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In the 1750s and 1760s the natural or God-given unalienable rights of the citizens of the Thirteen Colonies in America were protected by English documents that, in the case of the Magna Carta, were more than 550 years old. The Magna Carta, written in 1215 AD limited the power of the kings of England. At the time King John was so disliked that he became the subject of many plays, including Wm. Shakespeare's "The Life and Death of King John."[1]
Winston Churchill said of King John's reign:
"When the long tally is added, it will be seen that the British nation and the English-speaking world owe far more to the vices of John than to the labors of virtuous sovereigns".
John's loss of British power, property and prestige, his personal immoral behavior, his religious battles with the Pope and his excommunication, and, finally, his doubling of heavy taxation to pay for a series of wars finally prompted the English barons to meet, write the Magna Carta limiting the king's power and insist that King John sign it.
However, it had taken many years of tyranny before the barons took action. That reluctance to defend liberty was evident centuries later when Thomas Jefferson wrote in the Declaration of Independence: "All experience hath shown that mankind is more disposed to suffer while evils are sufferable than to right themselves by altering forms to which they are accustomed."[2] The Magna Carta begins by defining the reason it was written:
"Know that Before God, for the health of our soul and those of our ancestors and heirs, to the honor of God the exaltation of the holy Church and the better ordering of our kingdom, at the advice of our reverend fathers... that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. "
It required King John to "at once restore to any man" he had "deprived or disposed of lands, castles, liberties or rights, without lawful judgment of his equals." It also prohibited government officials from taking "movable goods from citizens. "
The second English document that was known to the founding fathers was England's Habeas Corpus Act[3], which was passed by the English parliament in 1679 due to public pressure to end a practice of false arrests without legal authority.[4] When the US Constitution was adopted 112 years later, Habeas Corpus protection became what was included in Article 1 Section 9 Clause 2[5].The third English document the founding fathers had access to was the 1689[6] English Bill of Rights that listed thirteen "ancient rights and liberties" that were being denied the Americans a century later by King George III and the parliament in London.
The rights listed included freedom of speech, the King's orders without the consent of parliament being invalid, freedom of religion, the king spending money without parliament's approval being invalid, that citizens had the right to petition the king. The English Bill of Rights also stated that the king did not have the right to keep a standing in army in the colonies, disarm its citizens, inflict cruel and unusual punishment, or convict people of a crime without a "duly impaneled jury" or to levy fines on persons before conviction.
In 1761 those rights were denied when the British parliament began issuing "Writs of Assistance" in the Colonies that authorized the police or British soldiers to indiscriminately search people's homes. James Otis[7] argued against the Writs, by stating that an "Englishman's home is his castle" and that arbitrary searches were "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English lawbook." [8]
On October 14, 1774, the First Continental Congress passed the Declaration and Resolves[9] which was drafted and introduced by John Sullivan[10], delegate from New Hampshire. Sullivan later became a General in the Revolution. Sullivan wrote that the "The good people of the several colonies" were " justly alarmed at these arbitrary proceedings of parliament and administration" and had "elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted."
After proclaiming that "the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts" have the following RIGHTS," Sullivan described them as:
1. They are entitled to life, liberty and property and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.
2. Our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
3. That by such emigration they by no means forfeited, surrendered, or lost any of those right.
4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures.
5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
7. That these, his Majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.
8. That they have a right to peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.
9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.
10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous and destructive to the freedom of American legislation.
In effect, John Sullivan described a government, which he and others believed, was totally out of touch with its citizens, had serious economic problems because of the Seven Year War that had begun with the French and Indian War in the 1750s and was ignoring the rights Englishmen had enjoyed for hundreds of years by 1774.
On June 12, 1776 the Virginia Declaration of Rights[11] was adopted. It was written by George Mason,[12] a member of the Virginia Convention who had agreed to take George Washington's place when Washington became commander in chief of the new Continental army.
After the eight years of the Revolution, which ended in 1783, it soon became clear that the Articles of Confederation were not working and in 1789, after the U.S Constitution was adopted, many American citizens wanted those rights clearly identified in the U.S. Constitution. One of those, who was concerned, was George Mason who refused to support the Constitution when it passed, because it lacked a bill or rights and created a strong federal system.
In his First Inaugural address[13] on April 30, 1789, George Washington appealed for unity, reminding Americans that their happiness and the prosperity of the nation was in their hands and depended on order and righteousness:
"There is no truth more thoroughly established, than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity: Since we ought to be no less persuaded that the propitious smiles of Heaven, can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained: And since the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people."
Washington noted that the new Constitution made it "the duty of the President to recommend to your consideration, such measures as he shall judge necessary and expedient" and that Article V of the Constitution gave Congress the authority, with a two-thirds majority, to amend the Constitution. Washington, referring to the widespread discontent among the new nation's electorate, then gently recommended that the Congress consider "the nature of objections which have been urged against the system or by the degree of inquietude which has given birth to them." He then left it to members of the congress to resolve the matter with "your discernment and pursuit of the public good."
Two months later, on June 8, 1789 James Madison, who is often called the Father of the Constitution, introduced the subject of adding amendments to the brand new Constitution[14] stating:
"This day, Mr. Speaker, is the day assigned for taking into consideration the subject of amendments to the constitution. As I considered myself bound in honor and in duty to do what I have done on this subject, I shall proceed to bring the amendments before you as soon as possible, and advocate them until they shall be finally adopted or rejected by a constitutional majority of this House."
The Bill of Rights was finally adopted on December 15, 1791 after considerable and sometimes heated debate between the federalists, who wanted a strong presidency and the anti-federalists, like George Mason who would not support the Constitution as written and thought the president had too much power.
Two years later on December 15, 1791 the Bill of Rights[15] was added to the US Constitution by the new Congress.
[1] http://shakespeare.mit.edu/john/john.1.1.html - The Life and Death of King John - Shakespeare
[2] http://www.constitution.org/usdeclar.htm - Declaration of Independence
[3] http://www.constitution.org/eng/habcorpa.htm - Habeas Corpus Act of 1679
[4] http://www.lectlaw.com/def/h001.htm - Legal Definition of Habeas Corpus
[5] http://topics.law.cornell.edu/constitution/articlei#section9 - Article 1 Sec 9 US Constitution Writs of Assistance
[8]http://en.wikipedia.org/wiki/Writ_of_assistance - Writs of Assistence
[9] http://avalon.law.yale.edu/18th_century/resolves.asp - Declaration and Resolves
[10] http://en.wikipedia.org/wiki/John_Sullivan - John Sullivan - bio
[11] http://avalon.law.yale.edu/18th_century/virginia.asp - Virginia Declaration of Rights
[12] http://www.gunstonhall.org/georgemason/ - George Mason
[13] http://www.archives.gov/exhibits/american_originals/inaugtxt.html - George Washington's 1st Inaugural Address
[14] http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=221 - James Madison on introducing a Bill of Rights to the Constitution 1789 - Pages 449-452
[15] http://www.archives.gov/exhibits/charters/bill_of_rights.html - The Bill of Rights - December 15, 1791
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Mary Mostert has written articles on political and social issues for more than 60 years, including a weekly newspaper column for Gannett Newspapers. She has written four books, including books on the Declaration of Independence and US Constitution. Her e-mail is mary@bannerofliberty.com and website is http://www.bannerofliberty.com
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