CHAPTER TWO

Political and Philosophical foundations of constitutions

2.5.1 THE PRINCIPAL PROVISIONS OF THE MAGANA CARTA

Fig.9 1297 copy of the Magna Carta, owned by the

Australian Government and on display in the
Members' Hall of Parliament House, Canberra.

Fig.8 John of England signs Magna Carta. Illustration from Cassell's History of England
(1902)

The Magana Ctarta was signed by King John of England in response to the complaints of his barons, and
thus its emphasis is on limits of royal authority and the proper relationship between king and subjects.

The Magna Carta of 1215 contains 63 clauses. The first restates the charter that John issued in 1214, which
had granted liberties to the Church. In many clauses John promises to be less harsh in enforcing his feudal
rights on the barons, and another clause states that the barons must grant to their tenants all the feudal
concessions that the king has made to them. Many clauses concern the legal system; in these John
promises to provide good and fair justice in various ways. The last few clauses concern enforcement of
the document.

The two most important clauses of Magna Carta are among the legal clauses. Clause 40 promises, “To no
one will we sell, to no one will we deny or delay right or justice.” This clause establishes the principle of
equal access to the courts for all citizens without exorbitant fees. In clause 39, the king promises, “No free
man shall be taken or imprisoned or outlawed or exiled or in any way destroyed, nor will we go or send
against him, except by the lawful judgment of his peers or by the law of the land.” This clause establishes
that the king would follow legal procedure before he punished someone.

Historians have debated at length the meaning in 1215 of “by lawful judgment of his peers or by the law of
the land,” and who exactly was covered by the term “free man.” By the later 14th century, however,
statutes interpreting the Magna Carta equated “judgment of peers” with trial by jury (which did not exist
in criminal cases in 1215). Other statutes rephrased “by the law of the land” as “by due process of law.”
These later statutes also substituted “no one” or “no man ofany sort or condition” for “no free man,” which
extended the protections of the clause to all the

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 king’s subjects. These protections were cited in many founding documents of the American colonies and
were incorporated into the Constitution of the United States.
By most accounts only clauses 39 and 40 of the Magna Carta remain valid law in England. Eventually, the
other clauses became outmoded and some were repealed. Nonetheless, the Magna Carta remains a major
document in the history of individual liberty. The document establishes the principle that no person, not
even the king, is above the law. More specifically, this means that the government must follow its own laws
in its dealings with its citizens, just as citizens must obey the law in their dealings with other citizens.
2.5.2 THE INFLUENCE OF MAGANA CARAT ON LATER CONSTITUTIONS
The importance of the Magna Carta lies more in its symbolism than in its words. As a result, many modern
rights have been based on the Magna Carta that was unknown in the 13th century, including Habeas Corpus
and the “Principle of No Taxation without Representation”. Neither of these concepts existed in the original
Magna Carta of 1215 but both became accepted as English law during the early 17th century.
At that time, members of Parliament, the English legislative assembly, who opposed the rule of the Stuart
kings of England and sought a reduction of royal powers, relied upon the Magna Carta. It was cited as an
authority in the Petition of Right of 1628. It was also cited in the debates that culminated in the Habeas
Corpus Act of 1679, which prohibited the imprisonment of citizens without just cause. The use of the
Magna Carta in these debates gave it a renewed prominence as a guarantee of the rights of citizens.
Many later attempt to draft constitutional form of government, including the United States Constitutions,
traced their lineage back to Magana Catra. The British dominions, Australia and New Zealand, Canada(
except Quebec), and formerly Union of South Africa and Southern Rhodesia, all look back to Magana Carta
in their law, and the Charter impacted generally the on the States evolved from the British Empire. The
Magna Carta remains to be the turning point in the struggle to establish freedom and a key element in the
transformation of constitutional thinking throughout the world.
2.1 THE ENGLISH REVOLUTION AND THE BILL OF RIGHTS

2.1.1 BACKGROUND TO THE REVOLUTION

Since 1603 England and Scotland had the same ruler but remained separate countries in all other aspects.
England and Scotland did not become politically united, except in the time of Cromwell, until the Act of
Union in 1707. Then after 1707 with a single parliament and Government, England and Scotland became
“Great Britain”. The Tudor Dynasty had made the English Monarchy strong but not absolute because of
two main reasons.
1) The king had no regular, professional army and only a small bureaucracy of paid officials. The monarchy
needed the cooperation of the land owing nobles and gentry and rich citizens (bourgeoisie) to govern the
country.
2)The existence of representation National Assembly called the Parliament. The Parliament was made of two
houses.
A)The House of Lords: - consisting of unelected heads of noble families and the archbishops and bishops of
the official Church of England.
B)The House of Commons: - consisting of elected individuals who represent the people. In fact, the election
and voting process was not democratic. It was composed of members drawn from the gentry and a few
bourgeoisie merchants and lawyers who were elected as members of the parliament in the House of
Commons.

