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                                1 of 6 DOCUMENTS
 
           Copyright (c) 2001 The University of Baltimore Law Review
                        University of Baltimore Law Review
 
                                   Fall, 2001
 
                              31 U. Balt. L. Rev. 41
 
LENGTH: 14334 words
 
ARTICLE: THE FIRST AMERICAN BILL OF RIGHTS: WAS IT MARYLAND'S 1639 ACT FOR THE
  LIBERTIES OF THE PEOPLE?
 
 Charles A. Rees+
 
 

 + J.D., 1970, Harvard University; Professor of Law, University of Baltimore
 School of Law; Member, Maryland Bar. Professor Rees would like to thank Lois
 Carr, Dan Friedman, Jeffrey Sawyer, and Gregory Stiverson for their thoughtful
 comments on a draft of this Article. Additionally, Professor Rees would like to
 thank the University of Baltimore Educational Foundation for a research grant
 and Jane Cupit and Harvey Morrell for their professional library services.
 
SUMMARY:
  ...  Which state gets the "bragging rights" for the first American bill of
 rights? According to constitutional law scholar Bernard Schwartz, Maryland takes
 the honor for its 1639 Act for the Liberties of the People. ...  However,
 Maryland's 1639 Act, passed by the settlers' own assembly, gave more specific
 content to these rights. ...  While the colonial charters merely stated that the
 colonists were "entitled to the rights of Englishmen," the Act gave "those
 rights specific content. ... Maryland has two other candidates for the "first
 American Bill of Rights" - a 1638 Act for the Liberties of the People and the
 1639 Act ordeining certain Laws for the Goverment of this Province. ... B. Was
 Maryland's 1639 Act Ordeining Certain Laws for the Goverment of this Province
 the "first American Bill of Rights?" ...  The omnibus Act ordeining certain Laws
 for the Goverment of this Province defined what rights were protected. ...  The
 rights enumerated in the omnibus Act ordeining certain Laws for the Goverment of
 this Province were enforceable by the courts. ... Therefore, the Act ordeining
 certain Laws for the Goverment of this Province may well deserve the title, the
 "first American Bill of Rights. ... The Act ordeining certain Laws for the
 Goverment of this Province appears to satisfy Schwartz's description of the
 characteristics of a "Bill of Rights" in the American sense. ...
 
TEXT:
  [*41]
 
   I. INTRODUCTION
 
 Which state gets the "bragging rights" for the first American bill of rights?
 According to constitutional law scholar Bernard Schwartz, Maryland takes the
 honor for its 1639 Act for the Liberties of the People. n1 Because this honor
 could be a kind of constitutional "gold mine" for Maryland, I review Schwartz's
 claim in Part II, "Staking the Claim," n2 evaluate the claim in Part III,
 "Mining the Claim," n3 and reach my conclusions in Part IV, "Claiming the Mine."
 n4 I conclude that Maryland gets the "bragging rights" for the first American
 bill of rights, not for the 1639 Act, but for a different act - either an
 earlier, 1638 Act for the Liberties of the People n5 or, more likely, another
 1639 statute, An Act ordeining certain Laws for the Goverment of this Province.
 n6
 
   II. STAKING THE CLAIM
 
 Constitutional law scholar Bernard Schwartz, documenting the history of the
 Bill of Rights of the United States Constitution beginning with the English
 Magna Carta (1215), claimed that the "first American Bill of Rights," enacted by
 a colonial assembly, was Maryland's Act for the Liberties of the People in 1639.
 n7 The 1639 Act for the Liberties of the People reads:
 
    [*42]
 
 Be it Enacted By the Lord Proprietarie of this Province of and with the advice
 and approbation of the ffreemen of the same that all the Inhabitants of this
 Province being Christians (Slaves excepted) Shall have and enjoy all such rights
 liberties immunities priviledges and free customs within this Province as any
 naturall born subject of England hath or ought to have or enjoy in the Realm of
 England by force or vertue of the common law or Statute Law of England (saveing
 in such Cases as the same are or may be altered or changed by the Laws and
 ordinances of this Province)
 
   And Shall not be imprisoned nor disseissed or dispossessed of their freehold
 goods or Chattels or be out Lawed Exiled or otherwise destroyed fore judged or
 punished then according to the Laws of this province saveing to the Lord
 proprietarie and his heirs all his rights and prerogatives by reason of his
 domination and Seigniory over this Province and the people of the same This Act
 to Continue till the end of the next Generall Assembly n8
 
 

    While the settlers' rights as Englishmen were typically protected under a
 colonial charter granted by the King, those rights were only generally stated.
 n9 However, Maryland's 1639 Act, passed by the settlers' own assembly, gave more
 specific content to these rights. n10
 
    [*43]  I take Schwartz's claim seriously. He was a prolific scholar n11 and
 an honored teacher of constitutional law. n12 Other scholars have repeated his
 claim. n13 Let us now review Schwartz's claim.
 
    [*44]
 
   III. MINING THE CLAIM
 
 There are a number of interpretive problems with Bernard Schwartz's claim that
 Maryland's 1639 Act for the Liberties of the People was the "first American Bill
 of Rights." n14 These problems include: (1) What was Schwartz's claim about the
 "first American Bill of Rights?" (2) Was it Maryland's 1639 Act for the
 Liberties of the People?
 
   A. What Was Schwartz's Claim About the "First American Bill of Rights?"
 
 To interpret Schwartz's claim about the "first American Bill of Rights"
 properly, it must be determined what Schwartz meant by the terms "first,"
 "American," and "Bill of Rights." We will consider each of these terms.
 
   1. Schwartz's Claim About the First American Bill of Rights
 
 In his study of the Bill of Rights, Schwartz took historical and analytical
 approaches. He organized his documentary history by time, starting with English
 antecedents, working through colonial charters and laws, continuing with
 revolutionary-era declarations and state constitutions, and proceeding through
 the period of the Articles of Confederation, including the debates and
 ratification of the Constitution. n15  [*45]  Schwartz then took up the
 legislative history of the Bill of Rights and its ratification by the states.
 n16
 
   At the end of his work, Schwartz analyzed the source of each discrete right
 in the Bill of Rights in a one-page table detailing the "First Document
 Protecting," the "First American Guarantee," and the "First Constitutional
 Guarantee" of each right. n17
 
   a. Schwartz's Claim Is Too Big
 
 In the context of his work, Schwartz's claim that Maryland's 1639 Act for the
 Liberties of the People is the first American bill of rights may be both too big
 and too small. The claim may be too big, because Schwartz's work only documents
 the English and United States constitutional traditions, n18 despite the fact
 that people from other countries and legal traditions (notably, Scandinavia,
 Italy, Spain, Portugal, France, and the Netherlands) explored and settled in the
 Americas. n19 However, Schwartz explained that settlers from countries other
 than England did not take with them the rights of their home countries, like the
 English settlers did. n20 The claim may also be too big because "American" may
 refer to North, n21 Central, and South America; not just the area that is
 presently the United States. Furthermore, there were "native Americans" in what
 is currently the United States when the Europeans arrived. n22 Finally, even the
 "history" has a history. The road from the United States back to England leads
 on to Greece and Rome n23 and elsewhere. n24
 
    [*46]
 
   b. Schwartz's Claim Is Too Small
 
 Schwartz's claim that Maryland's 1639 Act is the first American bill of rights
 may also be too small. As mentioned earlier, Schwartz's work included a table,
 which detailed the source of each discrete right in the Bill of Rights. n25 For
 each of the twenty-six rights, Schwartz set forth the first document that
 protected that right, the first American guarantee of that right, and the first
 constitutional guarantee of that right. n26 There are also many "firsts" as to
 the Bill of Rights as a whole. Schwartz's methodology suggested calling the
 Magna Carta (1215) n27 the first English bill of rights, the Petition of Right
 (1628) n28 the first English legislated bill of rights, and the Bill of Rights
 (1689) the first English constitutional document formally bearing the title
 "Bill of Rights." n29
 
   In America, Schwartz recognized many "firsts" following Maryland's 1639 Act
 for the Liberties of the People, the "first American Bill of Rights." n30
 Schwartz named The Massachusetts Body of Liberties (1641) "the first detailed
 American Charter of Liberties." n31 Oddly, because he discussed it with
 Maryland's 1639 Act, Schwartz called that Body of Liberties "the first American
 attempt" to set forth "fundamental rights ... in a written instrument enacted by
 the people's representatives ... ." n32 Additionally, Schwartz noted that a New
 York printing of the Declaration and Resolves of the First Continental Congress
 (1774), titled "The Bill of Rights," was "the first specific use of  [*47]  the
 term in connection with an American document." n33 Schwartz designated the
 Virginia Declaration of Rights (1776) as "the first true Bill of Rights in the
 modern American sense," because it was contained in a constitution adopted by a
 convention elected by the people. n34 Schwartz honored the New Hampshire Bill of
 Rights (1783) as "the first American constitutional document formally to bear
 the title of Bill of Rights." n35 Furthermore, he recognized the Northwest
 Ordinance (1787) as "the first Bill of Rights enacted by the Federal
 Government." n36 Of course, Schwartz's work on the "Bill of Rights" was about
 the federal Bill of Rights, n37 the first ten amendments to the United States
 Constitution, proposed by Congress in 1789 and ratified by the states by 1791.
 n38
 
   2. Schwartz's Meaning of an American Bill of Rights
 
 In his work regarding the federal Bill of Rights, Schwartz divided the
 pre-revolutionary history of the federal Bill of Rights into: (1) "English
 Antecedents," which included, Magna Carta (1215), Petition of Right (1628), and
 Bill of Rights (1689); and (2) "Colonial Charters and Laws," which included
 royal charters of Virginia, Maryland, Rhode Island, and Providence Plantations,
 and fundamental laws drawn up by the representative colonial legislatures in
 Connecticut, Maryland (including the 1639 Act for the Liberties of the People),
 Massachusetts, and New York. n39 The "English Antecedents" were written by and
 for Englishmen. n40 The colonial charters, although recognizing the rights of
 settlers in America, were grants by the English monarch. n41 The fundamental
 laws, such as Maryland's 1639 Act, were drawn up by representative colonial
 legislatures and were "American" - homegrown in America, by and for Americans.
 n42
 
    [*48]  Schwartz uses the term "American" in his claim about the "first
 American Bill of Rights" in three notable ways. First, by "American," Schwartz
 means the work of English settlers in the area that is now the United States.
 n43 Second, Schwartz's claim assumes that America was  [*49]  not only a
 geographical place but also a people or political entity capable of having a
 bill of rights of its own. n44 However, this was not so at the time of the 1639
 Maryland Act. Schwartz himself recognized that the early American bills of
 rights were drawn up by local legislatures, established under the authority of
 colonial charters, n45 and "were legally subject to the overriding authority of
 the British government." n46 However, in 1776, the American Revolution "ensured
 the triumph of the American conception." n47 Third and relatedly, Schwartz's
 claim assumes that the rights of Englishmen, assured by the 1639 Maryland Act,
 were "American" rights when possessed by Americans. n48 Again, to be valid, this
 claim required a revolution.
 
