Origin of our rights
The Declaration of Independence and the U.S. Constitution are generally declared to be the pioneers for this country’s liberties, and they deserve that reputation. But they were based on a wide variety of sentiments expressed over the years in one instrument or another, many of which were written down in a form that was available to the Founding Fathers.
There was Magna Carta, for instance, when in 1215 England’s King John had to subscribe to a number of statements which included this:
“To none will we delay, to none deny, right or justice.”
The barons who dealt with King John did not have the common man in mind when it came to that sentiment. It was left to much later generations to broaden the original intent to include a wider degree of humanity.
In 1641 the Massachusetts legislative body, known then and now as the General Court, adopted a policy statement that contains several foreshadowings of later American statements, while retaining a number of ideas that were still prevalent in the 1600s. Known as the Body of Liberties, it was drawn up by Nathaniel Ward, a Puritan minister who had taken legal training. Among many other ideas it says:
“No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be restrained, banished, dismembered or in any way punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him nor in any way damaged under color of law or countenance of authority, unless it be by virtue of some express law of the country warranting the same.”
The document continued: “Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation.”
After a long series of statements about various liberties and methods of justice, the statement mixes thoughts that are familiar with those that pertained to the author’s own time:
“No man shall be twice sentenced by civil justice for one and the same crime, offense or trespass.
“No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equal to a gentleman be punished with whipping, unless his crime be very shameful, and his course of life vicious and profligate.
“No man shall be forced by torture to confess any crime against himself nor any other, unless when he is fully convicted to be guilty it is very apparent that there be other conspirators or confederates with him. Then he may be tortured, yet not with such tortures as be barbarous or inhumane.”
Exactly what sort of torture could not be considered barbarous and inhumane the document does not specify. But considering the fact that at the time that document was drawn up certain criminals could be hung, cut down when still alive, eviscerated and then killed, that might be what the author had in mind.
In 1641 there was a death penalty for witches, and if a man had sex with an animal, both were to be killed, with the document adding: “And the beast shall be buried and not eaten.”
In a section entitled “Of the Brute Creature,” a sentence reads: “No man shall exercise any tyranny or cruelty toward any brute creature which is usually kept for man’s use.”
That section also makes it permissible to refresh cattle on any person’s open land, if the animals are being driven to a distant place “so that they be weary, or hungry, or fall sick or lame.”
The document forbids forcing any person into public service if that person “is necessarily and sufficiently exempted by any natural or personal impediment, such as want of years, greatness of age, defect of mind, failing of senses or impotence of limbs.”
Good that some of these ideas are retained — but not all of them.
Kendall Wild is a retired editor of the Herald.