Anti-Federalist Papers: Brutus II, Part III: Common Ground and Continuity, contd.

It should not be seen as in the least surprising that most of the state constitutions which were drafted in the late 1770s following the declaration of American independence contained some form of a bill of rights on the British model. Inexperienced state-makers though the revolutionaries were, they seemed at least to be of the near-uniform opinion that certain rights were in need of concrete legal protection. Yates said as much in the third paragraph of Brutus II, where he observed that, “At a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government.” Of the rights enshrined in these state constitutions, Yates also chose to shine a spotlight on a particular few. Specifically, he pointed to the importance of the right of habeas corpus (in paragraph five), protection from excessive bail and fines and unlawful search and seizure (paragraph six), the right of trial by jury (paragraph eight), and the prohibition against the existence of standing armies during peacetime (paragraph nine).

Taking Yates’ assertion in hand, that Americans were so fond of their rights that the made sure to codify them when they were drafting their state constitutions, I thought it might be worthwhile to examine some of these state charters and see for myself. Rather than examine each of the eleven original state constitutions (remembering of course that Connecticut and Rhode Island maintained their colonial-era charters), however, I've instead chosen to explore those of Virginia, Massachusetts and Pennsylvania only. Among the thirteen original members of the United States, these three represented the greatest concentration of wealth, population, and influence. By comparing and contrasting their respective bills of rights, a great deal can be concluded about how much 18^th-century Americans valued these kinds of legal protections and which specific rights they felt were worth enumerating.

The first state constitution of Virginia was drafted in 1776, and contained a “Declaration of Rights” that encompassed sixteen sections. Among various calls for frequent meetings of the people’s elected representatives and repetitions of the assertion made famous by the Declaration of Independence that “all men are created equal,” the document stated: there would be no enactment of martial law without the consent of the people of their representatives; no levying of excessive bail or fines and no use of cruel and unusual punishment; that the rights of habeas corpus and trial by jury were guaranteed; that no warrants were to be issued without probable cause and due process; that there would be no standing armies in time of peace; no restrictions on the practice of religion or the freedom of speech; and that the right to frequent and fair elections was not to be abridged.

Pennsylvania’s 1776 constitution (the first of five) also contained a bill of rights that was divided into sixteen sections. Like that of Virginia, the document guaranteed freedom of religion, the right to fair and frequent elections, the rights of habeas corpus and trial by jury, and freedom of speech, as well as injunctions against standing armies during peacetime and warrants issued without due process and probable cause. Unlike the framers of Virginia’s constitution, the authors of Pennsylvania’s state charter also enshrined a right to taxation only with the consent of the people or their representatives, freedom of the press, assembly and movement between states and territories, and the right to bear arms.

The Massachusetts Constitution, written in 1779 and still in operation today, contains a thirty-part Declaration of Rights situated directly after its preamble (as perhaps a sign of its importance). While it covers most of the same topics as those similar documents enshrined in the Virginia and Pennsylvania constitutions, it also ventures into certain specific areas left untouched by either. In common with its brethren, the Massachusetts Declaration endorsed freedom of religion, assembly and speech, the right to bear arms and to enjoy fair and frequent elections, the right of habeas corpus and trial by jury, and prohibitions against taxation without consent, warrants being issued without probable cause and due process, the enactment of martial law without consent, or the levying of excessive fines or bail and the use of cruel and unusual punishment. Unique among the three here presented, the Massachusetts declaration also declared ex post facto laws illegal, made provisions for the public funding of religious education, and decreed that all powers not delegated to the United States in Congress Assembled (as the federal government was then known) were reserved to the state itself.

It would seem, between Yates’ claims and my meagre explorations, that there was at least a base set of fundamental rights whose importance most Americans agreed on. These included, by my reckoning, the rights of habeas corpus and trial by jury, the right to bear arms, to frequent elections and taxation only with consent, protection from excessive bail and fines and unlawful search and seizure, freedom of religion and speech, and an absolute prohibition against standing armies during peacetime. Of these, some are clearly Enlightenment derived. Free speech and freedom of conscience, for example, seem very much rooted in the embrace of personal responsibility, the search for truth and the importance placed on open debate that so defined the Enlightenment and the reforms movements it spawned. At the same time, the value that 18^th-century Americans seemed to place on the free exercise of religion was no doubt in part a consequence of how and why many of the colonies in British America were founded. Pennsylvania, Massachusetts, Maryland, Rhode Island, and New York (at least initially) were all characterized by their founders as havens for the religiously persecuted of England. While they did not always remain so, or the degree of religious liberty they afforded was not always consistent, the idea maintained a strong hold on the minds of the colonial political class.

