The English Bill of Rights and Its Influence on the United States Constitution

 

Andrew Muchmore

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.[1]  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[2] 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.

            In November of 1688 William of Orange and his wife Mary, daughter of James II, invaded England with the popular support of the English people and much of the English nobility.  He brought with him a large army comprised primarily of Dutch mercenaries, but James ultimately fled for France without significant bloodshed taking place.  In January of 1689 a Convention assembled in London to determine the succession of the English Crown.  The Convention was composed of former members of Parliament and functioned much like a parliament, but as Parliament had been legally disbanded and the Great Seal had been thrown in the River Thames, their acts did not formally carry the force of law.[3]  After much debate the Convention drafted a Declaration of Rights and offered the throne of England jointly to William and Mary.  After the accession of William and Mary and the formation of a legal Parliament, this Declaration was adapted to create a Bill of Rights which was signed into law, forever altering the balance of power between the sovereign and his subjects.

 

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[4] and the Writ of Habeas Corpus.[5]

            Aside 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 Europe and the transfer of sovereignty to William and Mary and their descendants.  It establishes that King James’ flight from England constituted an abdication of the throne, and declares William and Mary his rightful successors.

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.

 

III. Enumerations of Rights and their Corollaries in the United States Constitution

 

  • That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.
  • That the pretended power of dispensing with laws, or the executions of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

            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.[6]  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.[7]  This duty was recently used to compel the Environmental Protection Agency to regulate greenhouse gas emissions as required by the Clean Air Act.[8]  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.

 

  • That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious.

            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 England and the United States we have truly independent courts of justice, without which none of our substantively liberties could be adequately enforced.  This shift in power was influenced greatly by the political writings of Charles Montesquieu[9], who argued that power must be carefully divided between co-equal branches of government to prevent the abuse which typically results when it is vested in a single person.  The U.S. Constitution follows Montesquieu’s approach, laying out the powers of the three branches of government in Articles I, II, and III, and providing the checks and balances which each may effect with respect to the others.  Article III provides for an independent Supreme Court whose judges have life tenure, which is a far greater protection against tyranny than that provided by the English Bill of Rights.

 

  • That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.

            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.[10]  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.”[11]  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.

  • That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.

            The 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 English Church were often the only effective means of influencing the king’s decisions.   Under James II, there were many instances where petitions were brought by respected Englishmen to dissuade him from imprudent action, with the only result being harsh punishments imposed upon those that had affixed their names.[12]

            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.

 

  • That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law

            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.

            In America, before the ratification of the U.S. Constitution, there were some strong arguments made against allowing for a standing army.[13]  People feared that the military power could grow to subvert the civilian power, or that it could be wielded by an elected leader to extend his power beyond its rightful duration.  Ultimately, the practical necessity for a standing army overcame these fears.  Disciplined and experienced professional soldiers simply performed more effectively than militias in times of war.  To appease the opponents of standing armies, the U.S. Bill of Rights included a provision forbidding the quartering of soldiers in private homes.[14]  Although standing armies are now a fact of modern life, this one particularly onerous abuse has been curbed.

  • That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

            This 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.[15]  In America, the possession of the arms by the general populace allowed for the creation of militias which ultimately overcame the English Army.

            In both England and America, the right to bear arms has always been one of the most controversial of constitutionally guaranteed rights.  England effectively reversed this privilege with the Firearms Act of 1920.  That act required subjects to receive a certificate from the police in order to legally posses a gun, and that certificate was not granted as a simple ministerial act as it is with background checks in the United States.  The ability of the English to possess weapons has been limited much further under subsequent firearms acts.

            In the United States, the right to bear arms is protected much more strongly.  The second amendment to the U.S. Constitution provides that, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The meaning of this provision has been highly contested, and it is not generally viewed in an absolute sense anymore.  The right has been limited by the Brady Bill[16], which required background checks before weopons purchases, and has been further limited by legislation banning assault rifles and automatic weopons.  Although the second amendment was never viewed in an absolutist sense, many now believe that it only protects the rights of the states to maintain their own militias, and does not extend any right to individuals.  The issue has not been revisited by the Supreme Court in many years, and the contours of the second amendment are likely to remain hazy until that happens.