   3. Schwartz's Meaning of Bill of Rights
 
 In his work regarding the federal Bill of Rights, Schwartz described the
 characteristics of a "Bill of Rights" in the American sense. First, Schwartz
 described it as a declaration of rights in a fundamental law. n49 Second, the
 Bill of Rights defines the rights protected. n50 Third, a bill of rights is
 drawn up by a representative legislative assembly. n51 Fourth, the rights
 enumerated in the Bill of Rights are enforceable by the courts. n52
 
   a. Declaration of Rights in a Fundamental Law
 
 Schwartz viewed the 1639 Maryland Act for the Liberties of the People as a
 "Bill of Rights," a declaration of rights in a fundamental law. n53 The 1639
 Maryland Act was written: n54 its title, "Act for the Liberties of the People,"
 suggested a declaration of rights. n55 As we shall see, the Act defined rights.
 n56 The Act was one of many attempts by Maryland colonists to establish their
 rights as Englishmen. n57 While the Act was  [*50]  ordinary legislation, not
 part of a charter, constitution, or other foundation document, n58 the rights it
 described were fundamental and basic. n59 Those rights were not intended to be
 just a declaration of principles, but rather enforceable "law." n60 However,
 Schwartz failed to mention that the fundamental nature of the 1639 Maryland Act
 was limited in three significant ways. First, the rights declared were expressly
 subject in some way to the Proprietor's prerogative. n61 Second, the Act was
 temporary, continuing only until the end of the next General Assembly. n62
 Third, the Act was never duly enacted. n63
 
   b. Definition of the Rights Protected
 
 "Elementary" or rudimentary as it was, the 1639 Maryland Act defined what
 rights were protected. n64 While the colonial charters merely stated that the
 colonists were "entitled to the rights of Englishmen," the Act gave "those
 rights specific content." n65 The Act specified English common law, as well as
 statutory law, as a source of those rights. n66 Additionally, the Act
 paraphrased Chapter 39 of the Magna Carta, known now as "due process." n67 Thus,
 these were "basic rights," n68 although they were not described in detail as
 they were in the later Massachusetts Body of Liberties (1641). n69
 
    [*51]
 
   c. Drawn up by a Representative Assembly
 
 A representative assembly drafted the 1639 Maryland Act. n70 The Act was not
 the grant of an English monarch, an act of grace that could be amended or
 revoked at the will of the grantor. n71 Rather, the Act was one of
 self-government by the General Assembly of Maryland, a body that claimed at
 least some of the privileges and powers of the English Parliament. n72
 Apparently, the fact that the 1639 Act was an act of ordinary legislation drawn
 up by a legislature, not a constitution drawn up by a convention specially
 elected for that purpose n73 and ratified by the people, n74 is not fatal to
 Schwartz's claim for the Act. However, elsewhere in Schwartz's work are
 suggestions that there were limitations on the Maryland colonists'
 self-government. First, the right to a popular legislative assembly was granted
 as a matter of grace by an English monarch n75 - by Article VII of the Charter
 of Maryland (1632) from King Charles I to Lord Baltimore. n76 Second, the
 Maryland General Assembly included not only representatives of the freemen, but
 all gentlemen and the members of the Proprietor's Council, individually. n77
 Third, any act of Maryland's General Assembly was subject to the Proprietors
 veto. n78
 
   d. Rights Enumerated Are Enforceable by the Courts
 
 Schwartz viewed the rights enumerated in the Maryland Act for the Liberties of
 the People as enforceable by the courts. Apparently, Schwartz based this view on
 the fact that the rights set forth in the Act  [*52]  were not just mere
 declarations of moral principles. n79 The rights of colonists under English
 common law, statute, and the right to due process were "laws" that could be
 enforced by the courts n80 even against the government. n81
 
   Thus, under the Maryland Act for the Liberties of the People, there was a
 very rudimentary system of checks and balances and, perhaps, even judicial
 review. n82 However, the 1639 Maryland Act was unenforceable. As we have already
 seen, the Act by its terms was subject in some way to the Proprietor's
 prerogative n83 and was temporary in duration. n84 The nature of the Act was
 just ordinary legislation, n85 not "higher law," such as a constitution, supreme
 over legislation or other governmental actions. n86 Also, as we shall see, the
 Act was never duly enacted. n87
 
   Having reviewed what Schwartz meant by the "first American Bill of Rights,"
 the next inquiry is whether that honor fits Maryland's 1639 Act.
 
    [*53]
 
   B. Was Maryland's 1639 Act for the Liberties of the People the First American
 Bill of Rights?
 
 In critiquing Schwartz's claim, the interpretative problems are: (1) whether
 the Act was dated 1639, and (2) whether it was duly enacted.
 
   1. Was the Act for the Liberties of the People Dated 1639?
 
 Maryland's 1639 Act for the Liberties of the People was the act of a session of
 the General Assembly of Maryland meeting during a period of less than a month
 from February 25 to March 19, "1638/9." n88 Curiously, the call for that
 assembly was dated December 21, 1638. However, the subsequent summons for the
 attendance of gentlemen were issued January 18, 1638; the summons for freemen to
 elect representatives from their local hundreds were given February 11, 1638;
 the returns of the elections were dated variously from February 14 to 21, 1638;
 and a letter of August 21, 1638 from the Proprietor was read on February 25,
 1638, the first day of the assembly. n89
 
   Before 1752, Britain and its American colonies used an "old style" Julian
 calendar with a new year beginning on March 25. n90 Beginning in 1752, Britain
 and its American colonies used a "new style" or Gregorian calendar with a new
 year beginning on January 1. n91 Thus, the "1638/9" Act for the Liberties of the
 People was dated 1638 (old style) and 1639 (new style). n92 Therefore, the Act
 may properly be dated 1639, for that is the modern way of dating an act of an
 assembly meeting February 25 to March 19, 1638. The new style dating will be
 used in this Article.
 
   2. Was the Act for the Liberties of the People Duly Enacted?
 
 Schwartz spoke of Maryland's 1639 Act for the Liberties of the People as though
 it was duly enacted. He discussed the Act in the context of the American
 settlers, through "the enactment of statutes" by their elected legislators,
 defining the colonists' basic rights. n93 Additionally, he called the 1639 Act
 an "Act" that "the Maryland General Assembly  [*54]  approved." n94 Then,
 Schwartz contrasted the 1639 Act with a later Maryland legislative attempt to
 define the colonists' rights, an attempt that was disallowed by the crown during
 the period that the colony was under the authority of the British monarch, not
 under the authority of the Proprietor. n95
 
   a. Evidence of Enactment
 
 There is evidence that Maryland's 1639 Act for the Liberties of the People was
 duly enacted. It was set forth in full in the form of a due enactment in the
 primary source book of early Maryland laws and is entitled an "Act." n96
 Additionally, it has an enactment clause: "Be it Enacted By the Lord
 Proprietarie of this Province of and with the advice and approbation of the
 ffreemen of the same that ..."; and it has an expiration date: "This Act to
 Continue till the end of the next Generall Assembly." n97 In the "Calendar of
 State Archives" in the same book of laws, the 1639 Act is presumably one of "38
 Acts in full" of the proceedings of the 1639 session of the General Assembly.
 n98 The Act is indexed in that book of laws among the "Titles of Bills Passed,"
 n99 as well as among the "Titles of Bills Read." n100 Further, when a committee
 of the Maryland General Assembly in 1723 reviewed provincial records to see
 whether English law was received in the colony, it listed as evidence of that
 reception certain "Acts of Assembly," including the 1639 Act. n101
 
   There is also scholarly support for Schwartz's assumption that Maryland's
 1639 Act for the Liberties of the People was duly enacted. As we have seen, some
 scholars repeat Schwartz's claim that the 1639 Act was the "first American Bill
 of Rights." n102 Others, citing Schwartz, have made similar, but less explicit
 claims. n103 Still others, not citing  [*55]  Schwartz, have made claims like
 his, and additional scholars have cited the 1639 Act as though it was duly
 enacted. n104
 
   b. Evidence that the Act Was Never Duly Enacted
 
 There is evidence that Maryland's 1639 "Act" was never duly enacted. According
 to the proceedings of Maryland's General Assembly, the Act was a "bill" "For the
 Liberties of the People," which had a first reading, n105 then a second reading,
 n106 but never had a third reading and was never passed by vote of the General
 Assembly. Additionally, it was never undersigned by the Secretary of the
 Province after it was written that "the freemen have assented" and "the Lord
 Proprietary willeth that this be a Law," which were procedural steps required by
 the rules of order for the General Assembly. n107 Also, the 1639 Act was one of
 thirty-six reported after the following entry in the proceedings of the General
 Assembly: John Lewger, the Secretary of the Province, entered a "memorandum that
 these bills were engrossed to be read the third time but were never read nor
 passed the house." n108
 
   By contrast, consider an omnibus Act, which was the principal product of the
 same 1639 legislative session. According to the proceedings of the General
 Assembly, a "Bill for the Government of the Province," had three readings, was
 passed by vote of the General Assembly, and was assented to by the Lieutenant
 General in the name of the Lord Proprietary. n109 The measure was set forth as
 An Act ordeining certain Laws for the Goverment of this Province within the
 following entry in the proceedings:
 
 

    At a sessions of Generall Assembly at St. Maries on the 19[su'th'] March
 1638 To the Honour of God and the wellfare of this province was Enacted as
 followeth
 
   An Act ordeining certain Laws for the Goverment of this Province ...
 
