Bills of Rights
a name for those parts of written constitutions or of codes of laws that especially guard the individual against abuse of power by the government. In English history, such documents go far back. Magna Carta in 1215 contained such provisions. The Petition of Right in 1628 extended the list and defined it more clearly. But the English document of most note in this respect was the fruit of the Glorious Revolution of 1688. In that year the tyranny of James II cost him his throne. Then a revolutionary convention-a sort of irregular parliament-drew up a Declaration of Rights (to prevent the repetition of such tyranny), and offered the crown to William and Mary if those candidates for the throne would first solemnly assent to the Declaration. This they did; and a few months later, in 1689, a Parliament in regular session reenacted the Declaration as a formal law, known as The Bill of Rights.
These three great documents,-Magna Carta, Petition of Rights, and Bill of Rights,-constitute, in the words of William Pitt, "the Bible of English Liberty." All three contain many provisons of a general political nature, not pertaining merely to a bill of rights, in the modern sense; but they also affirm and reiterate for every Englishman the following rights:
Habeas corpus privileges.
Jury trial, if accused of crime.
Exemption, in case of conviction, from excessive fines, and from cruel or unusual punishments.
Freedom from billeting of soldiery upon him in time of peace.
Quiet possession of his property, unless deprived of it by due process of law.
The right to bear arms in his own defense.
The right to petition the government at any time for redress of grievances.
All these English documents had been called forth by specific acts of tyranny, and in every case they sought to prevent the recurrence of some concrete evil. They had made no attempt to cover the whole field of civil liberty; and indeed there were many important principles of liberty known to the English common law which were not included in these written laws, as, for illustration, the principle that an Englishman's house is "his castle," into which even the officer of the law may not enter, against the owner's will, except upon a special warrant and cause shown.
Meantime English colonists in America had already begun the development of similar documents. The first written code of laws in Massachusetts, in 1641, was formally entitled "The Body of Liberties," and it put great stress upon the rights of the individual citizen. Some even more liberal features were found in the one earlier American code,--that of Plymouth in 1636. These codes, indeed, made some advance upon the written English law of the day, providing, for instance, for the privilege of an accused man to challenge suspected jurors, both "for cause" and "peremptorily."
The Stamp Act Congress of 1765 and the Continental Congress of 1774 passed Declarations of the rights of the colonists; but these papers referred for the most part to public, or political, rights; and, moreover, they were merely expressions of opinion, not attempts to make new law. The next real advance came in June of 1776, when Virginia adopted the first independent state constitution in America. The introduction to that document is a "Bill of Rights" (expressly so named after English example) of seventeen paragraphs, drawn by George Mason. It contains all the English provisions mentioned above, and it expands some of them. Thus, to the usual provision for jury trial in criminal cases are added requirements that the jury shall come from the "vicinage," or neighborhood (so as to prevent such tyranny as the English government had just been attempting in carrying Americans to England for trial), and that the accused man may summon witnesses and examine his accusers.
Other provisions also had been suggested by recent troubles in the colonies, --such as the prohibition of "general" search warrants ("writs of assistance"), and the claim for freedom of the press and for freedom of religion. But the Virginia Bill of Rights introduced another element also, wholly unknown to the English documents of this nature. Nearly half the Virginia document is given to the statement of general principles, drawn indeed from English literature and from English and American political discussion, but never before incorporated in a constitutional document. (The common claim that these statements of principle came from French writers lacks evidence, and it is needless, since such expressions had been familiar in England for a century and a half.) Among these statements in the Virginia Bill of Rights are the assertions that all authority is derived from the people; that all officers therefore are responsible to the people; that the people retain the right to change the form of government at will, and must do so from time to time to prevent decay. Perhaps the most notable passage is the opening paragraph:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and obtaining happiness and safety.
Within the next few years the other twelve states of the Union adopted written constitutions (most of them within a few months), and the majority of them adopted also Bills of Rights based more or less directly upon the Virginia draft. Such Bills of Rights, too, with greater elaboration, are found in nearly all our later state constitutions.
The first constitution of our central government, the Articles of Confederation, had no provisions of this nature (applying as it did mainly to states and not to individuals). In the Federal Convention of 1789 George Mason and one or two other delegates urged earnestly that a Bill of Rights should be incorporated in the new constitution there drawn up; but the proposal was rejected. The constitution did contain a few provisions such as would have properly belonged in a Bill of Rights; namely the prohibition of ex-postfacto laws and of bills of attainder, and the advanced and liberal definition of treason. The more democratic portion of the people, however, were exceedingly dissatisfied; in state after state, the ratifying conventions called for the addition of such articles; and, almost as soon as the government was in operation, the omission was remedied by the adoption of the first ten amendments, which are commonly and properly known as our national Bill of Rights.
These amendments cover all the specific provisions of the old English Bills and most of the later ones introduced into American state constitutions up to that time. Neither the amendments nor the body of the national constitution, however, contain in any measure whatever the other element introduced into the state Bills of Rights,--the assertion of great fundamental principles. This lack, so far as it is a lack, is supplied efficiently by the popular reverence for the passages of this nature in the Declaration of Independence. It is worth while to compare closely the opening statement of that document with the opening of the Virginia Bill of Rights (quoted above) of a few weeks earlier, and to note the superior expression and better thought of the national instrument. Happy indeed it is that to Thomas Jefferson fell the opportunity to pen that great Declaration, and to make it speak with convincing eloquence (as probably no other man of his day could have done) those prophetic truths of liberty and democracy which ever since have directed the destiny of the Western World.
These general principles had already appeared in France, in the writings of Rousseau; and, some fifteen years after the Virginia Bill of Rights and the American Declaration, the National Assembly of the French revolutionary period adopted its famous "Declaration of the Rights of Man." Like all subsequent French documents of this nature, that Declaration comprised only these abstract principles,--stated in noble but very extreme form,--ignoring altogether those concrete rights won by long struggles, upon which had been based all the English and American Bills of Rights.--WILLIS M. WEST, University of Minnesota.
