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Sources for the Bill of Rights

bill of rights smallTHIS ARTICLE IS UNDER DEVELOPMENT

The purpose of these charts is to present a view of how some historical documents served as sources of our individual liberties as codified in the Bill of Rights.

Inasmuch as the Declaration of Independence, the Constitution, and the Bill of Rights declare the existential nature of individual liberties as part of the body of law upon which our nation rests, they are not the a complete listing of original sources. The rights addressed within the fundamental documents of the United States have an historical basis the result of centuries of struggle, conflict, and reflection...most of which resides within the historical body of English and Colonial political history.

While the following list is not exhaustive, it is extensive and representative. It does not include the great body of correspondence of the Founding era which would be encyclopedic. Nor does it include political works of the age such as John Locke's and others which were impactive. It focuses on specific political/governmental documents between 1215 and 1791 which had an influence on the discussions and thinking involving the adoption of the first ten amendments to the Constitution:

1215 - Magna Carta - The text we provide is an English translation of the Latin. It needs to be appreciated that the Magna Carta introduced the concept of the Rule of law, it was an agreement between the King and his nobles. It was not an instantiation of the rights of citizens, as articulated in the later American Bill of Rights, but rather those of subjects of the King. Additionally, it must be acknowledged that the original charter, as agreed to by King John, was in force only seventeen months before being reissued three times by Henry III. It is the last of Henry III's reissues which we see in English history/statute collections and used inmost legal tracts.

1297 - Confirmatio Cartarum - This document was an attempt to enforce the Magna Carta by declaring judgements rendered contrary to it as null and void. This was an early version of the concept of higher law as later codified by the constitutional concept of judicial review which permits a court to declare acts of government contrary to the Constitution to be null and void and of no legal standing.

1606 - First Charter of Virginia - This charter, issued by James I, established the concept that the rights of an English subject of the King were fully migrated to the Colonies. This idea later morphed into the concept of the rights of an American citizen.This was a significant morphology because in the former, rights percolated from the top down (from King to subject), whereas in the American constitutional model, rights were inalienable and authority percolated from the bottom (citizens) up.

1618 - Ordinances for Virginia - This document is significant because it, for the first time, articulated the principle that American colonists were imbued with the right to participate in the affairs of government via a representative and elected assembly. This was not an idea instantiated by the earlier Virginia charters of 1606 or 1609.

1620 - Mayflower Compact - One of the most important documents of the 16th and 17th century. The Pilgrim's objection to the establishment of a state religion  as exemplified by Elizabeth I and James I in England. The Pilgrims had suffered persecution for their religious beliefs and the Mayflower Compact was a reaction to that persecution and was an early instantiation of the First Amendment inalienable rights of conscience.

1628 - Petition of Right - The Petition of Right introduce significant restrictions upon government by prerogative as practiced by Charles I as violations of individual liberty. It was a Parliamentary presentation of grievances to the King requesting simple observance of existing law as opposed to arbitrary actions by the King. A sample of the grievances range from the quartering of troops in private homes to taxation without the consent of Parliament.

1629 - Charter of Massachusetts Bay - In 1629 Parliament was dissolved by Charles I who then proceeded to rule as a tyrant for more than a decade. This caused a titanic battle for control of the English government and an attendant ignoring of the colonies. This lack of attention to the colonies allowed colonization to proceed at a rapid rate and for the colonies to develop novel, compared to the mother country, forms of government and policies, many of which were unauthorized. This document reflects the dramatic step, as a consequence of the Cambridge Agreement, that control of the Massachusetts Bay Company would be transferred to the emigres of the colony rather than remaining in London.

1632 - Charter of Maryland - This charter was significant in that it required its laws conform to those in England and created the third self-governing body in the colonies.

1639 - Fundamental Orders of Connecticut - While James Bryce thought that the Fundamental Orders of Connecticut was the oldest truly political Constitution in America it embodied little that was new or novel. Its main claim is that it transferred the corporate organization of the trading company to a document approved by the people's representatives for the organization of political government.

1641 - The Abolition of the Star Chamber - When the English Parliament abolished the Court of Star Chamber it affirmed the principles of due process of law as established by the Magna Carta. This act removed the administration of justice from this executive tribunal and established the ordinary courts of law as the rightful guardians of liberties. Additionally, the abolition paved the way for the emergence of the privilege/right against self-incrimination.

1641 - Massachusetts Body of Liberties - These exemplified how American colonial concepts of individual liberties emerged during the period. Colonial lawmakers expanded the concepts of the Magna Carta and English common law and combined them with the principles of Puritan theology and their local experiences and needs. The Body of Liberties embodies the concept that fundamental laws ought be embodied an a written form which has the assent of the people and places limitations on the powers of executives and judges,

1663 - Charter of Rhode Island - Religious freedom first became a component of fundamental colonial law in Rhode Island as part of this charter granted by Charles II. However, the charter affirmed the right as it had emerged in the colony thru the works of Roger Sherman, rather than breaking new ground.

1677 - Concessions and Agreements of West New Jersey - This document, likely authored by William Penn, embodied many principles of civil government held by the Quakers. Interestingly, the document contains a clause which declared that it should be considered as the fundamental law of the colony which could not be modified by the legislature. It secured freedom of conscience, guaranteed trial by jury, and debtors prison abolished. Additionally, the colonial proprietors reserved no special powers unto themselves.