   ... .
 
    [*56]  The freemen have assented
  The Lord proprietarie willeth that this be a Law verum recordum
  John Lewger Secretary
  March 19[su'th'] 163[9] n110
 
 

    Ironically, portions of this omnibus Act, rather than the Act for the
 Liberties of the People from the same 1639 session of the Maryland General
 Assembly, may qualify as the "first American Bill of Rights." n111 When the 1642
 session of the General Assembly revived certain temporary laws of the 1639
 session, the laws were portions of the Act ordeining certain Laws for the
 Goverment of this Province, not the Act for the Liberties of the People. n112
 
   There is also scholarly support for the proposition that contrary to
 Schwartz's claim, Maryland's 1639 Act for the Liberties of the People was never
 duly enacted. One scholar concluded simply that the Act was not passed. n113
 Others reached the same conclusion and in addition, noted that the other 1639
 measure, the Act ordeining certain Laws for the Goverment of this Province, was
 enacted at the same session of the General Assembly. n114 Still other scholars
 omitted any reference to Schwartz's Act, but remarked on the enactment of the
 omnibus Act. n115
 
    [*57]
 
   c. Evidence of Non-Enactment Outweighs Evidence of Enactment
 
 My conclusion is that the 1639 Act for the Liberties of the People was never
 duly enacted. I do not believe that the evidence of its due enactment n116 can
 stand up to the evidence that it was not duly enacted. n117 Additionally, the
 evidence that it was duly enacted can be explained away. First, as to the form
 of the 1639 Act as a due enactment - its title, enactment clause, and expiration
 date n118 all might appear in a bill or draft of an act, particularly in one
 that had been read twice and engrossed (written) for a third reading, n119 as
 well as in a duly enacted law.
 
   Second, regarding the "thirty-eight Acts in full" of the 1639 legislative
 session, presumably including the Act for the Liberties of the People, referred
 to in the Calendar of State Archives in the book of laws, n120 the word "act"
 might have been used in a sense broader than "duly enacted law." The proceedings
 of each session of the General Assembly were titled "Proceedings and Acts ...,"
 n121 and the proceedings of each day were titled "Acts of the ... day ... ."
 n122 Additionally, at least one bill was referred to as an "act" on its first
 reading, n123 although the bill never proceeded to a second or third reading and
 was never passed.
 
   Third, as to the inclusion of the Act for the Liberties of the People among
 the "Titles of Bills Passed," n124 the titles of the other thirty-five bills
 reported in full in the book of laws, n125 although not read a third time or
 passed, n126 are also included among the "Titles of Bills Passed." n127
 Alternatively, the Calendar of State Archives and the "Titles  [*58]  of Bills
 Passed" may simply be in error, prepared by a different person than the editor
 of that volume of the Archives. The editor in a later work concluded that the
 "thirty-six acts ... never passed to a third reading." n128
 
   Fourth, regarding the 1723 legislative committee report, referring to acts of
 the General Assembly as evidence that English law had been received in
 provincial courts, n129 the report stated that the Act for the Liberties of the
 People was introduced on March 19, 163[9], a day on which proceedings contain no
 reference to the act. n130 The report also referred to seven other bills
 reported in full in the book of laws as "acts" of the same legislative session,
 although they were not read a third time or passed, n131 as well as the duly
 enacted Act ordeining certain Laws for the Goverment of this Province. n132
 
   Additionally, I do not believe that the scholars who argue that the 1639 Act
 for the Liberties of the People was duly enacted n133 can stand up to the
 scholarly support that it was not duly enacted. n134 The "clincher" seems to be
 that none of the scholars supporting due enactment mentioned, much less tried to
 explain, that the measure had only two readings in the General Assembly, not the
 required three, was never passed by that body, and was one of thirty-six bills
 set forth in the book of laws after a memorandum of the Secretary of the
 Province explaining that the bills were never read a third time and never
 passed. n135
 
   However, one scholar, John Leeds Bozman, attempted to harmonize the
 thirty-six detailed bills, which failed to pass, with the one short omnibus Act
 that did pass. n136 Bozman's theory was that the omnibus Act was an abridgement
 of the thirty-six bills, and that the bills  [*59]  illustrated or explained the
 Act, or that the Act directed attention to the bills, or made them obligatory in
 some measure. n137 Bozman supported his theory with four points. First, the
 title of the omnibus Act ordeining certain Laws for the Goverment of this
 Province alludes to other laws not included in the body of the Act. n138 Second,
 the omnibus Act in form resembles the Magna Carta, a collection of statutes; the
 omnibus Act is a collection of most of the thirty-six bills. n139 Third, the
 subjects covered by the omnibus Act and the thirty-six bills are nearly
 identical. n140 Fourth, in several reported instances, the bills (although
 unpassed) were received and acted upon as laws of the Province in force. n141
 Bozman did not speculate about why the thirty-six bills were not specifically
 passed by the General Assembly. n142
 
   Ironically, Bozman's theory of the substantial congruence between the omnibus
 Act and the thirty-six unpassed bills is weakened by the conclusions of another
 scholar, Thomas O'Brien Hanley. Hanley's thesis stated that the thirty-six bills
 were used by a committee of the General Assembly in drafting the omnibus Act.
 n143 However, Hanley's reasoning for why the thirty-six bills never became law
 weakens Bozman's theory of congruence between the omnibus Act and the thirty-six
 bills. Hanley believed that the thirty-six bills constituted a draft of the
 Proprietor's proposed code of laws for the colony. n144 The Proprietor's long
 and elaborate n145 draft code favored the Proprietor, not the people. n146 The
 committee rejected the draft in favor of the omnibus Act ordeining certain Laws
 for the Goverment of this Province later adopted by the General Assembly. n147
 That Act was a short and simple n148 compromise measure. n149 Thus, Hanley
 believed that  [*60]  the omnibus Act was intentionally different than the
 thirty-six unpassed bills.
 
   The general merits of Bozman's theory, that the omnibus Act is substantially
 congruent with the thirty-six unpassed bills, does not give much support to
 Schwartz's assumption that one of those bills, the Act for the Liberties of the
 People, was duly enacted. Bozman was one of the scholars who concluded that the
 Act for the Liberties of the People, like each of the thirty-six bills, n150 was
 not passed into law, but that the omnibus Act was. n151 However, Bozman wrote
 that the Act for the Liberties of the People was "explanatory" of the fourth
 section of the omnibus Act, n152 which provided that "the Inhabitants of this
 Province shall have all their rights and liberties according to the great
 Charter of England[.]" n153
 
 

    This bill [Act for the Liberties of the People] appears to have been
 intended, not only as a recognition of the extent of the common and statute law
 of England to this province, but also as a specification of those particular
 clauses of magna charta by which the "rights and liberties" of the inhabitants
 were to be secured to them. n154
 
 

    The Act for the Liberties of the People set forth rights from only one
 clause of the Magna Carta - Chapter 39 or what is now known as due process: "The
 Inhabitants of this Province ... Shall not be imprisoned nor disseissed or
 dispossessed of their freehold goods or Chattels or be out Lawed Exiled or
 otherwise destroyed fore judged or punished then according to the Laws of this
 province ... ." n155 However, as Bozman recognized, "the [omnibus] act, more
 properly perhaps, by a general clause, recognizes the whole of such parts of
 magna charta as relate to the 'rights and liberties' of the people." n156 Thus,
 that short section of the omnibus Act, far from being an abridgement of the
 longer Act for the Liberties of the People, was a full statement of the rights
 and liberties of Englishmen. Bozman himself noted that Lord Edward Coke wrote
 that the "magna charta was ... declaratory of the principal grounds of the
 fundamental laws of England ... ." n157
 
    [*61]  The omnibus Act ordeining certain Laws for the Goverment of this
 Province also contained other more specific sections providing for rights of
 religious freedom, equal justice, and grand and trial juries in serious criminal
 cases. n158 Thus, the 1639 Maryland Act for the Liberties of the People was not
 the "first American Bill of Rights."
 
   IV. CLAIMING THE MINE
 
 What was the "first American Bill of Rights," if Maryland's failed 1639 Act for
 the Liberties of the People was not? Does Maryland, nevertheless, get to keep
 the "bragging rights?"
 
   Recall that Bernard Schwartz called Maryland's 1639 Act "first," because it
 preceded the Massachusetts Body of Liberties (1641). n159 Also, remember that
 the Mayflower Compact (1620) and the Fundamental Orders of Connecticut (1639) do
 not qualify as the "first American Bill of Rights," because they did not contain
 guarantees of individual liberties. n160
 
   Maryland has two other candidates for the "first American Bill of Rights" - a
 1638 Act for the Liberties of the People n161 and the 1639 Act ordeining certain
 Laws for the Goverment of this Province. n162 These other acts can be considered
 as candidates for the "first American Bill of Rights."
 
