Founding Documents of Liberty

Copyright 2009, David Trumbull

The American political system of liberty under law traces its origins in an unbroken train of written texts going back over 3,000 years (and for uncounted time in oral traditions and laws). It is a Mediterranean legal heritage that began with God's ancient people in Israel, with the ancient Greek philosophers, and with ancient Roman state-craft. All three traditions blended together in the Christian Roman Empire and developed into a systematic governing scheme that came to cover all of Europe, including that extreme north-west outpost, the British Isles.

By the 13th century England was contributing to this organic body of law and custom and it is the particularly British experience of Western law and political thought that forms the basis for American liberty.

It is a system that is ever open to new insights, whether from external sources or developing organically within the tradition, but in all its development over the millenia there has never been a rupture with the past nor with the principals set forth in these historic documents.

The unbroken written record of the passing on and development of our system of liberty under law–

The Ten Commandments handed on by Moses, 13th Cen. B.C.

    We begin with the familiar biblical text that is the ulimate written foundation for all law. Modern scholars point to earlier listing of laws written in the Near and Middle East, which may have influenced the final editing of our Ten Commandments, but that misses the point, for it is this code, and this one alone, that has been, without interruption, acknowledged as binding from its framing until now and used by later students of law as a fundational document. As the inscription over the front door of the City Hall of Cambridge, Massachusetts (A.D. 1888) reads–
    God has given Commandments unto Men. From these Commandments Men have framed Laws by which to be governed. It is honorable and praiseworthy to faithfully serve the people by helping to administer these Laws. If the Laws are not enforced, the People are not well governed.

    By laying out man's duty to God and to fellow-man, the Ten Commandments prescribes an orderly human society, consistent with the order of God's universe, within which human liberty can flourish free of the fear that the stronger, shrewder, or better-connected will exploit the weaker, duller, or less-favored.

The Hebrew Prophet Samuel warns against the evils of Anarchy and Tyranny, 11th Cen. B.C.

    In a passage from the Book of Judges, the dissolution of Israelite society as theft, idolatry, lust, and greed, unbridled lead to murder, rape, and civil war is chronicled with the incidents, each more horrific than the last, punctuated with the refrain
    In those days there was no king in Israel: every man did that which was right in his own eyes.
    While in a cautionary passage from the First Book of Samuel, we read what will be the
    Manner of the king that shall reign over those who would have a king.
    The central question of politcal theory is that of framing a civil society ordered, consonant with the moral order of the universe and with the greatest possible freedom for the recognition of each unique individual man and woman. While order and freedom are often falsely set against each other as incompatible goals with compromise vainly praised as the resolution of the conflict, that is a grave error. The biblical sages, as the Greek philosophers and their Roman readers and interpretors, understood that man is free of the oppression by fallen men and of his own concupiscience only when in harmony with natural law.


Solon 594/3 B.C.

Hebrew prophets 8th through 6th ce. B.C.

Athenian Democracy, 5th cen. B.C.

    From the Greeks we get both the word and the political principal democracy. Athens was not the only ancient Greek city-state to adopt a democratic form of government, but it is the one best documented and most successful; at that the success was limited in duration and was interrupted with swings between mob mis-rule and tyranny that was representative in name only. The high-water of Athenian democracy was the so-called Pentecontaetia, the roughly 50-year period from 479 to 435 B.C. Athenian democracy's written record is not so much a constitution as a large body of first-class literature grappling with polity–among them The Pelopponesian War by Thucydides and The Republic by Plato. Perhaps the most succinct statement in favor of democracy by any ancient Athenian is that of Pericles (The Pelopponesian War, II, 37)
    Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition. The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. Against this fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured, whether they are actually on the statute book, or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace.

The Twelve Tables of Roman Laws, c. 451-450 B.C.

    Greek thought spread to Italy, by means trade routes and Greek colonies in Sicily and in the south of the "boot," and, just as democracy was reaching its high-water in Athens, the Romans threw off the last of their hereditary kings and instituted res publica a civil society based on participatory self-governing by all free male citizens. The Roman Republic lasted in fact from 509 B.C. until 31 B.C. and in name far longer. Of its earliest, and never legally nullifed legal code, the Twelve Tables, a Roman orator and statesman wrote some 400 years after their erection as the basis for Roman civil law
    Discebamus enim pueri XII ut carmen necessarium, quas iam nemo discit "We learned the Twelve Tables when schoolboys, as an indispensable lesson (literally "necessary song"), which, by–the–bye, no one attends to now–a–days)."–M.T. Cicero (106-43 B.C.), de Legibus (On the Laws).

