Sparks Commentary: 5 surprising ways that the Congress was modeled on the British Parliament

“... in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A. D. 1215, in the great charter granted by that prince … And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III : there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament.”

– William Blackstone’s “Commentaries on the Laws of England” (1765), Book 1, Chapter 2

There's more similarity between the Congress and the Parliament than meets the eye …

In both big and small ways, the Congress was modeled on the Parliament of Great Britain. In bigger ways, it is a legislative body that is kept separate from the other branches. It is even divided into two houses, with only the lower house having the ability to “originate” taxing bills. And originally, only the lower house was elected – although both houses of our Congress are now directly elected by the people. But it is not just these ways in which these two legislative bodies are similar – they are also similar in many smaller ways, and in many finer details. You might be surprised at what some of these “details” actually are, so it might be helpful to look at a few of them here. I will be using Sir William Blackstone's “Commentaries on the Laws of England” as a source throughout, since Alexander Hamilton used it as a source in the Federalist Papers. (All quotations from Blackstone's “Commentaries” in this particular post are from Book 1, Chapter 2. Therefore, I will not note this every time.)

Sir William Blackstone

1) Qualifications for members of the House of Commons (and both houses of Congress)

For the House of Commons, William Blackstone said that the members of Parliament “must not be aliens born, or minors,” nor persons “attainted of treason or felony, for they are unfit to sit any where” (Source: Blackstone’s “Commentaries”). He also said that “in strictness, all members ought to be inhabitants of the places for which they are chosen : but this is entirely disregarded.” (Source: Blackstone’s “Commentaries”) Nonetheless, this still influenced the United States Constitution, which said that “No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” (Source: Article 1, Section 2, Paragraph 2) Similar restrictions apply to the Senate, because the Constitution also said that “No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.” (Source: Article 1, Section 3, Paragraph 3) Thus, both countries had some minimum qualifications for the members of the legislature, even if the details of these would differ in some respects. (It is also important to understand this point: There is nothing in the original Constitution that disqualifies persons “attainted of treason or felony.” However, there is something in the Fourteenth Amendment that does – at least under certain conditions. See the footnote to this blog post for the details.)

United States Congress

2) Members of both houses must swear “oaths of allegiance” in both countries

On a more positive note, Blackstone noted that “no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration” (Source: Blackstone’s “Commentaries”). This would influence the United States Constitution, which said that “The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Source: Article 6, Section 3) Thus, both countries require the members of their legislatures to swear an “oath of allegiance” before taking office.

Capitol Dome

3) Executive had veto power over legislature (although it could not be overridden for them)

Blackstone also noted that the king had a veto power over the legislature. Specifically, he said that “the king is himself a part of the parliament : and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving ; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done [footnote]. The crown cannot begin of itself any alterations in the present established law ; but it may approve or disapprove of the alterations suggested and consented to by the two houses.” (Source: Blackstone’s “Commentaries”) This would influence the United States Constitution, which gave its president a similar veto power over the actions of the legislature. However, the king’s veto power could not be overridden, while the president’s veto power could be. (See Article 1, Section 7, Paragraphs 2 & 3.) When the Americans later declared independence from Britain, they included a long list of grievances against the king as part of their “Declaration of Independence.” The very first item on that list was actually the king's use of veto power. In the words of that Declaration, King George III had “refused his assent to laws, the most wholesome and necessary for the public good.” (Source: The Declaration of Independence, July 4th, 1776) It might thus seem ironic that the president was later granted a similar veto power in the Constitution, but it is important to remember that the president's veto power could actually be overridden. The king's veto power could not be.

Sir William Blackstone

(One difference: Parliament was entirely dependent upon the king for its ability to meet … )

There was one crucial difference that I might note here, which was that at this time, the Parliament was entirely dependent upon the king for their ability to meet. As Blackstone noted, “It is a branch of the royal prerogative, that no parliament can be convened by its own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason,” he claimed. For, “supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting” (Source: Blackstone’s “Commentaries”). The Founding Fathers departed from this reasoning in one respect, by allowing the Congress to meet without the president’s consent at most times. They even made it so that the president’s veto power could not be used against an adjournment bill. (See Article 1, Section 7, Paragraph 3.) However, they also allowed a few exceptions to this, by saying that the president “may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper” (Source: Article 2, Section 3). If the two houses cannot “agree unanimously” upon the proper time and place of meeting, in short, the president is thus allowed to make the decision for them. This speeds up the process somewhat, at the times when the Congress is moving too slowly.

Parliament of Great Britain

4) Neither legislature allowed members to hold double offices paid for by the executive

Members of Parliament were also prohibited from holding double offices that were paid for by the king. In Blackstone’s words, “nor any persons that hold any new office under the crown created since 1705, are capable of being elected members. 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. 7. That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void ; but such member is capable of being re-elected.” (Source: Blackstone’s “Commentaries”) This influenced the United States Constitution, which said that “No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office.” (Source: Article 1, Section 6, Paragraph 2) Thus, both countries placed some limits on the extent to which the executive branch could influence the legislature.

United States Capitol shot

5) Neither executive could arrest members of the legislature while it was in session (normally)

The king was also usually prohibited from arresting members of Parliament while it was in session. For example, the English Bill of Rights (passed 1689) declared that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” (Source: English Bill of Rights 1689) Blackstone noted another such tradition as well. I quote from him now: “Neither can any members of either house be arrested and taken into custody, nor served with any process of the courts of law ; nor can his menial servants be arrested ; nor can any entry be made on his lands ; nor can his goods be distreined or seized ; without a breach of the privilege of parliament. These privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person.” (Source: Blackstone’s “Commentaries”) But Blackstone noted that “this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace [footnote] ; or rather perhaps in such crimes for which surety of the peace may be required.” (Source: Blackstone’s “Commentaries”) This influenced the United States Constitution, which said that the Senators and Representatives “shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.” (Source: Article 1, Section 6, Paragraph 1) This also showed the influence of the aforementioned provision in the English Bill of Rights, passed in 1689.

Statue of Sir William Blackstone

Conclusion: The British Parliament was the main model for the United States Congress

Thus, in many ways (great and small), the British Parliament was a model for the United States Congress. The traditions reported by Blackstone often found their way into the United States Constitution, in the ways noted here. They are no longer just unwritten traditions, because the Founding Fathers wrote them down on paper – or, as they might have put it, on parchment. There were many other models for the United States Congress, of course, and the Founding Fathers were influenced by many other governments (including their own state legislatures). But the British Parliament was the primary model for the United States Congress. Furthermore, the primary source of information about it – for the Founding Fathers, at least – may have been Sir William Blackstone’s “Commentaries on the Laws of England,” the document that I have been quoting from so extensively in this post.

Footnote: Disqualification of people “attainted of treason”

As I mentioned earlier in this post, it is important to understand one point about the qualifications for Congress: There was nothing in the original Constitution to disqualify any of those people “attainted of treason or felony.” However, there is something in the Fourteenth Amendment that does disqualify them, at least under certain conditions. Since I did not give its text earlier, I will quote from the relevant portion of the amendment below:

“No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (Source: Fourteenth Amendment, Section 3)

When this amendment was first passed in 1868 (after the Civil War), this section's immediate purpose was to bar former Confederates from holding office; at least for a time. Congress did indeed, “by a two-thirds vote of each House, remove such disability” for many former Confederates later on; but not for all of them. Some, like the former Confederate president Jefferson Davis, continued to be barred for life; and I know of at least one case where someone besides a former Confederate was thus barred. (See the Wikipedia page on Victor L. Berger for details.)

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