   A. Was Maryland's 1638 Act for the Liberties of the People the "first
 American Bill of Rights?"
 
 In the 1638 session of the General Assembly, as well as in the 1639 session,
 there was an Act for the Liberties of the People. While only the title of the
 1638 Act is reported in the proceedings of the General Assembly, n163 several
 scholars have speculated that the text of the 1638 Act is much like the 1639
 Act. n164 The 1638 Act for the Liberties of the People, unlike the 1639 Act, was
 passed by the General Assembly. n165 However, the 1638 Act for the Liberties of
 the People was apparently vetoed by the Proprietor. n166
 
   Accordingly, the 1638 Act for the Liberties of the People was not the "first
 American Bill of Rights," as defined by Schwartz. n167 Because  [*62]  the Act
 was vetoed by the Proprietor, it was not fundamental law, n168 enforceable by
 the courts. n169 Because the text of the Act is lost, it cannot now be described
 as defining the rights protected. n170 If three scholars are correct, the 1638
 Act was not drawn up by a representative legislative assembly, n171 but was
 drawn up by the Proprietor in England. n172
 
   B. Was Maryland's 1639 Act Ordeining Certain Laws for the Goverment of this
 Province the "first American Bill of Rights?"
 
 At the same session of the General Assembly that the 1639 Act for the Liberties
 of the People failed to pass, n173 An Act ordeining certain Laws for the
 Goverment of this Province passed and was approved by the Proprietor. n174 This
 omnibus Act may well deserve the title, the "first American Bill of Rights."
 Indeed, some scholars have called it a "bill of rights." n175 Also, the Act's
 fourth section, by incorporating all the rights and liberties of the Great
 Charter of England, n176 may itself be a kind of "magna charta," n177 which in
 modern times at least is synonymous with "bill of rights." n178
 
   Schwartz does not mention the Act ordeining certain Laws for the Goverment of
 this Province, but the Act does seem to meet his description of the
 characteristics of a "bill of rights" in the American sense. n179
 
    [*63]
 
   1. Declaration of Rights in a Fundamental Law
 
 The omnibus Act was a declaration of rights in a fundamental law. n180 The Act
 was written. Its title, An Act ordeining certain Laws for the Goverment of this
 Province, suggests a basic code of laws. The form of the Act resembles the Magna
 Carta, a collection of statutes. n181 Indeed, the fourth section of the Act
 invoked the Magna Carta: "The Inhabitants of this Province shall have all their
 rights and liberties according to the great Charter of England[.]" n182 As we
 shall see, the Act defined rights. n183 While the Act was ordinary legislation,
 not part of a charter, constitution, or other foundation document, the rights it
 described were, either fundamental or basic. n184 Those rights were intended to
 be enforceable "law," not just a declaration of principles. n185
 
   However, the fundamentality of the Act was limited in two significant ways.
 First, the rights declared, like other provisions of the Act, were restricted in
 some way by the third section: "The Lord Proprietarie shall have all his rights
 and prerogatives." n186 Second, the Act was temporary, to continue only until
 the end of the next General Assembly, but not longer than three years. n187
 
   2. Definition of the Rights Protected
 
 The omnibus Act ordeining certain Laws for the Goverment of this Province
 defined what rights were protected. n188 The fourth section of the Act provided
 that "the Inhabitants of this Province shall have all their rights and liberties
 according to the great Charter of England." n189 That section recognized all of
 the parts of the Magna Carta relating to the rights and liberties of the people
 n190 or, perhaps, the rights and liberties of all the English constitutional
 documents, including the Petition of Right (1628). n191 Specifically, Schwartz
 wrote that the key provisions of the Magna Carta (1215) were Chapter 12, no
 taxation except by the national assembly, n192 and Chapter 39, trial by jury,
 prohibition of arbitrary arrest, full, free, speedy, and equal  [*64]  justice,
 and due process of law. n193 Other scholars have found additional rights in the
 Magna Carta, such as religious liberty in Chapter 1, n194 indictment by grand
 jury, n195 habeas corpus, n196 and prohibition on monopolies n197 in Chapter 39,
 and travel in Chapters 41 and 42. n198 Schwartz wrote that the Petition of Right
 (1628) declared the following rights as fundamental rights: a prohibition on
 taxes not laid by Parliament, habeas corpus, freedom from quartering of
 soldiers, and freedom from martial law. n199
 
   While the fourth section of the omnibus Act generally recognized the Magna
 Carta and, perhaps, the Petition of Right, other sections of the Act provided
 for more specific rights. The first section provided for religious freedom:
 "Holy Churches within this province shall have all her rights and liberties."
 n200 The fifth section, civil cases, and sixth section, criminal cases, required
 oaths of judges to administer "equall Justice to all persons without favour or
 malice of any one." n201 The sixth section also required indictment and trial by
 jury in serious criminal cases. n202 Thus, the rights protected were probably
 defined in more detail than they were in the 1639 Act for the Liberties of the
 People, although not in the detail of the later Massachusetts Body of Liberties
 (1641). n203
 
   3. Drawn Up by a Representative Assembly
 
 The omnibus Act ordeining certain Laws for the Goverment of this Province was
 drawn up by a representative legislative assembly; it was not a grant from an
 English monarch. n204 The Act was duly enacted. n205 Of course, like the 1639
 Act for the Liberties of the People, the omnibus  [*65]  Act was one of ordinary
 legislation, not a constitution drawn up by a specially elected convention and
 ratified by the people. n206 Additionally, the right of the General Assembly to
 legislate was granted, as a matter of grace, by royal charter. n207 The assembly
 included not only representatives, but all gentlemen and the members of the
 Proprietor's Council, and the Act was subject to the Proprietor's veto. n208
 
   4. Rights Enumerated Are Enforceable by the Courts
 
 The rights enumerated in the omnibus Act ordeining certain Laws for the
 Goverment of this Province were enforceable by the courts. n209 The rights in
 the Act were not just declarations of moral principles, but were "laws," which
 could be enforced by the courts, even against the government in a very
 rudimentary system of checks and balances and judicial review. n210 Of course,
 the enforceability of the Act was limited for several reasons. It was subject in
 some way to the Proprietor's prerogative. n211 Additionally, the Act was
 temporary in duration n212 and was just ordinary legislation, it was not in a
 constitution. n213
 
   Therefore, the Act ordeining certain Laws for the Goverment of this Province
 may well deserve the title, the "first American Bill of Rights."
 
   V. CONCLUSION
 
 Maryland may deserve the "bragging rights" for the "first American Bill of
 Rights." n214 That would not be, as Bernard Schwartz claimed, for the 1639
 Maryland Act for the Liberties of the People, n215 which never passed in the
 Maryland General Assembly. n216 An earlier 1638 Maryland Act for the Liberties
 of the People also does not qualify because, although it passed the General
 Assembly, it was vetoed by the Proprietor. n217 However, the "first American
 Bill of Rights" may be the 1639 Maryland omnibus Act ordeining certain Laws for
 the Goverment of this Province, which passed the General Assembly and was
 approved by the Proprietor. n218
 
    [*66]  The claim that the 1639 Maryland omnibus Act was the "first American
 Bill of Rights" is subject to some qualifications regarding the legislature, the
 general terms of the omnibus Act, and the specificity of the rights it
 guaranteed. The qualifications included: (1) that the legislature acted under a
 grant by royal charter; (2) that the General Assembly included not only
 representatives, but all gentlemen and the members of the Proprietor's Council;
 (3) that the Act was ordinary legislation, not a constitution drawn up by a
 specially elected convention and ratified by the people; n219 and (4) that the
 Act was subject to the Proprietor's veto. n220 According to the general terms of
 the Act, the rights guaranteed were restricted in some way by the Proprietor's
 prerogative; n221 and the Act was temporary in duration. n222 The specificity of
 the rights guaranteed in the Act was lacking in the fourth section, which
 recognized all the rights and liberties of the Magna Carta, n223 but did not
 provide specific rights as did other sections, which more specifically provided
 rights of religious freedom, equal justice, and indictment by grand jury and
 trial by jury in serious criminal cases. n224
 
   The Act ordeining certain Laws for the Goverment of this Province appears to
 satisfy Schwartz's description of the characteristics of a "Bill of Rights" in
 the American sense. n225 The Act was a declaration of rights in a fundamental
 law. n226 The Act defined what rights were protected. n227 It was drawn up by a
 representative legislative assembly, n228 and the rights enumerated were
 enforceable by the courts. n229
 
   Thus, because the 1639 Maryland Act ordeining certain Laws for the Goverment
 of this Province preceded the Massachusetts Body of Liberties (1641), the 1639
 Maryland Act does seem to be the "first American Bill of Rights." n230 Maryland
 gets to keep the "bragging rights."
 
 

 
FOOTNOTES:
 
   n1. 1 Bernard Schwartz, The Bill of Rights: A Documentary History 67 (1971)
 [hereinafter Schwartz].
 
 

   n2. See infra Part II.
 
 

   n3. See infra Part III.
 
 

   n4. See infra Part IV.
 
 

   n5. See infra notes 162, 164-73 and accompanying text.
 
 

   n6. See infra notes 163, 175-214 and accompanying text.
 
 

   n7. 1 Schwartz, supra note 1, at 4, 67. This two-volume work contains English
 and American documents and Schwartz's commentary. Schwartz's claim is repeated
 in his two derivative works - the same documents and commentary with
 illustrations in five volumes, Bernard Schwartz, 1 The Roots of the Bill of
 Rights 67 (1980), and just the commentary in an expanded and revised narrative
 form, Bernard Schwartz, The Great Rights of Mankind: A History of the American
 Bill of Rights 33 (1977).
 
 

   n8. 1 Schwartz, supra note 1, at 68 (citing 1 Archives of Maryland:
 Proceedings and Acts of the General Assembly of Maryland, 1637-1664, 41 (W. H.
 Browne, ed. 1883)).
 
 

   n9. Id. at 49-50.
 
 

   n10. Id. at 67.
 
