The English Bill of Rights and Its Influence on the
UGA Law Class of 2008
I. Enactment of the English Bill of Rights
The English Bill of Rights was enacted by the English Parliament and singed into law by King William III in 1689. It is one of the fundamental documents of English constitutional law, and marks a fundamental milestone in the progression of English society from a nation of subjects under the plenary authority of a monarch to a nation of free citizens with inalienable rights. This process was a gradual evolution beginning with the Magna Charta in 1215 and advancing intermittently as subsequent monarchs were compelled to recognize limitations on their power.
The establishment of the English Bill of Rights was precipitated by repeated abuses of power by King James II during his reign from 1685 to 1689. Among these abuses, he suspended acts of Parliament, collected taxes not authorized by law, and undermined the independence of the judiciary and the universities. He interfered in the outcome of elections and trials and refused to be bound by duly enacted laws. Furthermore, he attempted to impose Catholicism on a staunchly Protestant nation through the persecution of Protestant dissenters and the replacement of Anglican officials who refused to acquiesce in his illegal acts.
November of 1688 William of
II. Structure of the English Bill of Rights in English Constitutional Law
Unlike the United States Constitution, which sets forth the rights of citizens and the relationship between governmental bodies in a single comprehensive document, English constitutional law is comprised of a number of different documents the force of which has steadily grown over the years. Many of the rights of Englishmen are enshrined in the Magna Charta rather than the English Bill of Rights, most notably the right to due process and the Writ of Habeas Corpus.
from guaranteeing specific freedoms, the English Bill of Rights also serves to
tie up certain loose ends resulting from the flight of James II to continental
The first section of the English Bill of Rights sets out an enumeration of grievances against James II, much like the enumeration of grievances in the United States Declaration of Independence against George III. The second section of the English Bill of Rights sets forth a declaration of thirteen ancient rights and liberties which the document is intended to protect. These largely mirror the enumerations of error from the preceding section, and it is these rights that we will analyze in more detail. The remainder of the English Bill of Rights establishes the sovereignty of William and Mary and provides for their succession. It also provides that no Catholic may inherit the throne and no king may marry a Catholic. This was a reflection of the role that religion played in the Glorious Revolution, and the deep-seated fear the English people held of being subjects of a Catholic dynasty.
of Rights and their Corollaries in the
Items 1 and 2 under the enumeration of rights provide that no king may suspend or dispense with laws or the execution of laws by regal authority without the consent of Parliament. This was a response to King James’ efforts to suspend Habeas Corpus and the Test Act.
These items are mirrored in the U.S. Constitution’s clause requiring the president to faithfully execute the laws. The president’s duty to faithfully execute the laws under the U.S. Constitution is effectively equivalent to the prohibition against suspension of the laws under the English Bill of Rights. The president is not permitted to refrain from executing the laws as duly enacted by congress and interpreted by the judiciary. This duty was recently used to compel the Environmental Protection Agency to regulate greenhouse gas emissions as required by the Clean Air Act. It has also led to recent controversy surrounding President Bush’s extensive use of signing statements, which purport to interpret acts which he is signing into law and potentially limit their application.
The third substantive provision of the English Bill of Rights declared the Court of Commissioners for Ecclesiastical Causes, and all courts of like nature, to be illegal and pernicious. This served as an opening salvo in the long fight to create an independent judiciary that would execute the laws as written rather than imposing the will of the King. Though the Court of Commissioners For Ecclesiastical Causes was particularly unpopular with the English people, the Court of Kings Bench had been likewise made a tool of the king which failed to uphold the rights of English subjects. Particularly while under the control of the dreaded Lord Jeffreys, the Court of Kings Bench and the Court of Chancery became completely ineffective at protecting the rights of English subjects.
Today in both
The fourth substantive provision of the English Bill of Rights simply enshrines one of the oldest and most fundamental powers of Parliament, the power to raise taxes. The Magna Charta provided that, “No scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom,” a scutage being a tax paid in lieu of military service. This injunction was not always observed in the following centuries, but by the time of the Tudor monarchs Parliament had begun to approach its modern form, and it was customary to seek their approval before raising new taxes.
Similarly, the power of the purse is relegated to Congress under the U.S. Constitution. Article I, which establishes the powers of Congress, provides that “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” No taxes may be effected by executive decree, and the spending power can frequently be leveraged with reference to other policy decisions. For instance, although the president is commander in chief of the military, he must rely on Congress to fund military expeditions.
right to petition the Crown was considered essential for protecting the
liberties of the English people.
Particularly in a time when the monarch’s power was only weakly checked,
petitions signed by respected figures of the English nobility and the
The same right is protected by the first Amendment in the U.S. Bill of Rights, which provides for, “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Amendment goes further than its English counterpart by granting a right to petition the government generally, rather than the executive alone.