1679 - Habeas Corpus Act - A writ of habeas corpus is a procedure for bringing prisoners before a court for the purpose of inquiring into the legality of their detainment or imprisonment, first codified by the Magna Carta. However it wasn't until the seventeenth century until a series of statutes solidified this right. The Habeas Corpus Act of 1679 was the most important of these statutes.

1682 - Frame of Government of Pennsylvania - William Penn authored several frames of government which seeded some Quaker ideas of government amongst the colonies. This work reflected Penn's view that government itself is of divine origin and inherent in its purpose is to curb criminality and protect law abiding citizens. To accomplish these ends Penn's solution was to establish the principle of the rule of law and to enable lawmaking power by the people.

1689 - The English Bill of Rights - Enacted on December 16, 1689, it established, in statutory form, the provisions of the Declaration of Right agreed to in Parliament on February 12, 1689.

1701 - The Pennsylvania Charter of Privileges - William Penn had received information that Parliament was said to be considering a bill to abolish all proprietary colonial governments, including his own. The council resolved to consider the Markham framework and the Frame of Government of 1683 and adopt the best of each and eliminate the worst. The result of that activity was to be presented to Penn for approval. The debate spanned several months with the result being that the Frame of Government of 1683 was abolished and the this charter of privileges issued in its place.

1765 - Resolutions of the Stamp Act Congress - The movement toward independence began long before its declaration in 1776. The perceived indifference of the Crown and Parliament, to American needs, pushed the colonists toward indifference to the problems confronting the British Empire. The average colonist was acutely award of their rights as a British subject, yet simultaneously unconcerned with the duties demanded of that status. The Stamp Act, being a direct tax, came at a time of a shortage of money in the colonies because of the high degree of barter in the colonial economic model. Accordingly, the Stamp Act was wholly unsuited to then extant colonial conditions, which resulted in the first act of opposition to it at the annual meeting of the the town of Boston on May 24, 1764. Hostility to the Stamp Act was so visceral that its enforcement proved virtually impossible. The act was repealed on March 18, 1766 after having been in effect for only four months and never enforced.

1774 - Declaration and Resolves of the First Continental Congress - Repeal of the Stamp Act in 1766 provided only temporary relief to colonial taxation by Parliament. The Declaratory Act stated Parliament's intent to assert its full powers of sovereignty with regard to colonial matters. These oppressive measures were resisted by the colonists. These declarations were likely the most significant statement of colonial views of individual liberty  prior to the final break with England.

1775 - The Declaration of the Causes and Necessity of Taking Up Arms - Prior to hostilities commencing at Lexington on April 19, 1775, a significant number of Americans desired reconciliation as opposed to conflict with England. This Declaration, while holding out hope of a peaceful solution, approved force to obtain British recognition of colonial rights.This declaration stood mid-way  between the Declaration and Resolves of the First Continental Congress and the Declaration of Independence.

1776 - The Virginia Bill of Rights - The Virginia Bill of Rights was drafted by George Mason and presented to the Virginia Convention on May 27. The body of that constitution was prefaced with a preamble, prepared by Thomas Jefferson, setting forth the grievances of the colonies against George III.It also contained statement of general political philosophy and clauses establishing specific individual rights. That listing was similar to those found in the English Bill of Rights.

1776 - The Declaration of Independence -

1776 - 1777 - The various Declarations or Bills of Rights, adopted before the Constitution by Pennsylvania, Deleware, Maryland, North Carolina, Vermont, Massachusetts, and New Hampshire. -

1787 - The Northwest Ordinance -

The following graph compares the rights as articulated in the Bill of Rights with those contained in the other nine documents.

Content of Bill of Rights

Magna Carta
1215
English Petition of Rights
1628
Massachusetts
Body of Liberties
1641
Charter of
Connecticut
1662
Charter of Rhode Island 1663English Bill of Rights
1689
New Jersey Concessions

New York Privileges
1691

Pennsylvania
Frame of Gov't
1682

U.S. Bill of Rights
1791
 No Established Religion/Favored Sect  *
 Rights of Conscience/ Free Exercise*  **
***
 Freedom of Speech*
 *
 Freedom of Press **
 Freedom of Assembly **
 *
 Freedom of Petition **
 * *  *    *
 Keep and Bear Arms/Militia    * * *    *
Quartering of Troops  *    *  *  *
 Double Jeopardy   *       *
 Self-Incrimination   *      *
 Due Process * * **
*
 * **
 *
 Takings/Just Compensation *  *      *
 No Excessive Bail/Fines*
*
 **
 **
 * *
No Cruel/Unusual Punishment * * * * * * *
 No Unreasonable Search/Seizures *
 Speedy/Public Trial in Criminal Cases *      *  * *
 Nature of Accusation  *
    *  * *
 Confrontation of Accusers *  *    *  * *
 Compulsory Witnesses  *
       *
 Assistance of Counsel  *
      *
 Rights Retained by People         *
 $ Limitation on Appeals          *
 Common Law and Jury Trial ***   ****
 Local Impartial Jury for all Crimes ***    * * * *
 Grand Jury for Loss of Life or Limb        **
 *
 Reservation of Non Delegated Powers         *
 Totals9
71665678826

 

This graph provides a pictorial comparison of the rights articulated in the various documents.

 comparative rights