 

   n11. In addition to the works in supra note 7, Schwartz has published several
 other books on constitutional law. Bernard Schwartz, Constitutional Law (Norman
 Redlich & John Attanasio eds., 3d ed. 1996); Bernard Schwartz, Freedom of the
 Press (1992); Bernard Schwartz, Constitutional Law: A Textbook (2d ed. 1979);
 Bernard Schwartz, From Confederation to Nation: The American Constitution,
 1835-1877 (1973); Bernard Schwartz, The Roots of Freedom: A Constitutional
 History of England (1967); Bernard Schwartz, A Commentary on the Constitution of
 the United States (1963); Bernard Schwartz, The Reins of Power: A Constitutional
 History of the United States (1963). He has also published many law review
 articles on constitutional law. See, e.g., Bernard Schwartz, A Presidential
 Strikeout, Federalism, RFRA, Standing, and a Stealth Court, 33 Tulsa L.J. 77
 (1997); Bernard Schwartz, Term Limits, Commerce, and the Rehnquist Court, 31
 Tulsa L.J. 521 (1996); Bernard Schwartz, "Brennan vs. Rehnquist"-Mirror Images
 in Constitutional Construction, 19 Okla. City U. L. Rev. 213 (1994); Bernard
 Schwartz, Curiouser and Curiouser: The Supreme Court's Separation of Powers
 Wonderland, 65 Notre Dame L. Rev. 587 (1990); Bernard Schwartz, National League
 of Cities v. Usery Revisited - Is the Quondam Constitutional Mountain Turning
 Out to Be Only a Judicial Molehill?, 52 Fordham L. Rev. 329 (1983).
 Additionally, he has published widely in areas related to constitutional law,
 such as the United States Supreme Court, legal history, civil rights, legal
 theory, legal biography, comparative law, the legal profession, and
 administrative law.
 
 

   n12. Schwartz taught 45 years at the New York University School of Law, where
 he was named Edwin D. Webb Professor of Law. Then, before his death in 1997, he
 taught five years at the University of Tulsa College of Law, as Chapman
 Distinguished Professor of Law. His main subjects were administrative law and
 constitutional law. Biography of Bernard Schwartz available at
 http://www.law.nyu.law.edu/magazines/autumn98/faculty/newsmakers.html (last
 visited May 16, 2002).
 
 

   n13. Robert S. Peck, The Bill of Rights & The Politics of Interpretation 39,
 49 n.4 (1992); see also Balt. Sun Co. v. Mayor of Balt., 359 Md. 653, 661, 755
 A.2d 1130, 1134-35 (2000); Telnikoff v. Matusevitch, 347 Md. 561, 585 n.22, 702
 A.2d 230, 242 n.22 (1997).
 
   Other scholars, citing Schwartz, have made a similar but less explicit claim.
 James MacGregor Burns & Stewart Burns, A People's Charter: The Pursuit of Rights
 in America 34, 480 n.34 (1991); 30 Charles Alan Wright & Kenneth W. Graham, Jr.,
 Federal Practice and Procedure 6344 n.777 (1997); Michael Kent Curtis,
 Historical Linguistics, Inkblots, and Life After Death: The Privileges or
 Immunities of Citizens of the United States, 78 N.C. L. Rev. 1071, 1094 & n.99
 (2000); Robert E. Riggs, Substantive Due Process in 1791, 1990 Wis. L. Rev. 941,
 963 & n.99 (1990); Rachel A. Van Cleave, A Constitution in Conflict: The
 Doctrine of Independent State Grounds and the Voter Initiative in California, 21
 Hastings Const. L.Q. 95, 99 & n.26 (1993); Maurice Portley, The Due Process
 Clause of the Fifth Amendment, 28 Arizona Attorney, at 13 & n.5 Dec. 28, 1991.
 
   Still, other scholars, not citing Schwartz, have made a claim like his.
 Colonial Origins of the American Constitution: A Documentary History 308 (Donald
 S. Lutz ed. 1998); Leonard W. Levy, Origins of the Bill of Rights 205 (1999);
 Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, 23-24 (Collier
 Books 1961); Gregory A. Stiverson, "To Maintain Inviolate Our
 Liberties"-Maryland and the Bill of Rights, in The Bill of Rights and the
 States: The Colonial and Revolutionary Origins of American Liberties 373
 (Patrick T. Conley & John P. Kaminski eds. 1992) (reporting on an act of an
 earlier assembly, but quoting the 1639 Act and referring to the Massachusetts
 Body of Liberties [1641] as two years later); The Constitutional Law Dictionary
 9 (Ralph Chandler et al. eds. 1985); Joyce A. McCray Pearson, The Federal and
 State Bills of Rights: A Historical Look at the Relationship Between America's
 Documents of Individual Freedom, 36 How. L.J. 43, 48 (1993).
 
   Additional scholars have cited the 1639 Maryland Act as though it was duly
 enacted. George W. Burnap, Life of Leonard Calvert, First Governor of Maryland
 173 (1846); 2 Foundations of Colonial America: A Documentary History 1182-83 (W.
 Keith Kavenagh ed. 1983); Donald S. Lutz, The Origins of American
 Constitutionalism 20, 61 (1988); Magna Carta in America 108 (David V. Stivison
 ed. 1993); Elihu S. Riley, A History of the General Assembly of Maryland,
 1635-1904, 9 (Kennikat Press 1972); 1 J. Thomas Scharf, History of Maryland from
 the Earliest Period to the Present Day 169 (Tradition Press 1967); Sources of
 Our Liberties: Documentary Origins of Individual Liberties in the United States
 Constitution and Bill of Rights 101 (Richard L. Perry ed. 1978) [hereinafter
 Sources of Our Liberties]); Gregory A. Mark, The Vestigial Constitution: The
 History and Significance of the Right to Petition, 66 Fordham L. Rev. 2153, 2178
 & n.96 (1998); William Michael Treanor, The Original Understanding of the
 Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 787 n.16
 (1995); William M. Wiecek, The Origins of the Law of Slavery in British North
 America, 17 Cardozo L. Rev. 1711, 1761 & n.192 (1996); Stephen E. Meltzer,
 Comment, Harmelin v. Michigan: Contemporary Morality and Constitutional
 Objectivity, 27 New Eng. L. Rev. 749, 761 & n.100 (1993).
 
 

   n14. See supra note 7 and accompanying text.
 
 

   n15. See generally 1 Schwartz, supra note 1.
 
 

   n16. See generally id.
 
 

   n17. Id. at 1204.
 
 

   n18. See supra notes 15-16 and accompanying text.
 
 

   n19. See Grant Gilmore, The Ages of American Law 9-10 (1977) ("The fact that
 American law dates from the end of the eighteenth century has served to
 differentiate our legal system not only from that of England but from those of
 the Western European countries with which we share a common intellectual
 tradition.").
 
 

   n20. 1 Schwartz, supra note 1, at 49.
 
 

   n21. Schwartz sets forth a document, Address to the Inhabitants of Quebec
 (1774), but that document is not a statement of rights by the inhabitants of
 Quebec, but an expression by the First Continental Congress of the fundamental
 rights of inhabitants of twelve of the thirteen colonies which later became the
 United States. 1 Schwartz, supra note 1, at 221-27.
 
 

   n22. Cf. The Encyclopedia of Native American Legal Tradition 29-31 (Bruce
 Elliott Johansen ed., 1998) ("Bill of Rights, Native American Precedents").
 Interestingly, Schwartz documents Thomas Paine, writing, somewhat whimsically,
 about an "Indian Bill of Rights" - principles of natural liberty for people in a
 state of nature without any government. 1 Schwartz, supra note 1, at 315
 (quoting Thomas Paine on a Bill of Rights, 1777, in The Complete Works of Thomas
 Paine (P.S. Foner ed. 1945)).
 
 

   n23. Susan Ford Wiltshire, Greece, Rome, and the Bill of Rights 4 (1992)
 ("Almost all of the provisions of the Bill of Rights reflect civic practices
 first developed by the Greeks and Romans.").
 
 

   n24. See The Human Rights Reader xv-xix, 1-72 (Micheline R. Ishay ed., 1997)
 for an essay and documents on the early origins of human rights from the Bible
 to the Middle Ages. Schwartz's omission of the Scriptures as a source for the
 Bill of Rights is noteworthy in light of three documents he includes in his
 history. First, pursuant to the Fundamental Orders of Connecticut (1639), the
 word of God requires that, where people are gathered together, a government be
 established according to God to maintain peace and union. 1 Schwartz, supra note
 1, at 62-63. Second, The Maryland Act Concerning Religion (1649) assumed that
 Maryland was a Christian commonwealth where religion and the honor of God should
 be considered first. Id. at 91. Third, the Boston Committee of Correspondence
 prepared a statement, The Rights of the Colonists and a List of Infringements
 and Violations of Rights (1772), which set forth the rights of colonists as
 Christians, found in the words of Jesus in the New Testament, as well as the
 rights of colonists under natural law and the rights of colonists as Englishmen
 under the common law of England. Id. at 200-03.
 
 

   n25. 2 Schwartz, supra note 1, at 1204.
 
 

   n26. Id.
 
 

   n27. See 1 Schwartz, supra note 1, at 4-16.
 
 

   n28. See id. at 17-21.
 
 

   n29. Id. at 40-46.
 
 

   n30. Id. at 67. An earlier document, the Fundamental Orders of Connecticut
 (1639), the first "enforceable, written Constitution drawn up by the people to
 be governed" in the American colonies, "did not contain any guarantees of
 individual liberties ... ." Id. at 62. Additionally, the Mayflower Compact
 (1620) was written earlier but is much less detailed. Id. at 62, 69.
 
 

   n31. Id. at 69.
 
 

   n32. Id. at 71.
 
 

   n33. Id. at 214.
 
 

   n34. Id. at 231, 233-34.
 
 

   n35. Id. at 374.
 
 

   n36. Id. at 385.
 
 

   n37. Id. at v, 3; 2 Schwartz, supra note 1, at 981-1204.
 
 

   n38. 1 Schwartz, supra note 1, at v.
 
 

   n39. Id. at v, vii-ix, 3-175.
 