That being said, a significant portion of the rights that members of the Founding Generation seemed to hold dear were arguably of British derivation. A perusal of the 1689 Bill of Rights, which Yates drew explicit attention to in Brutus II, makes this fact quite plain. In its ornate, 17^th-century verbiage the Bill of Rights, among many other resolves and declarations and protests, declared that it was in keeping with the “ancient rights and liberties” of the English people that the crown: had no power to collect taxes without the consent of Parliament (no taxation without representation); to raise armies in times of peace, or restrict the ability of the people to keep and bear arms; to tamper with the frequency of meetings of Parliament or the manner in which elections were held; to enforce excessive bail, fines, or punishment considered cruel or unusual; or to tamper with the right of trial by jury as established by tradition and precedent. In 1689, these were rights that the administrative classes in England agreed were absolutely fundamental to their shared sense of citizenship and socio-political identity. That they should have also been championed by 18^th-century Americans is not so surprising in light of their mainly British origins, though it is at times curious how rabidly anti-British many of the foremost defenders of these rights and liberties sometimes were.

To put forward another example, take the right of habeas corpus. A writ (like the previously discussed mandamus), habeas corpus petitions are utilized by those that have been arrested and detained but not formally charged in order to compel the arresting authority to bring the detainee before a recognized judicial power so that charges may be made known and the validity of their seizure can be established. If, for instance, an individual is arrested without cause and held for an indefinite period, a writ of habeas corpus can be requested in order to establish the unlawful nature of the imprisonment and secure the prisoner’s release. Often referred to as “the Great Writ,” habeas corpus has its origins in English common law and developed into one of the English legal system’s fundamental remedies over the course of many centuries. Statutes dated 1640 and 1679 were the first to formally enshrine the writ in English law, but ample evidence exists of its usage as far back as the 12^th century and the reign of Henry II. As 18^th-century British legal scholar William Blackstone explained in his Commentaries on the Laws of England, habeas corpus writs were always issued in the name of the monarch, who is,  “At all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." As common law was inherited by the English colonies founded in North America in the 17^th and 18^th centuries, so too was the Great Writ. And as Englishmen came to view it as one of the most basic protections afforded to every citizen against unlawful incarceration, so their American brethren came to see it in much the same way.

The point I’m trying to make, mazy and circuitous though it sometimes is, is essentially twofold. On the one hand, 18^th-century Americans were a very unusual people. They were, for their time, unique in their attachment to written constitutions. Their forefathers, the English, felt no such compulsion to codify every aspect of their government. Nor, with a few exceptions, did the ancient Greeks or Romans whom they praised and admired, or even the Dutch, members of the only other republic then in existence. Perhaps this was a consequence of their attachment to Enlightenment rationalism; what better way, after all, to make something plain and clear than by writing it down? Or perhaps it was due to the way their colonial government operated. Unlike Britain, which to this day has no written constitution, the colonies of British North America all functioned via a series of royally-granted charters. Virginia, Pennsylvania, Massachusetts; all were defined by charters that described the size, scope and composition of their governments. Sometimes these charters were revoked or replaced, but there never seemed to be a time when the colonists determined that they were no longer necessary or desirable. And when the Revolution came and a change was required, constitutions took their place, each containing a declaration of the rights that it was felt were most in need of protection.

When later events necessitated the writing of a national constitution, it was with surprise that many readers came to recognize the complete absence of a similar declaration contained within. Robert Yates was certainly one of those readers, and though his insistence on the inclusion of a written declaration of rights in the proposed federal constitution was rooted in a very American sentiment, the rights that he specifically chose to highlight and the historical examples he put forward were quite the contrary. Like so many Americans of the Founding Generation, Yates looked to their shared British past and to the rights and privileges he and his countrymen had inherited from their forefathers for guidance and inspiration. The importance of declaring the rights of the people in opposition to a central authority had been arrived at in Britain long before any of the American Founding Fathers had even been born. Habeas corpus and trial by jury were staples of English common law that had evolved over the course of centuries, and the supremacy of the people’s representatives (embodied in Parliament) over the arbitrary authority of the Crown had been secured via a long series costly wars. In short, Englishmen had wrestled their rights into existence and shed blood to ensure they were recognized and protected.

Members of the American Founding Generation fought for these same rights in the 1770s and 1780s no less valiantly than their predecessors, and for decades afterword continued to look to British history and philosophy for insight and illumination. This, in essence, is the other point I’d like to make, and which Yates perhaps unintentionally called attention to in Brutus II. The American Revolution and the political changes that it wrought were certainly innovative in many extremely important aspects, but the sense the revolutionaries had of natural rights and natural law arguably wasn’t one of them. In many ways, then, the American colonists’ conflict with Parliament was really a continuation of Parliament’s own struggles with the Crown in centuries past. By demanding that a bill of rights be included in the proposed federal constitution, Yates was in a sense helping to re-enact and rejuvenate the debate over natural rights and the limits of authority that had essentially been settled in Britain at the end of the 17^th century by the Glorious Revolution.