Thursday, June 7, 2018

The Petition of Right influenced the United States Bill of Rights



“The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.”

 John Jay, in the Federalist Papers (Federalist No. 5)

It sounds ironic to say it now, but a number of the Founding Fathers of the United States were actually against including a “Bill of Rights” within our Constitution. Some of them thought that it would be dangerous to do so, because they argued that any right not listed there would be construed “not to be protected” by the Constitution. They were partially wrong on this score, of course, and it would fall to other Founding Fathers to make sure that a “Bill of Rights” was later passed. But this early objection to the “Bill of Rights” may have been the reason that it eventually included a Ninth Amendment when it was passed, which said that “The enumeration [or “listing”] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (In other words, just because a right isn't listed in the Constitution, doesn't mean it's not a right.) This addressed the concern of those Founding Fathers who had objected to a bill of rights because of this.


Parliament of England

Some Founding Fathers were against having a “bill of rights” in the Constitution …

Nonetheless, when Alexander Hamilton listed examples of a “bill of rights” in one of the Federalist Papers, he was not endorsing them, but slamming them. He was holding them up as bad examples which should be avoided to avert danger from having a “comprehensive” list. Specifically, Hamilton said that “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.” (Source: Federalist No. 84)


Alexander Hamilton

… while others were for it

Other Founding Fathers disagreed, and held them up as models of good laws that should be emulated to protect rights. Because of their well-deserved popularity, these laws had a great influence on the first ten amendments to the Constitution (the amendments that later became known as our “Bill of Rights”). They are thus deserving of our attention despite Hamilton's objections to them, and were positive influences on our Constitution once the “Bill of Rights” was passed. I plan to cover all of these documents in this series (plus a few others); but in this post, I shall focus exclusively on the “Petition of Right,” written by Sir Edward Coke. Two decades before King Charles the First was beheaded in the English Civil War, he was forced to sign this document. (And he wasn't too happy about signing it … )


Petition of Right, 1628



Sir Edward Coke wrote the famous “Petition of Right” (which was adopted in 1628)

Sir Edward Coke would later have a great influence on our Founding Fathers, in both theory and practice. His last name is spelled C-o-k-e, but it is pronounced “Cook” like one who prepares food. As far as theories go, he is best known for having written the massive “Institutes on the Lawes of England,” a legal work that would have a great influence on the Founding Fathers and the United States Constitution. I shall quote from a part of it in this post. But as far as practical things go, he was actually elected to the House of Commons, and even became its Speaker. One of the acts of Parliament which he wrote was the “Petition of Right,” which set out some specific liberties of the subject that the king was prohibited from infringing. This is not the sort of document that kings like to sign, of course, but the king discovered that the Parliament wouldn't grant him any money for his war effort unless he agreed to sign it. Thus, as Hamilton noted; it was thus “assented to by Charles I., in the beginning of his reign” (Source: Federalist No. 84). This was some 20 years before Oliver Cromwell had the king beheaded, in the ongoing turmoil of the English Civil War. The “Petition of Right” is actually one of the founding documents of the British Constitution, I might add here. With some revisions, it still remains in force in the United Kingdom today.


Sir Edward Coke

In the United States Constitution, the Petition of Right influenced the Third Amendment …

The Petition of Right complained that “great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm” (Source: Section VI). Thus, the Parliament “humbly pray[ed]” King Charles the First to “remove the said soldiers and mariners, [so] that your people may not be so burdened in time to come” (Source: Section X). This influenced the United States Bill of Rights, which said that “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” (Source: Third Amendment to the Constitution).


King Charles the First

… the Fifth Amendment …

The Petition of Right also echoed the earlier re-issuings of Magna Carta by saying that “no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law.” (Source: Section IV) But they noted that his Majesty, King Charles the First, had not been following these statutes (Source: Section V). Thus, they petitioned that “no freeman, in any such manner as is before mentioned, be imprisoned or detained” (Source: Section X). Along with the earlier Magna Carta, this may have influenced the United States Bill of Rights, which said that no person shall be “deprived of life, liberty, or property, without due process of law” (Source: Fifth Amendment). It also may have influenced the later Fourteenth Amendment, which said that “nor shall any State deprive any person of life, liberty, or property, without due process of law” (Source: Section 1 of the amendment).