 

   n40. See id. at 3-7, 17-19, 40-41.
 
 

   n41. Id. at 49-53; cf. id. at 162 (noting the "guarantees contained in
 Charters granted by the Crown" or "guarantees contained in instruments issued by
 Colonial Proprietors" as types of colonial antecedents of the federal Bill of
 Rights).
 
 

   n42. See id. at 50-51, 67-68. Three scholars have concluded that Maryland's
 1639 Act for the Liberties of the People was not "homegrown" in America, but was
 drawn up by the Proprietor in England and sent to Maryland. One scholar, citing
 no sources for that proposition, concluded that the Act was one of several sent
 over by the Proprietor for the 1639 session of the General Assembly. Michael
 James Graham, Lord Baltimore's Pious Enterprise: Toleration and Community in
 Colonial Maryland 1634-1724, 37 (1984). A second scholar, also citing no
 sources, theorized that the 1639 Act was one of thirty-six failed bills, which
 were probably drafted in England, but were too complex to suit the General
 Assembly. Bernard C. Steiner, Beginnings of Maryland, 1631-1639, 107 (J.M.
 Vincent et. al. eds., 1903). The third scholar, also citing no sources for the
 proposition, apparently concluded that all of the thirty-six bills were not
 passed, but were reported in full in the proceedings of the 1639 General
 Assembly, and were the Proprietor's draft of a code of laws first presented to
 the 1638 legislative session. Thomas O'Brien Hanley, Their Rights and Liberties:
 The Beginnings of Religious and Political Freedom in Maryland 88-94 (1959). The
 proceedings of the 1638 General Assembly do not show that the Act for the
 Liberties of the People was drawn up by the Proprietor. Those proceedings
 indicate that twelve draft laws, not titled or reported, transmitted by the
 Proprietor, were read and debated a first time, read and debated a second time,
 put to vote without a third reading, but failed to pass. 1 Archives of Maryland:
 Proceedings and Acts of the General Assembly of Maryland 6-9 (W. H. Browne, ed.
 1883) [hereinafter 1 Archives]. The General Assembly agreed to reconsider these
 twelve draft laws later in the session, when they were read a first time, a
 second time, and were voted to be considered separately on the third reading.
 Id. at 11. However, the proceedings do not make clear the final disposition of
 the Proprietor's draft laws. Id. A letter dated April 25, 1638 from the Governor
 to the Proprietor indicates that the draft laws failed to pass. Narratives of
 Early Maryland 1633-1684, 156 (Clayton Colman Hall ed., 1910). On the other
 hand, a bill "for the liberties of the people," titled but not reported, later
 was read a first time, read a second time, and read a third time and passed. 1
 Archives, supra, at 15, 20. However, the 1638 Act for the Liberties of the
 People was apparently vetoed by the Proprietor on the ground that only he and
 his Governor had the power to propose laws. See 3 Archives of Maryland:
 Proceedings of the Council of Maryland 1636-1667, 50-51 (William Hand Browne ed.
 , 1885). I do not believe that Hanley's internal evidence that the 1639 Act for
 the Liberties of the People was drawn up by the Proprietor is very persuasive.
 Hanley concluded that the Proprietor narrowed the colonists' rights under the
 colonial Charter by tying them to English statutes (some of which violated
 common law rights), as well as to English common law, and by saving to the
 Proprietor his own "rights and prerogatives." Hanley, supra, at 95-96; see also
 infra Part III.B.2.c. However, the Act provided for the inhabitants of the
 Province, not all the statute law and common law of England, but those laws
 providing rights for Englishmen. See supra text accompanying note 8 for the text
 of the Act for the Liberties of the People. Too, the General Assembly's omnibus
 Act ordeining certain Laws for the Goverment of this Province, which, according
 to Hanley, was prepared by a committee of the General Assembly to improve on the
 Proprietor's draft code, see Hanley, supra, at 94-96, also saved to the
 Proprietor "his rights and prerogatives." 1 Archives, supra, at 83. Furthermore,
 the General Assembly regularly considered bills for the liberties of the people,
 not only in the 1638 and 1639 sessions, when the Proprietor was regularly
 initiating legislation, but also in later sessions, when the initiative was
 ordinarily exercised by the General Assembly itself. See, e.g., 1 Archives,
 supra, at 94 (1640), 132-36 (1642), 224 (1647-48), 275 (1650). Indeed, the
 introduction of such bills might seem to be of more interest to the freemen of
 the General Assembly, claiming their liberties, than to the Proprietor, against
 whom those rights typically would be claimed.
 
 

   n43. See supra notes 18-20 and accompanying text.
 
 

   n44. See, e.g., 1 Schwartz, supra note 1, at 3.
 
 

   n45. Id. at 49-51, 67.
 
 

   n46. Id. at 50.
 
 

   n47. Id. at 180, 181.
 
 

   n48. See id. at 67-68.
 
 

   n49. See id. at 179-81.
 
 

   n50. Id. at 179-80.
 
 

   n51. See id. at 179.
 
 

   n52. Id. at 53-54; see generally id. at 4-7, 17-19, 22-23, 40-41, 49-52, 62,
 67-71.
 
 

   n53. Id. at 67.
 
 

   n54. Id. at 181 (emphasizing the importance of written law, not just
 unwritten principles).
 
 

   n55. Naming of "bills of rights" can be significant. See supra notes 26-37
 and accompanying text.
 
 

   n56. See infra Part III.A.3.b.
 
 

   n57. See 1 Schwartz, supra note 1, at 67-68 (noting a later failed attempt by
 the Maryland General Assembly to adopt the Magna Carta). An earlier act for the
 liberties of the people, the text of which is lost, passed at the January-March
 1638 session of the legislature, was apparently vetoed by the Proprietor, who
 believed that only he and his Governor had the power to propose laws. See supra
 note 42. The attempts by Maryland colonists to extend their rights as Englishmen
 were later comprehensively set forth in a committee report, approved by the
 Lower House of the General Assembly on October 18, 1723. 34 Archives of
 Maryland: Proceedings and Acts of the General Assembly of Maryland October,
 1720-October, 1723, 661-79 (Clayton Colman Hall ed., 1914) [hereinafter 34
 Archives].
 
 

   n58. See 1 Schwartz, supra note 1, at 50, 95, 125, 179-81, 229, 234
 (distinguishing charters, constitutions, and other foundation documents from
 ordinary legislation).
 
 

   n59. Id. at 67.
 
 

   n60. Id.
 
 

   n61. See supra text accompanying note 8 for the Act for the Liberties of the
 People (1639). Cf. 1 Schwartz, supra note 1, at 18 (noting that the English
 Petition of Right of 1628, enacted as a statute, was not weakened by any saving
 of prerogative right).
 
 

   n62. See supra note 8 and accompanying text for the Act for the Liberties of
 the People (1639).
 
 

   n63. See infra Part III.B.2.
 
 

   n64. 1 Schwartz, supra note 1, at 67.
 
 

   n65. Id.
 
 

   n66. Id. at 68.
 
 

   n67. Id. This provision of the Magna Carta was its most important provision.
 Cf. Md. Const., Decl. of Rts. art. 24 (1981) (securing the right of due process
 in Maryland).
 
 

   n68. See 1 Schwartz, supra note 1, at 67; cf. id. at 70 (noting that The
 Massachusetts Body of Liberties of 1641 was a code of fundamental laws because
 it resembled the Magna Carta); id. at 180-81 (noting that the new state
 constitutions generally contained "fundamental laws" or "higher laws").
 
 

   n69. Id. at 69, 71.
 
 

   n70. Id. at 67; infra notes 72, 76-77 and accompanying text.
 
 

   n71. See generally 1 Schwartz, supra note 1, at 50, 180.
 
 

   n72. See 1 Archives, supra note 42, at 82; see also id. at 8, 10, 12, 14
 (providing the proceedings of the January-March 1638 General Assembly)
 
 

   n73. See generally 1 Schwartz, supra note 1, at 30, 180, 231, 251.
 
 

   n74. See id. at 337 (noting that the proposed Massachusetts constitution of
 1778 was drawn up by the legislature but rejected by the people); see also id.
 at 62, 69 (discussing the Mayflower Compact of 1620, a covenant of the people);
 id. at 62 (noting that the Fundamental Orders of Connecticut of 1639 was a
 constitution drawn up by the people to be governed).
 
 

   n75. See supra note 71 and accompanying text.
 
 

   n76. See supra note 39 and accompanying text.
 
 

   n77. 1 Archives, supra note 42, at 27-31 (listing the names of
 representatives elected to the General Assembly); cf. 1 Schwartz, supra note 1,
 at 169 (noting that the Pennsylvania Charter of Privileges of 1701 excluded
 members of the Proprietor's Council from direct participation in legislation).
 
 

   n78. See 1 Archives, supra note 42, at 31 (noting Lord Baltimore's letter,
 dated August 21, 1638, to his brother the Governor); see also 1 Schwartz, supra
 note 1, at 50 (noting that colonial laws were subject to the overriding
 authority of the British government); id. at 163 (discussing the 1684 veto of
 New York Charter of Libertyes and Priviledges of 1683 by the Duke of York). But
 cf. id. at 251 (noting that with independence brought legal authority to draw up
 constitutions and bills of rights free of any grant of authority from the crown
 and free of British prerogative).
 
 

   n79. Cf. 1 Schwartz, supra note 1, at 181 (noting that the first state
 constitutions were binding); id. at 403 (noting that the federal Bill of Rights
 was enforceable by the courts). But cf. id. at 23 (noting that the proposed
 English Agreement of the People of 1649 was written in "hortatory terms"); id.
 at 53-54 (discussing the "bare declaration" of colonist's rights in the Virginia
 Charter of 1606).
 
 

   n80. See id. at 67-68. The evidence (in commissions and instructions to
 judges and in citations to criminal and civil judicial proceedings) that English
 law was applied in Maryland colonial courts, was later comprehensively set forth
 in a committee report, approved by the Lower House of the General Assembly on
 October 18, 1723. See 34 Archives, supra note 57, at 673-79.
 