However, serious conflict between the parliament and the king began in the reign of Charles I (1625-1649)
and cooperation between the king and the ruling class began to breakdown. The most serious disputes were
about foreign policy, then money and religion. As a result Charles had so much trouble from the parliament

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that after 1629 he did not call a meeting of parliament again until 1640. In the eleven years, Charles ruled
without parliament and continued to collect money. He was ruled like an absolute monarchy.

2.1.2 THE BEGINNING OF THE REVOLUTION

The revolutionary crisis began in Scotland because of the reason that Charles imposed the Church of England
Prayer Book for the Church service in Scotland. In order to suppress the rebellion in Scotland and to collect
money, he called the parliament. However, the parliament opposed to approve any taxation and the king
quickly dissolved what is known as the Short- Parliament (April- May 1640). But in November 1640, the king
was forced to call the parliament again due to the horizontal and vertical expansion of the rebellion throughout
the country and became known as the Long-Parliament (1640-1653).

At the beginning, members of the House of Lords and Commons of the Long Parliament were united against
the king and compelled him to accept laws that seriously limit his power. But in the later years the parliament
itself became divided into two. The first was a majority, but only a small majority, of the House of Lords,
wanted to take away all the powers of the king and make him a puppet of the parliamentary leaders. The
second division was a little less than half of the Commons and most of the Lords believed that parliament was
going too far in opposing the king. These conservatives feared political and religious radicalism among the
lower classes. This division finally led to destructive civil war between the parliament in the one hand and
the king in the other hand. In the First Civil War the richest part of the country and the navy stood on the
behalf of the parliament. Thus, the parliament won the war by raising a new centralized force called the New
Model Army. The parliament able to won the civil war because it was supported by the middle class,
merchants and manufactures.
The consequence of the first civil war, lack of amicable political settlement, and absence of far reaching peace
agreement between the king, the navy and the parliament led to the outbreak of the Second Civil war in
1648.Befor and after the second civil war, radical political and religious ideas had emerged. A large secular
political movement called Leveller Movement had appeared.

In the Second Civil War, the new Model Army commanded by Oliver Cromwell put an end to Charles I and
the Monarchy. Members of the House of Commons who remained with the army called “Rump” beheaded
Charles I publically in 1649 and abolished the House of Lords. They also declared England as a Republic,
known as the Common Wealth. From 1648-1653 the “Rump” of the Long Parliament ruled England. But after
the death of Cromwell, the ruling class of England, who had been divided by the civil war, reunited a
restoration of the monarchy. The restoration brought back the monarchy, the House of Lords, the State Church
of England that had been abolished by the Long Parliament and the traditional constitution. This was what
became known as the “Glorious Revolution” because it preserved the continuation of the abolished political
system and succeeded without bloodshed.

In 1689, the Parliament presented a declaration to the king that became known as the Bill of Rights. This
famous document assured the people with certain basic rights. It stands withMagana Carta and the Petition of
Rights as the legal guarantee of English liberty. The Bill of Rights listed certain rights that were the “true,
ancient, and inducible rights and liberties of the people “of the England Kingdom. It settled the succession to
the throne. It also made it illegal for the king to keep a standing army, to levy taxes without parliament’s
approval. Generally, the Bill of Rights brought about unprecedented degree of political freedom and religious
liberty to England and to the rest part of the world in the later days. As a direct consequence of the revolution,
it saved England from the threat of absolute monarchy with minimum of change to the traditional constitution
and maintained rule of law.
2.7) THE AMERICAN REVOLUTION AND THE U.S. CONSTITUTION
The American Revolution (1775-1783) was a conflict between the 13 British colonies in North America and their parent
country, Great Britain. It was made up of two related events. These were: 1) The American War of Independence; and
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2)The formation of the Federal Government of American as lay out by the constitution of the in 1787.

