolutist, Parliament invited William of Orange to invade and depose him — peacefully if possible, forcefully if necessary.
This was the Glorious Revolution, and it changed the world:
James fled without a major battle
Parliament declared he had abdicated
William and Mary agreed to rule under conditions
Sovereignty shifted from crown to Parliament
This was the first successful revolution grounded in the rule of law.
Locke Enters the Chat (1689)
John Locke published Two Treatises of Government as justification for the Revolution:
Government exists to secure natural rights
Power flows from the people
Tyranny justifies removal
No ruler has divine right
Legislative power must be supreme but limited
Locke’s ideas weren’t just the philosophy of his time, they were a battle cry of a people who wanted to be free. Later, those ideas would flow directly into the Declaration of Independence. Jefferson essentially rewrote Locke in American idiom.
The English Bill of Rights (1689) — The Constitutional Settlement
Now, at last, we reach the document your earlier entry covered.
The English Bill of Rights:
Declared the rights of subjects
Established parliamentary supremacy
Limited royal authority
Codified free elections, free speech in Parliament, and the right to petition
It was the culmination of 450 years of struggle. For the Founders, 1689 was not a revolution. It was a restoration — a reclaiming of the ancient English constitution. Rights were natural. They had always been. They weren’t being created, they were being recognized for what they are.
This is what Americans believed they were defending in 1776. We will expand on the full story of the English Bill of Rights in the next entry.
Reflection — The Founders’ Inheritance
When the Founders read history — and they read it obsessively — this is the constitutional tradition they saw:
Magna Carta: limits on arbitrary rule
Confirmatio Cartarum: taxation tied to representation
Parliament: the voice of the people
Due process statutes: law over will
Writ of habeas corpus: liberty defended by courts
Petition of Right: constitutional resistance
Civil War: people as a political source
Levellers: sovereignty grounded in individuals
Cromwell: written constitutional experimentation
Habeas Corpus Act: safeguards made concrete
Glorious Revolution: legitimacy built on consent
Locke: the philosophy of natural rights
1689 Bill of Rights: liberty codified
This was the world they saw themselves inheriting — and perfecting. America was not born in 1776. It unfurled slowly, painfully, stubbornly over half a millennium of English constitutional development.
Without these centuries of struggle, the Constitution would be unthinkable. The greatest document in the history of the world was the result of two thousand years of Western thought, failures, and blood, our Founders simply wrote down the lessons they had learned.
External Links for Further Reading
Next Entry: The English Bill of Rights (1689)