 

   n81. Cf. 1 Schwartz, supra note 1, at 4-7 (discussing the Magna Carta as an
 early attempt to set out fundamental rights assumed to the people as "above the
 state"). The Magna Carta was the product of a conflict between King John and his
 barons. Id. at 4-5. The 1639 Maryland Act was the product of a conflict between
 the Proprietor and his colonists over who had the primary role in initiating
 legislation. Id. at 67.
 
 

   n82. See id. at 182-83 (noting that the doctrine of Dr. Bonham's Case in 1610
 was that acts of the government, contrary to law, were void); cf. id. at 23, 403
 (noting that the framers established the systems of checks and balances and
 judicial review in American state and federal constitutions).
 
 

   n83. See supra note 61 and accompanying text.
 
 

   n84. See supra note 62 and accompanying text.
 
 

   n85. See supra note 55 and accompanying text.
 
 

   n86. Cf. 1 Schwartz, supra note 1, at 125 (noting that the Concessions and
 Agreements of West New Jersey of 1677 came "very close" to the seminal notion of
 a binding, written constitution); id. at 179 (discussing revolutionary
 declarations and constitutions generally); id. at 182 (discussing practicality
 and enforceability of the federal Bill of Rights); id. at 214 (discussing effort
 by colonists to embody their rights in the Declaration and Resolves of the First
 Continental Congress of 1774); id. at 229 (noting that the Resolution of the
 Second Continental Congress of 1776 for the first time placed individual rights
 upon a firm constitutional foundation, vested with the status of supreme law);
 id. at 403 (noting that state and federal constitutions were adopted as the
 supreme law in the different states).
 
 

   n87. See infra notes 93-159 and accompanying text.
 
 

   n88. 1 Archives, supra note 42, at 25-39 (providing the debates from the
 Assembly Proceeding), id. at 41 (providing the text of the Act for the Liberties
 of the People).
 
 

   n89. Id. at 27-32.
 
 

   n90. See id. at lvii; see also 28 Archives of Maryland: Proceedings of the
 Council of Maryland 1732-1753 (William Hand Browne ed., 1908) [hereinafter 28
 Archives].
 
 

   n91. 28 Archives, supra note 90, at xi, 550 (quoting Governor Ogle's letter
 notifying the Council of the new law); An Act for Regulating the Commencement of
 the Year, and for the Correcting the Calendar Now in Use 1751, 24 Geo. 2, c. 23,
 1 (Eng.). The Calendar Act was expressly applicable to British dominions in
 America. Id.
 
 

   n92. See Carl N. Everstine, The General Assembly of Maryland 1634-1776, 30-31
 n.8 (1980).
 
 

   n93. 1 Schwartz, supra note 1, at 67.
 
 

   n94. Id.
 
 

   n95. Id. at 68.
 
 

   n96. 1 Archives, supra note 42, at 41.
 
 

   n97. Id. For the text of the Act for the Liberties of the People, see supra
 text accompanying note 8.
 
 

   n98. 1 Archives, supra note 42, at xxvi; see also id. at 40-84 (setting forth
 the thirty-eight acts).
 
 

   n99. Id. at 548.
 
 

   n100. Id. at 544.
 
 

   n101. See 34 Archives, supra note 57, at 663. The Act is recorded as "made
 the 19th day of March 1638 ... ." Id. The Act, noted in the committee report,
 was, except for the absence of the last clause setting forth the expiration
 date, substantially the same as the Act set forth above. See supra note 8 and
 accompanying text. March 19, 1638 is the last day of the legislative session,
 after which the Act was reported with other acts of the session in the book of
 laws. 1 Archives, supra note 42, at 39-84. March 19, 1638 (old style) in 1638 or
 1723 would likely be called March 19, 1639 (new style) today. See supra notes
 88-92 and accompanying text.
 
 

   n102. See supra note 13.
 
 

   n103. See supra note 13.
 
 

   n104. See supra note 13.
 
 

   n105. 1 Archives, supra note 42, at 34.
 
 

   n106. Id. at 37.
 
 

   n107. Id. at 32-33. The requirement of three readings is assumed. The
 document setting forth that part of the rules of order for the 1639 session is
 blank, indicating that the words were torn away in the original. Id. at 33; see
 also id. at lvii (noting that the blanks indicate that words were torn away in
 the original). However, the fragment of the document remaining - "once read,"
 [blank] then "ingrossed or utterly rejected," and later "put to the question" -
 seems consistent with a requirement of three readings, required in sessions of
 the General Assembly both before the 1638 session, id. at 11, and after the 1640
 session, id. at 91, the session of 1639.
 
 

   n108. Id. at 39.
 
 

   n109. Id.
 
 

   n110. Id. at 82-84. The date has been altered to reflect the "New Calendar"
 date. See supra note 88-92 and accompanying text; cf. 1 Archives, supra note 42,
 at 32, 81-82. "An Act For the Establishing the house of Assembly and the Laws to
 be made therein" was passed after one reading on February 25, the first day of
 the 1639 session, presumably before the rules of order, requiring three
 readings, were adopted. See supra note 107. Apparently, these two acts were the
 only ones enacted at the 1639 session.
 
 

   n111. See infra notes 175-214 and accompanying text.
 
 

   n112. 1 Archives, supra note 42, at 122.
 
 

   n113. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins
 350 (Neil H. Cogan ed., 1997).
 
 

   n114. 2 John Leeds Bozman, The History of Maryland, its First Settlement in
 1633, to the Restoration, in 1660, 115-17 (reprint 1968) (1837); William Hand
 Browne, George Calvert & Cecilius Calvert 101-03 (1890) [hereinafter Browne,
 George Calvert]; Everstine, supra note 92, at 49, 63-64; Hanley, supra note 42,
 at 94-96, 108; J. Moss Ives, The Ark and the Dove: The Beginning of Civil and
 Religious Liberties in America 161-64 (1936); David W. Jordan, Foundations of
 Representative Government in Maryland 1632-1715, 43 (1987); 7 Laws of Maryland
 from the End of the Year 1799, app. (William Kilty et. al. ed., 1799-1800);
 Steiner, supra note 42, at 106-07; see also William Hand Browne, Maryland: The
 History of a Palatinate 45-47 (rev. ed. 1912) [hereinafter Browne, Maryland].
 
 

   n115. William T. Brantly, The English in Maryland, 1632-1691, in 3 Narrative
 and Critical History of America 530 (Justin Winsor ed., 1884); J.A. Doyle, The
 English in America: Virginia, Maryland, and the Carolinas 395 (photo. reprint
 1969) (1882); Susan Rosenfeld Falb, Advice and Ascent: The Development of the
 Maryland Assembly 1635-1689, 424 (1986); Theodore C. Gambrall, Studies in the
 Civil, Social and Ecclesiastical History of Early Maryland 98 (1893); 1 James
 Grahame, The History of the United States of North America from the Plantation
 of the British Colonies Till Their Assumption of National Independence 310
 (1846); Bradley T. Johnson, The Foundation of Maryland and the Origin of the Act
 Concerning Religion of April 21, 1649, 50-51 (1883); C. Ellis Stevens, Sources
 of the Constitution of the United States 18 (2d ed. 1987); 1 Joseph Story,
 Commentaries on the Constitution of the United States 107 (reprint 1994) (5th
 ed. 1891); George Boniface Stratemeier, Thomas Cornwaleys Commissioner and
 Counsellor of Maryland 83 (1922). See generally Thomas W. Griffith, Sketches of
 the Early History of Maryland 7-8 (1821).
 
 

   n116. See supra notes 96-104 and accompanying text.
 
 

   n117. See supra notes 105-16 and accompanying text.
 
 

   n118. See supra notes 96-97 and accompanying text.
 
 

   n119. See 1 Archives, supra note 42, at 37.
 
 

   n120. See supra note 98 and accompanying text.
 
 

   n121. See generally 1 Archives, supra note 42, at 25 (titling the 1639
 session the proceedings and acts of the General Assembly of Maryland).
 
 

   n122. See, e.g., id. at 32, 34, 36-39.
 
 

   n123. Id. at 32 (providing the text of the "act touching the Payment of
 Tobacco's"); see also id. at 6-7: "Acts" of the Lord Proprietor's draft of laws
 were debated at the 1638 session of the General Assembly.
 
 

   n124. See supra note 99 and accompanying text.
 
 

   n125. 1 Archives, supra note 42, at 40-81.
 
 

   n126. Id. at 39 (noting the memorandum of John Lewger, Secretary of the
 Province).
 
 

   n127. Id. at 547-49 (noting the index to titles of bills passed).
 
 

   n128. Browne, George Calvert, supra note 114, at 101; see also Browne,
 Maryland, supra note 114, at 45-47.
 
 

   n129. See supra note 101 and accompanying text.
 
 

   n130. 1 Archives, supra note 42, at 39. The proceedings of that day, the last
 day of the 1639 session, are followed by the memorandum of John Lewger,
 Secretary of the Province, which read that the thirty-six bills which followed,
 "were engrossed to be read the third time but were never read nor passed the
 house ... ." Id.; see also id. at 33-34 (noting the first reading of the Bill
 for the Liberties of the People as February 25, 1638); id. at 37 (noting the
 second reading of the Bill as March 6).
 
 

   n131. 34 Archives, supra note 57, at 663-67.
 
 

   n132. Id. at 667-68. For the due enactment of that law, see supra notes
 109-10, 112 and accompanying text.
 
 

   n133. See supra notes 13, 102-04 and accompanying text.
 
 

   n134. See supra notes 114-16 and accompanying text.
 
 

   n135. See supra notes 105-08 and accompanying text.
 