Slowly, sentiment in favour of independence grew among the colonist. On July 4, 1776, the second Continental Congress
the body then representing the 13 colonies, adopted a democratic document called the Declaration of Independence which
was signed two days later. The declaration officially cut ties with Great Britain. It also proclaimed that what had been the
13 British colonies were now independent and became the United States of America. The engineers of this famous
document were:
1.Thomas Jefferson: the main author of the Declaration of independence who led the Committee and became the third
President of America.
2. Slowly, sentiment in favour of independence grew among the colonist. On July 4, 1776, the second Continental
Congress the body then representing the 13 colonies, adopted a democratic document called the Declaration of
Independence which was signed two days later. The declaration officially cut ties with Great Britain. It also proclaimed
that what had been the 13 British colonies were now independent and became the United States of America.
The Declaration of Independence introduced a fundamental change in the view of government. Thomas Jefferson declared
that governments were created to serve the people and could only act with consent of the people. Jefferson divided the
document into three sections as follows:
1. The first part established the natural rights of all people saying “All men are created equal” and “are endowed by their
creator with certain unalienable Rights (rights that cannot be taken away). He wrote people have the basic rights to “Life,
Liberty and the pursuit of Happiness”. Government ruled only with the consent of the people. To secure these rights,
governments are instituted among men, “deriving their just powers from the consent of the governed. “(The people).
“Whenever any Form of Government becomes destructive of these ends, it is the Rights of the people to alter or to abolish
it, and to institute new Government.”
2. The second section listed the reasons why the colonies felt they had to declare independence.
3. The last part formally stated that the colonies wanted to cut all colonialists with Great Britain. Thomas Jefferson
declared the colonies to be “free and Independent”.
Britain did not accept to Declaration and continued the war to end the “colonial rebellion”. From 1776 to 1783, the
patriots waged a bitter struggle against British armies and navy. After the patriot force won a clear-cut victory the final
treaty was signed in September 1783 in which Britain agreed to recognize American Independence. With independence a
new nation was born called the United States of America.
In 1787 a group of men gathered in Philadelphia for an important meeting for weeks this body discussed and debated and
compromised. The result was the Constitution of the United States, the same constitution that Americans live under today
except for amendments which have from time to time been added. The constitution left many powers to the individual
states but authorized the new central government
1.To levy and collect taxes, 2. To raise and maintain any army and navy, 3. To declare war and make treaties, and 4. To
regulate trade between states and with foreign nations. It established a strong federal government. George Washington
was the first president under the new constitution. The constitution of the United States was drawn up by the
constitutional convention of 1787 to create the system of federal government which began to function in American 1789.
Since then, 26 amendments have been added. The first 10, called the Bill of Rights, were adopted in 1791. The 26th
amendment was ratified on July 5, 1971.
2.7.3 INFLUENTIAL POLITICAL THINKERS OF THE U.S. CONSTITUTION

The authors of the American constitution had been influenced by different political philosophers and thinkers. Many of
the political theories of John Lock and Baron de Montesquieu significantly influenced the designers of the constitution.
The 18th century French political theorist, Baron de Montesquieu, theorized a scheme of check and balances that advocate
the assignment of separate powers to monarchical, aristocratic, and democratic political institutions. In addition,
Montesquieu argued in his study The Spirit of the Laws (1748) that the best way to provide a check against the abuse of
power by monarchs was through intermediary bodies that the monarch could not abolish, such as the church, guilds, and
professional associations. The dispersion of power to these institutions outside of government would make it more
difficult for the government to abuse its authority. Montesquieu, along with many theorists before him, assumed that
balance could succeed only in a society with a relatively small and homogeneous population. Some of Montesquieu
political ideas that influenced the constitution of the US are the following.
2.8 THE FRENCH REVOLUTION AND THE DECLARATION OF THE RIGHTS OF MEN AND OF THE CITIZEN
2.8.1 BACKGROUND OF THE REVOLUTION
The period from the middle of the 17th century to 1789 in France was called the Old Regime. Government was absolute

