Continue to text: Habeas Corpus, Bill of Rights, Virginia Declaration, U.S. Bill of Rights.

One of the basic human rights incorporated in the English and American law is Habeas Corpus - “that you have the body” (the name comes from the first two words of the medieval Latin text of the writ) by which any individual who has been imprisoned can claim the right to be taken before a legal court and to have the person who detained them prove that this was done in accordance with the law of the land. Governments have, on occasions, chafed at this restriction to their power but from Anglo-Saxon common-law beginnings in England, this right has had the support of people and legislators through the centuries.

The Habeas Corpus Act of 1679 is an English Act of Parliament passed during the reign of King Charles II to define and strengthen the ancient prerogative writ of habeas corpus, which had existed in England for at least three centuries before. The writ is a written summons addressed to the custodian demanding that a prisoner be taken before a court to decide if he or she is being lawfully detained. The writ may be a court order or issued by an individual. The Act of 1679 followed an earlier act of 1640, which established that to say the arrest was on the command of the King or the Privy Council was no answer to a petition of habeas corpus. Although amended, this Act remains on the U.K. statute book to the present day.

The Bill of Rights of 1688 is an English Act of the Parliament passed on the 16th December 1689. It was a re-statement of the Declaration of Right presented by Parliament to William and Mary in March 1688/89 inviting them to become joint sovereigns of England. It lays down limits on the powers of sovereign and sets out the rights of Parliament and rules for freedom of speech in Parliament, the requirement to regular elections to Parliament and the right to petition the monarch without fear of retribution. It also re-established the liberty of Protestants to have arms for their defence within the rule of law.

These ideas about rights reflected those of the political thinker John Locke and they quickly became popular in England. Sections of the Bill of Rights are still in effect and together with the Magna Carta and the Habeas Corpus Act form the basis of the uncodified British Constitution

The Virginia Declaration of Rights of 1776 was adopted unanimously by the Fifth Virginia Convention at Williamsburg, Virginia on 12th June 1776 as a separate document from the Constitution of Virginia which was adopted on 29th June 1776. In 1830, the Declaration of Rights was incorporated within the Virginia State Constitution as Article I, but even before that Virginia’s Declaration of Rights stated that it was “the basis and foundation of government” in Virginia. The initial draft by George Mason IV was based on the rights of citizens described in earlier works such as the English Bill of Rights (1689).

The Declaration can be considered the first modern Constitutional protection of individual rights for citizens of North America. It rejected the notion of privileged political classes or hereditary offices such as the members of Parliament and House of Lords described in the English Bill of Rights. While the Virginia Declaration of Rights is a noted forerunner of the Bill of Rights, the Virginians did not promise the right to free speech, the right to assemble or petition of the government for redress. A slightly updated version is incorporated in Virginia’s Constitution, which is legal up to the present day.

The U.S. Bill of Rights of 1791 was the direct result of a proposal by George Mason made at the Constitutional Convention in Philadelphia in 1787. On 17th September 1787 the U.S. Constitution had been prepared and signed and the Constitution’s supporters believed that the control of government and Congress made the Constitution the guarantor of the people’s rights and liberties without the need for a Bill of Rights. However Mason and other men who opposed ratification of the Constitution feared that a national government with too much power would be a danger to liberty. It was ratified by 11 of the 14 States although many proposed amendments, and it came into effect on 4th March 1789.

In Virginia, after the convention narrowly voted to ratify the Constitution, the opponents of ratification proposed a long list of amendments, some of which drew on the Virginia Declaration of Rights and the English Bill of Rights for explicit protection of fundamental liberties.

James Madison was a member of the United States House of Representatives who previously believed that a bill of rights was unnecessary. These debates and objections changed his mind and, taking into account the amendments that the Virginia and other state ratification conventions had proposed, he introduced the first draft of Amendments to the Constitution. On 25 September 1789, the First Congress of the United States proposed a final version of these amendments to the state legislatures and they were adopted with effect from 15 December 1791 when the 11th State, Viginia, ratified them. The first ten amendments to the Constitution, have been known since as the U.S. Bill of Rights and are celebrated by a public holiday every 15th December.

Note: Three of the original thirteen states, Connecticut, Georgia, and Massachusetts, did not ratify the first ten amendments until 1939, when they were urged to do so in a celebration of the 150th anniversary of their passage by Congress - Wikipedia

To bring the story full circle, Article 1 Section 9 of the US Constitution states that: “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.” Since the word ‘rebellion’ is not defined, a major political protest might be classed as a rebellion. It appears that a number of states do not include the right of habeas corpus in their constitutions. Article 9 of the 1948 Universal Declaration of Human Rights states that: “no one shall be subjected to arbitrary arrest, detention or exile”. However it does not define the word ‘arbitrary’ or spell out clearly that the legality of any detention may be challenged. Perhaps the simple writ of habeas corpus needs to be revived in International law.

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