The Case of Proclamations created a political uproar

“I was sent to attend the Lord Chancellor, Lord Treasurer, Lord Privy Seal, and the Chancellor of the Duchy; there being present the attorney, the solicitor, and recorder: and two questions were moved to me by the Lord Treasurer; the one if the King by his proclamation may prohibit new buildings in and about London, etc; the other, if the King hath answered, that he will confer with his Privy Council, and his Judges, and then he will do right to them … I did humbly desire them that I might have conference with my brethren the Judges about the answer of the King, and then to make an advised answer according to law and reason.”

– The decision written by Sir Edward Coke, in the Court of King’s Bench, in the Michaelmas Term of the year 1610 – better known today as Sir Edward Coke’s “Case of Proclamations” (1610)

The Case of Proclamations was the brainchild of Sir Edward Coke, and angered King James

In 1610, Sir Edward Coke was a judge in the Court of King’s Bench. He had been appointed there by King James the First of England. The king’s Lord Chancellor approached Sir Edward Coke about a court case that Coke was then hearing. This court case is now known as the “Case of Proclamations.” When Sir Edward Coke made his decision, Coke noted the Lord Chancellor’s prior requests to him in the decision itself. The relevant part is as follows: “the Lord Chancellor said, that every precedent had first a commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order in it, according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice: and that the King was so much restrained in his prerogative, that it was to be feared the bonds would be broken: but to apply his medicine according to the quality of the disease: and all concluded that it should be necessary at that time to confirm the King's prerogative with our opinions, although that there were not any former precedent or authority in law: for every precedent ought to have a commencement.” (see source) Sir Edward Coke then offered his response, which would not exactly please this same King James.

Sir Edward Coke

The “Fundamental Orders of Connecticut” may be the world’s first written constitution

“I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention.”

– James Madison, in the Federalist Papers (Federalist No. 47)

Some consider this document to be the world’s first written constitution

The United States Constitution was the first written constitution for an entire nation. But there were actually several state constitutions that came before it, which were mostly found in the thirteen colonies that became the early United States. They already had functioning democracies by the time they declared their independence in 1776, and had more than a century of democratic experience by this time. Although the writers of the Constitution would also draw upon the experiences of Greece and Rome (not to mention Great Britain), they would also be drawing upon their own experience as well, and upon the constitutions of their own states. Some would consider the world’s first “constitution” (in the modern Western sense of that word) to be the “Fundamental Orders of Connecticut,” a document that was written in 1639 – nearly a century and a half before the United States Constitution was written in 1787. Some would dispute the claim that the Fundamental Orders of Connecticut were truly the world’s first constitution, I should note here, and I suppose it depends somewhat upon how you define this word. But however you define it, it would nonetheless seem fair to say that the “Fundamental Orders of Connecticut” were groundbreaking; and that they were a considerable influence on the United States Constitution.

The Habeas Corpus Act and the English Bill of Rights influenced our Constitution

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

– Article 1, Section 9, Paragraph 2 of the United States Constitution

It might come as a surprise to say this, but the British have a real “Constitution,” even if it isn't all written down in one document like ours might seem to be. Rather, it would seem to be a constitution built out of multiple documents, such as the Magna Carta and the Petition of Right (both of which I have covered in prior posts). No less important are the Habeas Corpus Act and the English Bill of Rights, which were foundational for the rights of English-speaking countries. Like the other documents mentioned here, they would both have an enormous influence on the United States Constitution. I have covered the other documents mentioned here in some other posts of this series, so I will instead focus my attention here on the Habeas Corpus Act and the English Bill of Rights (both vitally important).

Parliament of England

How did the Massachusetts Body of Liberties influence the Bill of Rights?

“No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.”

– The Massachusetts Body of Liberties (1641), Section 47

The Massachusetts Body of Liberties codified many of the basic rights and privileges that we enjoy today. It had an early form of freedom of speech, and a right to petition the government with a “complaint.” It listed several rights of the accused; such as a protection from double jeopardy, a protection from forced confessions, and a protection from excessive bail. It gave them rights to a trial in criminal cases, and the right to an attorney to represent them in these trials. It gave them protections of life and property (as well as the right to challenge jurors), and some potent protections against any “inhumane Barbarous or cruel” bodily punishments. All of these things influenced the United States Bill of Rights, and it is hard to imagine life in this country without them. Our country would be in a much worse shape, if we didn't have these things. Thus, an examination of these rights would seem to be appropriate here. (I have decided to preserve the original spellings of its passages when quoting them, to give the reader something of their style and flavor.)

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, rights may not be withheld merely because they aren't listed in the Constitution.) 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 [bills of rights] 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