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The English Sources of the Bill of Rights

In response to:

Our Timeless, Timely Constitution from the April 20, 2017 issue

To the Editors:

In his—as always—thought-provoking review of Akhil Reed Amar’s essays on the US Constitution [NYR, April 20], Jeremy Waldron suggests the possibility of reading the Fourth Amendment disjunctively, so as to permit warrantless searches so long as these are reasonable—something only capable of being decided ex post facto.

The movers of the amendment will have been well aware that in 1765 the English Court of Common Pleas, in the celebrated case of Entick v. Carrington, had upheld verdicts against the king’s officers for trespass to land and goods on two separate grounds. One was the invalidity of a search warrant issued by a minister of the crown rather than a magistrate or judge. The other was the extent of the warrant, which purported to authorize the seizure not simply of incriminating materials but of all Entick’s books and papers—an unreasonable search, in other words, even assuming a valid warrant. The requirement that a search warrant be specific in its scope has always, in consequence, been regarded in English law as essential to the reasonableness of a lawful search.

Professor Waldron mentions the English Bill of Rights of 1689 as a precursor of the constitutional bar on cruel and unusual punishments. But official history has airbrushed a more relevant English precursor: the Instrument of Government, which in 1653 created the office of lord protector, naming its first incumbent as Oliver Cromwell and setting up a short-lived republican constitution—Britain’s first and only such document—which in several respects foreshadowed the American presidential model of government.

Little attention has been paid to the two-way migration of radicals in the mid-seventeenth century between the American colonies and England. Governor Winthrop’s journal for 1645 records the departure for England of four Massachusetts Bay settlers to fight for Parliament in the Civil War. One of them was Thomas Rainborough, who famously intervened in the Putney debates between the Levellers and the Army commanders in 1647 to assert: “The poorest he that is in England hath a life to live as the greatest he…. Every man that is to live under a government ought first by his own consent to put himself under that government.”

Rainborough, a brave and resourceful military commander, was killed, but his brother William, who saw the Civil War out, returned to the colony, as others of the settlers had already done. It may not be wholly fanciful to suppose that some of the ideas of the English republic returned with them.

Sir Stephen Sedley
Faculty of Law
Oxford University
Oxford, England