Sir Edward Coke

… and the Sixth and Seventh Amendments

And finally, the Petition of Right also complained that King Charles the First had given certain persons “power and authority to proceed within the land, according to the justice of martial law,” by which authority they could “proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial” (Source: Section VII). The Parliament was not very happy about these tactics, so they thus asked that “the aforesaid commissions … be revoked and annulled,” and that “hereafter no commissions of like nature may issue forth,” lest his Majesty's subjects be “destroyed or put to death contrary to the laws and franchise of the land.” (Source: Section X) This may have influenced the parts of the United States Bill of Rights about fair trials, such as how “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial” (Source: Sixth Amendment), and how “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved” (Source: Seventh Amendment). In his work the "Institutes of the Lawes of England," Sir Edward Coke was interpreting the “Magna Carta,” with regards to this subject; since the Magna Carta seems to have had some influence of its own here. The United States Supreme Court actually referenced Lord Coke's analysis of Magna Carta in 1967, as an influence on the Sixth Amendment clause quoted here. (Source: Klopfer v. North Carolina)


Sir Edward Coke

Mr. Coke's doctrine that “a man's home is his castle” also influenced the Fourth Amendment

Sir Edward Coke also influenced the Constitution via some other writings about the common law. In the “Third Part of his Institutes of the Lawes of England” (commonly called the “Third Institutes”), he said that “A man's home is his castle – for where shall he be safe if it not be in his house?” He believed that warrants based on the mere suspicion of crime violated the Magna Carta. He was also the first to use the famous phrase that “A man's home is his castle,” which is a commonly used saying in the English language. This may have influenced the part of the Constitution about search and seizure. The relevant portion said that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Source: Fourth Amendment) Sir Edward Coke also reported a legal decision from 1604 known as Semayne's Case, and described it as saying that “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” (Source: Semayne's Case) Thus the “castle doctrine” found its way into British common law – and eventually, as I noted earlier, into the United States Constitution.


Sir Edward Coke

Conclusion: The “Petition of Right” was a major influence on the Constitution

The influence of Sir Edward Coke's “Institutes of the Lawes of England” may be comparable to that of works by Locke or Montesquieu or Blackstone. It had a tremendous effect on the Founding Fathers and the Constitutional Convention. But Lord Coke's influence is not limited entirely to his legal theories – he was also a very practical man that wrote a major part of the mother country's Constitution. His “Petition of Right” is right up there with the Magna Carta, in my opinion, in its influence on the United States Constitution. It's one of the forgotten gems of our British heritage.

Footnote to this blog post:

Among other things, Sir Edward Coke also wrote parts of the Virginia Charter of 1606 (sometimes called the First Charter of Virginia), which granted certain rights to any British subjects that would settle in the Virginia colonies. The following year in 1607, the English made landfall in Jamestown, Virginia, where they would establish their first permanent settlement anywhere in the Americas. This “First Charter of Virginia” was later amended by the Second Charter in 1609, and the “London Company” that was created by this first charter actually went defunct in 1624. Nonetheless, Americans rightly interpreted these charters to mean that all British subjects born in the American colonies would have the same rights and liberties as though they had been born in England.

The British would forget parts of this during the American Revolution, as most of my countrymen well know. But Sir Edward Coke was nonetheless entirely correct in this, and helped to extend these essential rights to Americans.



Jamestown Church, where the first laws in America were made

Full text of the “Petition of Right” at the website of George Mason University

If you liked this post, you might also like:

King John and the Magna Carta

King Charles the First and Oliver Cromwell

The Massachusetts Body of Liberties

The Habeas Corpus Act and the English Bill of Rights

The Virginia Declaration of Rights

Part of a series about the
U. S. Constitution

Introduction

Influences on the Constitution

Hobbes and Locke
Public and private property
Criticisms of social contract theory
Responses to the criticisms
Magna Carta
Sir Edward Coke
Fundamental Orders of Connecticut
Massachusetts Body of Liberties
Sir William Blackstone
Virginia Declaration of Rights
The Declaration of Independence (1776)
Representative government
Polybius
Baron de Montesquieu
Articles of Confederation

The Constitution itself, and the story behind it

Convention at Philadelphia
States' rights
The Congress
Congress versus the president
Powers of Congress
Elected officials
Frequency of elections
Representation
Indigenous policies
Slavery
The presidency
Impeachment and removal
The courts
Amendment process

Debates over the Constitution, then and since

Debates over ratification
The "Federalist Papers"
Who is "Publius"?
Debates over checks & balances
The Bill of Rights
Policies on religion
Freedom of speech and press
Right to bear arms
Rights to fair trial
Rights of the accused
Congressional pay
Abolishing slavery
Backup plans
Voting rights

Epilogue

← Previous page: Magna CartaNext page: Fundamental Orders of Connecticut →


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