Our concept of a bill of rights is American in origin. The prior existence of the English Bill of Rights tends to obscure this fact. Except for the name, the two have very little in common. The American notion of a ‘bill of rights’ includes guarantees of personal freedom in a document which defines and limits the areas of the legislature’s action. In this sense, the Virginia Declaration of Rights of 1776 was the first modern bill of rights, since it was the first to use a written constitution to protect individual rights. While the concept of guarantees is primarily American, Madison would not have been able to draw up the Federal Bill of Rights if not for the struggles of many of his English forefathers.
The Coronation Charter of 1100 has many similar aspects to the Federal Bill of Rights. This charter was a grant of rights to the people by Henry I. There was much turmoil after Henry seized the throne. He granted his subjects certain rights in order to obtain support for his rise to power. It was drawn up by the King’s advisor to secure obedience and respect of the people by limiting the powers of the governing body with respect to the people’s rights.
The Magna Carta was a direct result of Henry’s Coronation Charter. For the first time in English history, the people laid down binding laws that the sovereign ruler could not violate. It was also the beginning of the idea that each individual has certain inalienable rights. What took place at Runnymede in 1215 was a bargain between king and subject. The result of this bargain was a document enumerating the basic liberties of Englishmen of the day.
The Magna Carta was primarily a feudal document dictated by the barons to correct King John’s abuses of the feudal system. It is extremely important to note that its more important provisions were cast in broader terms. The Barons were interested in their own grievances with John. Luckily for all Englishmen, they refined the words “any Baron” to “any free man”(liber homo .) This change of phrasing may have seemed insignificant at the time (“free man” was certainly a more technical term in the feudal period) yet it turned out to be of great importance; it meant that key chapters of the Charter could be construed to fit the needs of later ages seeking precedents to protect their liberties.
This is particularly important in the case of Chapters 12 and 39 of the Magna Carta. Chapter 12 reads, “Scutage or aid shall be levied in our kingdom only by the common counsel of our kingdom.” This would be interpreted by later generations to mean the “no taxation without representation” of the colonial 1760’s.
Chapter 39 declares, “No free man shall be captured or imprisoned or disseised (sic) or outlawed or exiled or in any way destroyed.... except by the lawful judgment of his peers and by the law of the land.” Although this was probably intended to confirm the barons’ right not to be tried by inferiors, the language used has made it serve a far wider purpose. Sir Edward Coke, in his seventeenth-century commentary on the Magna Carta, read it as a guarantee of trial by jury, prohibition of arbitrary arrest, and dispensing of full, free, and speedy justice to all men. In Coke’s commentary, the crucial phrase at the end of the chapter “by the law of the land” was interpreted as “due process of law”. This provides a link between the Magna Carta and one of the more important clauses in the American Bill of Rights.
The next of the English antecedents of the Bill of Rights was the Petition of Right in 1628. The Petition of Right was a protest by the House of Commons aimed at the violation of rights during the reign of Charles I, particularly the right of citizens that protects against arbitrary arrest. Sir Edward Coke was primarily responsible for this petition. In 1616 Coke, at age sixty-five, was discharged from his position as Chief Justice of the King’s Bench, the highest judge of the nation. He was discharged because he refused to put the power of the throne ahead of the law for the absolutist monarch James I.
Four years later,