This provision of the English Bill of Rights is one of the few that have not survived to this day. In medieval times, standing armies were considered a tremendous burden to the citizenry. The expense of their maintenance was a large part of this. There was also a history of quartering soldiers in individual’s houses who were often abusive towards the families which provided them with lodging. James II attempt to raise a standing army in peacetime was one of the most of his acts from the perspective of the Parliament. Many still remembered the abuses suffered under the standing army of Oliver Cromwell.
provision in the English Bill of Rights is the forbearer to the second
amendment to the U.S. Constitution. It
is based upon the premise that the best defense against tyranny is a well armed
populace. Under Cromwell, the government
was authorized to seize weapons from all Catholics or those that were deemed
dangerous to the government. In
need be said about this provision, as its meaning is relatively clear and it
provides little detail. James II
presided over one of the most blatantly rigged parliamentary elections in
English history, and the people of
This provision is the basis of
modern Parliamentary privilege, and is not to be confused with free speech
protection as it exists in the
As the story of William Williams indicates, James II found exceedingly high fines to be a convenient expedient for punishing actions that were relatively small transgressions under the criminal law. In the case of Williams, his inability to pay this fine left him entirely at the mercy of the king. He ultimately abandoned all his Whiggish talk, and allowed himself to be used by the king to accomplish objectives which were starkly opposed to his own moral sentiments. Furthermore, James II had used unspeakable horrors to frighten his subjects into blind obedience to his commands. The most famous example of this was the Bloody Assizes following the rebellion of Lord Monmouth in 1685, in which hundreds of British subjects were tried and put to death for treason in a matter of days. The trials were summary and the punishments cruel, with many of the victims hung, drawn and quartered or subjected to other unspeakable cruelties.
The equivalent provision in the United States Bill of Rights provides that copies the wording from the English Bill of Rights verbatim. Although it does not require bail to be set for all crimes, when it is it must excessive in light of the perceived evil. The Supreme Court has declared many methods of capital punishment to constitute cruel an unusual punishment including drawing and quartering, burning alive, and disemboweling, and may soon review the constitutionality of the most common form of lethal injection.
This provision was enacted in response to the practice by James II of selecting juries in politically charged cases that were more likely to return a guilty verdict, rather than selecting a fair and representative sample of the defendant’s peers. James II also attempted to try Lords of Parliaments outside the House of Lords, which violated the previously established custom that peers could only be judged by other peers. The culmination of James’ abuses of the English judiciary occurred with the Bloody Assizes, when hundreds of people were sentenced to death after biased and summary trials.
The closest corollaries to this article in the U.S. Constitution are the 5th Amendment and the 6th Amendment. The 6th Amendment in particular spells with particularity the requirements of a fair trial, including the right to an impartial jury. The 5th Amendment’s requirement of due process has been expanded by the federal courts to encompass a plethora of procedural rights which safeguard the liberty of criminal defendants.
one of the few provisions in the English Bill of Rights that was not
incorporated into the U.S. Constitution, primarily because it concerned a
problem that did not occur in
Unlike the United States Congress,
Parliament was a body that met infrequently at the time the English Bill of
Rights was passed. The king had the
power to summon and dissolve Parliament as he wished. It was possible for a king to summon a
Parliament at the beginning of a reign to approve taxes, and then dissolve it,
as James II did, for the remainder of his reign. Parliament could attempt to avoid this by
only approving taxes for limited periods, but the Parliament under James II had
been too compliant to do so. After the
English Bill of Rights it became customary for Parliament to meet at least once
per year, and as the frequency of its meetings increased, so did it’s
importance. This custom served as the
basis for the rule in the
with the Magna Charta, the Habeas Corpus Act, and a few other documents, the
English Bill of Rights serves to enshrine the rights of Englishmen with respect
to their government. The Bill of Rights
and the revolution which produced it marked a dramatic turning point in English
history, at which time absolute monarchy finally gave way to the current system
of constitutional monarchy, and the rights of English subjects were no longer
to be dispensed with at the pleasure of the King. As the political and cultural successors of
James Bent, The Bloody Assizes,
E & G Goldsmid,
Morton Borden, The Antifederalist Papers, No. 25, Michigan State University Press, Lansing, Michigan, 1965 (1788)
Anthony F. Granucci,
Nor Cruel and Unusual Punishment Inflicted, 57
Thomas B. Macaulay, The
Charles de Secondat,
Baron de Montesquieu, The Spirit of The Laws, Cambridge University
Richard L. Perry and John C. Cooper, Sources of Our Liberties, American Bar Foundation, Chicago, Illinois, 1952
Lois G Schwoerer,
The Declaration of Rights, 1689,
 1 Will. & Mar. sess. 2 c. 2
 Kind Henry I had previously recognized legal limitations on regal power in 1100 with the Charter of Liberties, but this document primarily concerned the prerogatives of the nobility and church officials.
 Lois Schwoerer, The Declaration of Rights, 1698, p. 171 (1981)
 Clause 39 of the 1215 version of the Magna Charta reads, “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land.”
 The Writ of Habeas Corpus traces back at least as far as the Magna Charta and was ultimately codified in the Habeas Corpus act of 1679. Although it is not directly mentioned in the Magna Charta, it is deemed to be incorporated through more oblique references.
 Art. II Sec. 3 of the U.S. Constitution provides that the president “shall take care that the laws be faithfully executed”
 National Treasury Emp. Union v. Nixon, 492 F.2d 587, 604
 Charles de Secondat, baron de Montesquieu, De l'esprit des lois (The Spirit of the Laws), 1748
 Clause 12 of the 1215 version of the Magna Charta
Macaulay, History of
Antifederalist No. 25,
 Amendment III to the U.S. Constitution provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
 An Act for Settling the Militia," Ordinances and Acts of the Interregnum, Vol. 2 1320
 18 U.S.C. § 921
 2 U.S.C § 1431 et seq.
 Amendment I to the United States Constitution: “Congress shall make no law… abridging the freedom of speech.”
Macaulay, History of
 Id at 144.
 James Bent, The Bloody Assizes, p. 83-85 (1890)
 United States v. Salerno, 481 U.S. 739 (1987)
 See James Bent, The Bloody Assizes, (1890)
 Which states in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury”
 Which provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”