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monarchy with no constitution. Society in Old Regime of France was dived into three estates (social groups):
the Catholic clergy, the Nobility, and the bourgeois, petty bourgeois, wage workers and peasant.
The 1st and 2nd estates had more privileges than the 3rd estate, they have more favorable legal position was; paid fewer
taxes than the 3rd estate. Within the 3rd estate, the peasants were the most oppressed of all; paid more taxes than any
other group in relation to their income and they paid feudal dues to lords and the church tax.
2.8.2 CAUSES OF THE FRENCH REVOLUTION
A. Long term Causes: There was increasing criticism in France of absolute monarchy, “despotism.” unjust privileges.
bourgeoisie increased in number and wealth. the bourgeoisie no longer accepted their inferior position
The peasants were also becoming less passive and more dissatisfied with unjust taxation and feudal dues.
B. Immediate Causes: The immediate cause of the Revolution was France’s participation in the American War of
Independence (17778-83). The war led to revolution in two ways.
1. Officers who had served in America retuned to France full of ideas about liberty. French people also wondered
why the French should help to liberate Americans, yet still live under despotism themselves. So there was increased
criticism of the absolute monarchy and this created political crisis.
2.The war was very expensive and resulted in financial crisis for the government. This financial crisis turned into
unmanageable deep economic depression, scarcity of food, high unemployment rate. By 1788 there was no more money
in the Treasury; the government could borrow no more money and the authority if the government was breaking down.
The government was forced to announce a meeting of the sates general.
The representatives of the 3rd estate were the most numerous. On June 17, the 3rd estate passed a resolution. They
declared that, since they represented 96% of the French people, they alone were competent to make a constitution.
ECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN

The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or
contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have
determined to set forth in a solemn declaration the natural, inalienable, and sacred rights of man, in order that this
declaration, being constantly before all the members of the social body, shall remind them continually of their rights and
duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any
moment with the objects and purposes of all political institutions and may thus be more respected; and, lastly, in order that
the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of
the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the
presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:

Article 1: Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general
good.
Article 2: The aim of all political association is the preservation of the natural and imprescriptible rights of man. These
rights are liberty, property, security, and resistance to oppression.
Article 3: The principle of all sovereignty resides essentially in the nation. Nobody nor individual may exercise any
authority which does not proceed directly from the nation.
Article 4: Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural
rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same
rights. These limits can only be determined by law.
Article 5: Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden
by law, and no one may be forced to do anything not provided for by law.
Article 6: Law is the expression of the general will. Every citizen has a right to participate personally, or through his
representative, in its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the
eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities,
and without distinction except that of their virtues and talents.
Article 7: No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by
law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order shall be punished. But any
citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.
Article 8: The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer
punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.

Article 9: As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed

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indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law.
Article 10: No one shall be disquieted on account of his opinions, including his religious views, provided their
manifestation does not disturb the public order established by law.
Article 11: The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen
may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be
defined by law.
Article 12: The security of the rights of man and of the citizen requires public military forces. These forces are, therefore,
established for the good of all and not for the personal advantage of those to whom they shall be in trusted.
Article 13: A common contribution is essential for the maintenance of the public forces and for the cost of administration.
This should be equitably distributed among all the citizens in proportion to their means.
Article 14: All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the
public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment
and of collection and the duration of the taxes.
Article 15: Society has the right to require of every public agent an account of his administration.
Article 16: A society in which the observance of the law is not assured, nor the separation of powers defined, has no
constitution at all.
Article 17: Since property is an inviolable and sacred right, no one shall be deprived thereof except where public
necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been
previously and equitably indemnified.
Declaration of the Rights of Man and of the Citizen, revolutionary manifesto, attached as the preamble to the new
constitution of 1791. The declaration enumerated a number of rights with which “all men” were held to be endowed and
that were described as inalienable. In effect, this revolutionary pronouncement nullified the divine right of kings to rule,
which was the age-old basis of French government.
The Declaration which was influenced by Rousseau, generally, stated that:
1. Men are born free and equal with rights to liberty, property, security, and resistance to oppression.
2. All citizens are entitled to a voice in making the national laws.
3. All persons are guaranteed equality before the law, freedom from unlawful arrest, and freedom of speech, press
and religion.
4. All political authorities come from the people or the principle of popular sovereignty.
5. Laws and taxation must be approved by an elected representative assembly.
6. All members of the nation are equal in rights and duties.
2.8.4 SIGNIFICANCE OF THE FRENCH REVOLUTION
The French Revolution brought about great changes in the society and government of France. It introduced democratic
ideals to France. The French Revolution also proclaimed individual’s democratic rights in its slogan Liberty, Equality,
Fraternity.
Liberty meant freedom for all persons:
From despotism, especially absolute rule and unjust imprisonment;
From unnecessary and unfair economic restrictions;
To influence and change the government;
Of speech, press, religion, and other basic civil liberties.
Equality meant equal treatment for a person:
Before the law;
In business, society, and politics.
Fraternity meant:
The brotherhood of all persons working together to make a better world.

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