  • That election of members of Parliament ought to be free

            Little 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 England were wary of seeing his actions repeated.  In the aftermath of the Glorious Revolution, the quality of elections has been consistently better.  English Elections are now overseen by an independent Electoral Commission, whose responsibility it is to assure that elections are free and fair.  The rules for elections in the United States are laid out in the United States Constitution in Articles I and II and various amendments.  Further details have been laid out in subsequent federal legislation, but the majority of electoral law is determined by state governments.  Federal elections in the United States have been monitored by an independent Federal Election Commission since 1975.[17]

  • That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament

          This provision is the basis of modern Parliamentary privilege, and is not to be confused with free speech protection as it exists in the United States.  The provision simply means that members of Parliament are free to speak and debate in any manner they wish in open Parliament, and what they say is not to be questioned by the Crown or the courts.  This falls far short of freedom of speech as enshrined in the U.S. Bill of Rights[18], which provides far-reaching protection of speech and expression by the common citizenry, vitiated only by a small number of limited exceptions.  Open political debate is essential to the governance of a free people.  Under James II, members of Parliament were constantly in fear of triggering the royal displeasure, and could subject themselves to serious risks by speaking out too strongly against the king in open Parliament.  One incident in particular which aroused the concern of members of Parliament was the prosecution of Sir William Williams for seditious libel.[19]  Williams had published a published a pamphlet against James II before James had acceded to the throne.  Though the pamphlet would have qualified as libel if Williams had been a private citizen, it was the understanding at the time that he should be free from prosecution due to parliamentary privilege.  The court refused to accept this defense, and ultimately fined him 10,000 pounds, an inconceivable sum of money at the time.  This action had a chilling effect on other members of Parliament, leaving them fearful of speaking up forcefully against the king after that point.

  • That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

            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.[20]  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.[21]  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.[22]  Although it does not require bail to be set for all crimes, when it is it must excessive in light of the perceived evil.[23]  The Supreme Court has declared many methods of capital punishment to constitute cruel an unusual punishment including drawing and quartering, burning alive, and disemboweling[24], and may soon review the constitutionality of the most common form of lethal injection.

  • That jurors ought to be duly impaneled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

            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.[25]

            The closest corollaries to this article in the U.S. Constitution are the 5th Amendment[26] and the 6th Amendment.[27]  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. 

  • That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.

            This is 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 America.  Under English law, a person convicted of treason would have all his property forfeited to the Crown.  Prior to the Glorious Revolution, the king would frequently promise such fines and forfeitures to his friends and allies as a way of securing their loyalty, and these parties would then have a vested interest in the conviction of the accused.  As this practice was found onerous to the English people, it was banned by this article

  • And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

            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 United States under Article I, Section 4 of the U.S Constitution that Congress must meet at least once per year.

III. Conclusion

            Along 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 England, we Americans owe a tremendous debt to the men who risked life and limb to secure these rights.  As this comparison should make clear, virtually every right that we now hold to be natural and inviolable was first propounded and defended by a small number of Englishmen more than three centuries ago.  It is important that we remember hard won these rights were, lest we allow them to become diluted in the generations to follow.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IV. Bibliography

 

James Bent, The Bloody Assizes, E & G Goldsmid, Edinburgh, England1890

 

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 Cal. Law Rev., 839 (1969)

 

Thomas B. Macaulay, The History of England, Penguin Classics, New York, New York, 1979 (1849)

 

Charles de Secondat, Baron de Montesquieu, The Spirit of The Laws, Cambridge University Press, Cambridge, England, 1989 (1748)

 

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, Johns Hopkins University Press, Baltimore, Maryland, 1981

 

 



[1] 1 Will. & Mar. sess. 2 c. 2

[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.

[3] Lois Schwoerer, The Declaration of Rights, 1698, p. 171 (1981)

[4] 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.”

[5] 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.

[6] Art. II Sec. 3 of the U.S. Constitution provides that the president “shall take care that the laws be faithfully executed”

[7] National Treasury Emp. Union v. Nixon, 492 F.2d 587, 604

[8] Massachusetts v. E.P.A., 127 S.Ct. 1438

[9] Charles de Secondat, baron de Montesquieu, De l'esprit des lois (The Spirit of the Laws), 1748

[10] Clause 12 of the 1215 version of the Magna Charta

[11] U.S. Constitution Art. I Sec. 7

[12] Thomas Macaulay, History of England, Chapter VII p. 277 (1848)

[13] Brutus, Antifederalist No. 25, New York Journal (1788)

[14] 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.”

[15] An Act for Settling the Militia," Ordinances and Acts of the Interregnum, Vol. 2 1320

[16] 18 U.S.C. § 921

[17] 2 U.S.C § 1431 et seq.

[18] Amendment I to the United States Constitution: “Congress shall make no law… abridging the freedom of speech.”

[19] Thomas Macaulay, History of England, Chapter VIII p. 144 (1848)

[20] Id at 144.

[21] James Bent, The Bloody Assizes, p. 83-85  (1890)

[22] U.S. Constitution Amend. VIII

[23] United States v. Salerno, 481 U.S. 739 (1987)

[24] Wilkerson v. Utah, 99 U.S. 130 (1878)

[25] See James Bent, The Bloody Assizes,  (1890)

[26] 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”

[27] 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.”