Justinian's Institutes, A.D. 535.

    A thousand years after their erection, the Twelve Table continued to be a reference point from which law was developed when the laws of the Roman Empire were codified under the Christian Emperor Justinian in a massive undertaking known as the Corpus Iurus Civilis [Body of Civil Law]. According to the Catholic Encyclopedia /1/:
    It would be difficult to exaggerate the importance of this "Corpus". It is the basis of all canon law (ecclesia vivit lege romana), and the basis of civil law in every civilized country.
    Justinian was also responsible for publishing the Institutes, a sort of textbook for lawyers-in-training. In the Institutes we find explication of the principles that are expressed as specific laws in the Corpus and the rest of the legal legacy of Justinian. English Common Law was developed on the foundation of Justinian and it it through that source that American law traces itself back to Justinian. In the State of Lousiana, where civil law is based on the Napoleonic Code, rather than English Common Law, the connection to the legal code of Justinian is even stronger.

Magna Carta, A.D. 1215.

We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta... –Chief Justice Earl Warren delivering the opinion of the U.S. Supreme Court in the matter of Klopper v. North Carolina, March 13, 1967.

Mayflower Compact, A.D. 1620.

English Bill of Rights, A.D. 1689.

The American patriots of 1776 in framing our Declaration of Independence quoted with slight modifications many of these phrases of this document. –David Trumbull

Declaration of Independence, A.D. 1776.

The American Revolutionary War began April 19, 1775, a date celebrated as a public holiday in the Commonwealth of Massachusetts and the State of Maine. The war became a fight for independence with the July 1776 adoption by the Americans' Continental Congress of the Declaration of Independence.

The nations of old Europe developed organically. People living in the same region and speaking the same language or observing the same customs came to be gathered under one king. Thus emerged the Kingdom of England, the Kingdom of France, the Kingdom of Spain, etc. America—meaning the United States—became a nation quite differently, by subscribing to an idea, a theory of government. We, through our representatives in the Continental Congress, declared: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness...David Trumbull

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The gentleman had mentioned the treaty of peace in a manner as if our independence had been granted us by the king of Great Britain. But that was not the case; we were independent before the treaty, which does not in fact grant, but acknowledges, our independence. We ought to date that invaluable blessing [of independence] from a much older charter than the [Paris] treaty of peace–from a charter which our babes should be taught to lisp in their cradles; which our youth should learn as a carmen necessarium, or indispensable lesson; which our young men should regard as their compact of freedom; and which our old should repeat with ejaculations of gratitude for the bounties it is about to bestow on their posterity: I mean the Declaration of Independence, made in Congress the 4th of July, 1776.Charles Cotesworth Pinckney, South Carolina House of Representatives, January 18, 1788

Articles of Confederation, A.D. 1777.

Massachusetts Constitution, A.D. 1780.

Treaty of Paris, A.D. 1783.

The American negotiators, John Adams, Benjamin Franklin, and John Jay, secured from one of the largest and most sophisticated world powers a treaty which contained not only an unconditional acknowledgment of American independence, but also important provisions establishing the territory of the United States as stretching from Canada to Florida and from the Atlantic to the Mississippi. American commercial interests were address with a provision for Americans to continue being permitted to fish the waters of the Atlantic off Canada.

The Northwest Ordinance, A.D. 1787.

This is the single most important piece of legislation in the Confederation period. The importance of the statute, aside from providing for orderly westerly settlement, is that it made clear that the new states would be equal to the old and settlers of the territories would be equal citizens of the United States, enjoying all of the rights that had been fought for in the Revolution. Where the Articles of Confederation lacked a bill of rights, the Ordinance provided one that included many of the basic liberties the colonists had considered essential, such as trial by jury, habeas corpus, and religious freedom. The Northwest Ordinance would, with minor adjustments, remain the guiding policy for the admission of all future states into the Union.

U.S. Constitution, A.D. 1787.

The Federalist Papers

Universal Declaration of Human Rights, A.D. 1948


/1/ Fortescue, A. (1910). Justinian I. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved January 30, 2009 from New Advent: http://www.newadvent.org/cathen/08578b.htm)