 

   n136. Bozman, supra note 114, at 106; see also Jordan, supra note 114, at 43
 (noting that the omnibus Act "incorporated the substance of eleven of the
 earlier bills"); cf. Hanley, supra note 42, at 89-97, 108 (stating that a
 committee of the General Assembly used a draft of the Proprietor's long and
 elaborate code of laws, proposed at the 1638 session, and again at the 1639
 session, in drafting their own short and simple law, duly enacted in 1639 as An
 Act ordeining certain Laws for the Goverment of this Province).
 
 

   n137. Bozman, supra note 114, at 106-07, 110-11, 139, 141, 145, 149, 157.
 
 

   n138. Id. at 106, 145-46; see also id. at 120, 157.
 
 

   n139. Id. at 107; see also supra note 139 and accompanying text. Indeed, one
 clause of the omnibus Act makes "an express reference to one of the thirty-six
 bills before mentioned ... entitled 'An act for fees.'" Bozman, supra note 114,
 at 145.
 
 

   n140. See Bozman, supra note 114, at 106-07, 157; see generally id. at
 106-160.
 
 

   n141. Id. at 111-12, 140-41.
 
 

   n142. Id. at 106, 141.
 
 

   n143. Hanley, supra note 42, at 79-108.
 
 

   n144. Id. at 88-96; see also supra note 42.
 
 

   n145. Hanley, supra note 42, at 94, 96.
 
 

   n146. Id. at 93-95; see also id. at 89-92.
 
 

   n147. 2 Bozman, supra note 114, at 106.
 
 

   n148. Id. at 96, 108.
 
 

   n149. See id. at 91-93, 97; see also Steiner, supra note 42, at 107 (noting
 that the Governor "accepted a short but comprehensive measure," after it became
 clear that the thirty-six complex bills would not pass). The compromise on the
 omnibus Act, without an official explanation for the failure of the thirty-six
 bills, may also reflect a need for speedy action. The 1639 session of the
 General Assembly, like the 1638 session before it, adjourned in late March. 1
 Archives, supra note 42, at 22-23 (stating that the General Assembly read the
 bill for the fourth time on March 24, 163[8]); id. at 39 (stating that the
 General Assembly was to read the bill for the third time, but the bill was never
 read nor passed by the house on March 19, 163[9]). That time would have been
 near the New Year under the Julian calendar (March 25), the vernal equinox, and
 the beginning of Spring, which must have been a time for farmer legislators to
 think about planting. See supra note 90 and accompanying text.
 
 

   n150. Bozman, supra note 114, at 106 & n. + .
 
 

   n151. See supra notes 114-15 and accompanying text.
 
 

   n152. Bozman, supra note 114, at 115.
 
 

   n153. 1 Archives, supra note 42, at 83.
 
 

   n154. Bozman, supra note 114, at 116.
 
 

   n155. For the Act for the Liberties of the People, see supra text
 accompanying note 8.
 
 

   n156. Bozman, supra note 115, at 116.
 
 

   n157. Id. at 117 (citing 2 Institutes 1 Bl. Com. 127 proem); cf. Sources of
 Our Liberties, supra note 13, at 9 ("Magna Carta ... came to be regarded by the
 colonists as a generic term for all documents of constitutional
 significance.").
 
 

   n158. See infra notes 201-03 and accompanying text.
 
 

   n159. See supra notes 30-31 and accompanying text.
 
 

   n160. See supra note 30.
 
 

   n161. See supra note 42.
 
 

   n162. See supra note 42; see also supra notes 109-12, 137-59 and accompanying
 text.
 
 

   n163. See supra note 42; see also infra note 166 and accompanying text.
 
 

   n164. Everstine, supra note 92, at 48-49; Bozman, supra note 114, at 115.
 
 

   n165. 1 Archives, supra note 42, at 15, 20.
 
 

   n166. Everstine, supra note 92, at 48-49; Brantly, supra note 115, at 529;
 Doyle, supra note 115, at 299; Bozman, supra note 114, at 67; see also supra
 note 42.
 
 

   n167. See supra notes 49-52 and accompanying text.
 
 

   n168. Cf. supra notes 53-63 and accompanying text (discussing the 1639 Act
 for the Liberties of the People).
 
 

   n169. Cf. supra notes 79-87 and accompanying text.
 
 

   n170. Cf. supra notes 64-69 and accompanying text.
 
 

   n171. Cf. supra notes 73-78 and accompanying text.
 
 

   n172. See supra note 42.
 
 

   n173. See supra notes 105-08 and accompanying text. But see supra notes 93-95
 and accompanying text (noting that Schwartz assumed that the Act passed); supra
 notes 96-101 and accompanying text (noting evidence that the Act passed), supra
 notes 13, 102-04 and accompanying text (discussing the scholarly support for
 passage of the Act).
 
 

   n174. See supra notes 109-10 and accompanying text.
 
 

   n175. Browne, George Calvert, supra note 114, at 102; Browne, Maryland, supra
 note 114, at 46-47; Ives, supra note 114, at 162-64; Johnson, supra note 115, at
 50.
 
 

   n176. 1 Archives, supra note 42, at 83.
 
 

   n177. Story, supra note 115, at 74; see also Johnson, supra note 115, at 50
 (calling the act "the Magna Charta, the Petition of Right, and the Bill of
 Rights, all in one statute").
 
 

   n178. Encarta World English Dictionary 1085 (1999) (defining "bill of rights"
 as "a document that recognizes or guarantees rights, privileges, or
 liberties").
 
 

   n179. See supra notes 49-52 and accompanying text.
 
 

   n180. Cf. supra notes 53-63 and accompanying text (discussing the 1639 Act
 for the Liberties of the People).
 
 

   n181. See supra note 140 and accompanying text.
 
 

   n182. 1 Archives, supra note 42, at 83.
 
 

   n183. See infra notes 189-204 and accompanying text.
 
 

   n184. See infra notes 190-203 and accompanying text.
 
 

   n185. See infra notes 210-14 and accompanying text.
 
 

   n186. 1 Archives, supra note 42, at 83.
 
 

   n187. Id. at 84. But cf. supra note 112 and accompanying text (discussing the
 revival of portions of the omnibus Act by the 1642 session of the General
 Assembly).
 
 

   n188. Cf. supra notes 64-69 and accompanying text (discussing the 1639 Act
 for the Liberties of the People).
 
 

   n189. 1 Archives, supra note 42, at 83.
 
 

   n190. See supra note 157 and accompanying text.
 
 

   n191. See supra note 158 and accompanying text.
 
 

   n192. 1 Schwartz, supra note 1, at 6.
 
 

   n193. Id. at 6-7 (quoting Edward Coke, The Second Part of the Institutes of
 the Lawes of England 2-4 (reprint 1979) (1642)).
 
 

   n194. See Edward Coke, The Second Part of the Institutes of the Lawes of
 England 2-4 (reprint 1979) (1642).
 
 

   n195. Id. at 46, 50.
 
 

   n196. Id. at 53, 55.
 
 

   n197. Id. at 47.
 
 

   n198. See 1 Frederick Pollock & Frederic William Maitland, The History of
 English Law Before the Time of Edward 173 (reprint 1911) (2d ed. 1898).
 
 

   n199. See 1 Schwartz, supra note 1, at 18-21.
 
 

   n200. 1 Archives, supra note 42, at 83; see also Steiner, supra note 42, at
 107.
 
 

   n201. 1 Archives, supra note 42, at 83. See generally Johnson, supra note
 115, at 56-57. While the phrase, "equall Justice," is expressly stated only in
 the fifth section, its omission from the sixth section may be inadvertent,
 because both sections include the succeeding, largely synonymous phrase,
 "without favour or malice of any one." 1 Archives, supra note 42, at 83.
 
 

   n202. 1 Archives, supra note 42, at 83.
 
 

   n203. Cf. supra notes 64-69 and accompanying text (comparing the 1639 Act for
 the Liberties of the People with the 1641 Massachusetts Body of Liberties).
 
 

   n204. Cf. supra notes 70-78 and accompanying text (discussing the 1639 Act
 for the Liberties of the People).
 
 

   n205. See supra notes 109-10 and accompanying text.
 
 

   n206. See supra notes 73-74 and accompanying text.
 
 

   n207. See supra notes 75-76 and accompanying text.
 
 

   n208. See supra notes 77-78 and accompanying text.
 
 

   n209. Cf. supra notes 79-87 and accompanying text (discussing the 1639 Act
 for the Liberties of the People).
 
 

   n210. See supra notes 79-82 and accompanying text.
 
 

   n211. See supra note 187 and accompanying text.
 
 

   n212. See supra note 188 and accompanying text.
 
 

   n213. See supra notes 181-85 and accompanying text.
 
 

   n214. See supra notes 7-87 and accompanying text.
 
 

   n215. See supra notes 7-13 and accompanying text.
 
 

   n216. See supra notes 93-158 and accompanying text.
 
 

   n217. See supra notes 162, 164-73 and accompanying text.
 
 

   n218. See supra note 175 and accompanying text.
 
 

   n219. See supra notes 207-09 and accompanying text.
 
 

   n220. See supra note 209 and accompanying text.
 
 

   n221. 1 Archives, supra note 42, at 83; see supra note 187 and accompanying
 text.
 
 

   n222. 1 Archives, supra note 42, at 84; see supra note 188 and accompanying
 text.
 
 

   n223. 1 Archives, supra note 42, at 83; cf. supra notes 191-200 and
 accompanying text (noting that invocation of the rights and liberties of the
 Magna Carta, generally, may have meant certain rights, specifically).
 
 

   n224. See supra notes 201-03 and accompanying text.
 
 

   n225. See supra notes 39-87 and accompanying text.
 
 

   n226. See supra notes 181-86 and accompanying text.
 
 

   n227. See supra notes 189-203 and accompanying text.
 
 

   n228. See supra notes 205-06 and accompanying text.
 
 

   n229. See supra notes 210-11 and accompanying text.
 
 

   n230. See supra notes 30-32, 160 and accompanying text.
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